ALEXANDER L. KAPLAN, P.A.
COUNSELOR AT LAW
Florida and New York Bars
~SERVING CLIENTS THROUGHOUT FLORIDA SINCE 1986~
The hiring of a Lawyer should never be based on advertising alone;
always ask to see the Attorney's qualifications and experience.
We have two offices to serve you better:
The Dutchess Centre Executive Offices, 9853 North Tamiami Trail
(US 41), Suite 220, Naples, Florida, 34108
Telephone: 1-239-566-8675
~~~~
One Park Place, Suite #240
621 N.W. 53rd Street, Boca Raton, FL., 33487.
1-877-LAW-ALEX
(1-877-529-2539)
HOURS AT BOTH OFFICES ARE BY APPOINTMENT ONLY
Alexander L. Kaplan, Esq., has been practicing Personal Injury and Medical Malpractice Law in New York and Florida since 1976. He has had several Million Dollar Plus verdicts and has had a number of settlements in this range as well. He has been appointed Lead Counsel or has sat on Plaintiff's Committees in several Class-Action type litigations and is an experienced Trial Attorney.
This firm is currently a participating Attorney Service-Provider in many pre-paid and legal referral programs, including :
OCCUPATIONAL HEALTH SYSTEMS
ARAG (Formerly known as MIDWEST LEGAL SERVICES)
HYATT LEGAL
AMERICAN POSTAL WORKERS UNION LEGAL PLAN (APWU)
CONSOLIDATED LEGAL PLANS
OMNILAW LEGAL PLANS
GROUP LEGAL SERVICES INC.
CALDWELL LEGAL USA
COUNTRYWIDE PREPAID LEGAL SERVICES
LEGALLINE PREPAID LEGAL SERVICES
LEGALWISE PREPAID LEGAL SERVICES
PREPAID LEGAL SERVICES INC.
AARP LEGAL SERVICES NETWORK *Special Message for AARP Members; see below!
FLORIDA EDUCATION ASSOCIATION
UNITED AUTO WORKERS LEGAL SERVICES
NATIONAL EDUCATION ASSOCIATION
MYCOUNSEL.COM
AFL-CIO
CLC
As a member of these plans, you may be entitled to reduced fees for services or your fees will be paid by the plan itself with no out-of-pocket costs to you. Please consult your plan handbook, administrator, etc. for details.
IF YOUR PLAN IS NOT ON THIS LIST, LET US KNOW! WE ARE ALWAYS LOOKING FOR NEW PLANS TO SERVICE OUR CLIENTS BETTER!
DO YOU HAVE A GROUP OF PEOPLE WHO WANT THEIR OWN PRIVATE, PRE-PAID LEGAL SERVICES PROGRAM? IF SO, CALL US...WE MAY BE ABLE TO CUSTOMIZE A VERY AFFORDABLE AND COMPETITIVE PLAN FOR YOU. THIS IS AVAILABLE IN THE FOLLOWING COUNTIES OF FLORIDA ONLY: MIAMI-DADE, BROWARD, PALM BEACH, MARTIN, INDIAN RIVER, BREVARD, COLLIER, LEE, CHARLOTTE COUNTIES.
Attention, AARP MEMBERS: did you know that your AARP Membership includes membership in the AARP Legal Services Network?
You are entitled to discounts, free consultations, etc. If you have a group, the AARP will be happy to sponsor a BRAND NEW PROGRAM for you..."THE LEGAL CHECKUP SEMINAR". This program will help your members determine the state of their "Legal" health. The program involves a workbook filled out by the participants and a Seminar by Alex Kaplan, Esq. The purpose is to help you avoid legal problems before they require the services of an Attorney. CALL TODAY for more details at 1-877-LAW-ALEX on the East Coast; 1-239-566-8675 on the West Coast. Currently, Mr. Kaplan is the only AARP Attorney in Florida offering this program! OVER 5,000 PEOPLE HAVE SUCCESSFULLY COMPLETED THE COURSE WITH MR. KAPLAN IN THE PAST 8 YEARS!
YOU DO NOT HAVE TO BE AN AARP MEMBER TO ATTEND THE "LEGAL CHECKUP SEMINAR"!
The "LEGAL CHECKUP SEMINAR" is a self-help program designed to let you determine the state of your legal health; help you sort out potential problems before they become major problems; and provide you answers to common questions. It is NOT a solicitation for your business. Participants register in advance and receive a workbook to complete. They then attend a Seminar with Mr. Kaplan and receive more information on the covered topics and other topics as well. There usually is a small fee involved to cover the cost of reproduction of the materials, depending on the sponsoring agency.
UPCOMING SEMINAR DATES:
PLEASE CALL FOR INFORMATION!
CALL FOR FURTHER INFORMATION: 239-566-8675
TAKE A LOOK AT THE Q&A PAGE BY THE LINK BELOW...THERE ARE ALWAYS INTERESTING ARTICLES AT THE SITE!
TO GO DIRECTLY TO THE Q&A PAGE, CLICK HERE
CURRICULUM VITAE
St. John's Law School - Juris Doctor - 1974
Queens College, CUNY - Bachelor of Arts - 1971
All Courts of the State of New York, Southern and Eastern District Courts of New York (Federal), Second Circuit Court of Appeals (Federal), All Courts of the State of Florida, Southern District of Florida (Federal).
HARRY LIPSIG, PC - 1975-1977
IVAN SCHNEIDER, PC - 1977-1979
JEROME EDELMAN, PC - 1979-1985
PRIVATE PRACTICE - TRIAL LAWYER - 1985 to the Present.
National Fire Protection Association (NFPA); Past Lecturer NFPA Annual Meetings; Honorary Uniformed Fire Officers Association, FDNY; Fire Chiefs Association, FDNY; Honorary Deputy Chief, FDNY; Air Force Association; Pro Bono Counsel to Vietnam Veterans of America (VVA); Volunteer Counsel for the American Radio Relay League (ARRL); Former Director of Emergency Services, Florida Wing, Civil Air Patrol (CAP), USAF Auxiliary; Former Group Commander of Group 5 (Palm Beach County), CAP; Former Vice Commander of Group 6 (Palm Beach, Broward, Miami-Dade and Monroe Counties), CAP; Currently Serving Legal Officer of Group 5, Florida Wing, CAP; Lt. Colonel, Civil Air Patrol.
Electronics: Collects and Restores Antique Radios; Amateur Radio Operator (WA4AK); Flying: holds FAA Private Pilot's License with Endorsements for Complex Aircraft and Conventional-Geared Aircraft.
Fully Experienced Trial Lawyer with Extensive Experience in Auto, Construction, Fire, Products Liability, Malpractice, Aviation, Premises and Similar Negligence Cases. Also Practices in the fields of Corporate, Contract, Law Enforcement Issues, Communications Law, Business, Real Estate, Wills, Estates and Probate.
Graduate: USAF Squadron Officers School, USAF Air Command and Staff College, USAF Air War College, USAF Rescue Coordination Center Senior Mission Commander's School; Mission/Incident Commander USAF Air Search and Rescue (CAP).
TALK TO US!
Have a Question? Need some information? EMAIL us at
lawalexkaplan@aol.com
It should be understood that we can only provide answers to general questions, based on our knowledge of Florida and New York law. Answers to locality-specific questions and questions that deal with your Local or State laws should be addressed to a local Attorney in your area. Most local and state Bar Associations maintain a legal assistance/referral program wherein you can either get generic advice or actually speak with an Attorney, usually for a modest fee which goes to support the program.
QUESTIONS AND ANSWERS OF GENERAL INTEREST WILL BE PUBLISHED PERIODICALLY ON THIS WEB PAGE. THE IDENTITY OF THOSE ASKING THE QUESTIONS WILL ALWAYS REMAIN ANONYMOUS, AND THE ATTORNEY-CLIENT PRIVILEGE WILL ALWAYS REMAIN IN FORCE.
QUESTION AND ANSWER LEGAL FORUM
Besides questions and answers, check this forum for articles of general interest concerning the law.
copyright 2008 all rights reserved.
ALEXANDER L. KAPLAN P.A.
COUNSELOR AT LAW
Updated 12/18/08
WELCOME! This is our Question and Answer Forum. Here, you can find questions, answers and advice of a general informational nature. We will also periodically publish articles about your rights and the law at this site. All material on this site is copyrighted by ALEXANDER L. KAPLAN, P.A., however, you may reproduce or download any material for your own private, noncommercial use.
To send a question, use our email link: lawalexkaplan@aol.com
We will respond to your question, usually within 24 hours in a return email. Frequently asked questions will be published on this site for general information. Your identity and the specific circumstances of your inquiry will at all times remain confidential and subject to Attorney-Client Privilage.
DISCLAIMER: (Uh Oh, here it comes!) Please remember that we can only give general advice based on Florida and New York law. Therefore, we cannot give specific legal advice when the subject matter is covered by local or state law outside of these two states. Usually, we can give you some general advice based on common law, but you should get locality-specific legal advice from a local attorney. Most State and Local Bar Associations maintain a Legal Referral Program. Usually, for a modest fee, you will be given a consultation with a local attorney who is familiar with your type of problem. You are encouraged to seek such advice after talking with us on this Forum.
A FIREFIGHTER'S RIGHT TO SUE FOR INJURIES OR DEATH
by ALEXANDER L. KAPLAN, ESQ.
As you know, being a firefighter/paramedic is, statistically, one of the most dangerous jobs in the nation. With the possibility of hazmat, terrorism (foreign and home-grown), weapons of mass destruction, biological weapons, etc., the danger for first-responders has grown geometrically in the past few years. Yet how many of you really know and understand your rights to sue a 3rd person who causes or contributes to your injury or even your death on the job? It could be a drunk driver hitting your apparatus while on a run, or it could be severe lung damage as a result of being exposed to illegally stored toxic chemicals.
The possible situations are just too numerous to discuss completely here. My basic point is this: if you are seriously injured on the job or even killed, your family will be left in a serious financial hole. Have you looked at your pension/disability plan recently? Most members are part of the State retirement system, which provides very little by way of disability or retirement benefits. So why not consider suing the person who cost you your livelihood and job?
Up until 1990-91, Florida was one of the few states still holding onto an antiquated and unfair doctrine called The Fireman's Rule. In a nutshell, this rule stated that a fireman (or a policeman) who entered upon the property of another in the discharge of his duty occupied the legal status of licensee, so that the property owner only owed him a duty to refrain from wanton negligence or willful misconduct which would injure him. This was a policy decision designed to protect property owners, since to require an owner to exercise (in regard to firemen acting in an emergency) the high degree of care owed to an invitee would be impractical and unreasonable. What this means is that a property owner owes very little duty of care to a licensee (the fireman), but owes a great deal of care and thus assumes responsibility for most injuries to an invitee.
Florida Statute 112.182 abolished the Fireman's Rule, thus giving you the status of an invitee, instead of a licensee.
lawalexkaplan@aol.com
copyright ALEXANDER L. KAPLAN, ESQ. 2008; all rights reserved.
THE FEDERAL FAIR CREDIT REPORTING ACT
by ALEXANDER L. KAPLAN, ESQ.
I've had a number of calls from different plan members in the past few months concerning their credit problems. It usually crops up when you apply for a bank loan (auto or home mortgage, or perhaps a refinance). The bank calls you and either denies you credit or will give you the loan but at a substantially higher rate of interest. Why, you ask. The bank tells you you've got a collection item on your credit report. You've been sitting in the firehouse kitchen the whole time, not knowing what your credit reports say, and when you go for a loan you trip off the landmine which explodes, decapitating what you thought was a good credit history. After all, you pay your bills on time, have never been late, so what's the problem? The problem is what someone else has reported against you without you ever knowing about it until it's too late for you and your credit!
You need to know the game and how to play it. First, when your bank or someone wants you to have a credit card, they run a credit check and report on you. This can be done without your knowledge or permission! This is processed by one of the three national credit reporting agencies (CRAs). The CRA gathers information from various sources (banks, credit card companies, collection agencies, etc.) who report the info to the CRA. If you want to know what the report says, you can contact the CRAs and request a report on yourself for a fee. This will tell you what each report says. When you get the report, they will include a form for you to respond to any derogatory material in your file, and they must investigate your story and publish your response along with the derogatory material. Each one of us should do this once a year...it's worth the cost in the long run. If you have been denied credit, you can request a free copy of the report from the CRA.
But what do you do when you believe there is material which is false or inaccurate? A federal law known as the Fair Credit Reporting Act ("FCRA") (Title15, United States Code, section 1681) is there to protect you and gives you rights. If you see a derogatory entry on your credit report or if you are contacted by a collection agency, you have the right to demand information from the collection agency as to the nature of the bill, date, who rendered the bill, etc. They must provide this to you within 30 days. If they fail to do so they have violated the FCRA and you could sue them. You can advise the collection agency that you are disputing the bill. If you do so in writing and send it certified mail, the collection agency must not only stop all collection activity against you, they must also notify any CRA they have reported you to of the dispute. This doesn't stop legal action against you, but it stops the harassing phone calls.
The FCRA prohibits anyone (landlord, collection agency, credit card company, etc.) from providing information to a CRA about you if they know or consciously avoids knowing that the information is false or incorrect. There is also a duty on them to update information to the CRA if they find out that the information is false, incorrect, or that you are disputing it. Another part of the FCRA allows you to sue them if they are negligently or willfully non-compliant with these provisions.
Know too that most of these cases are too small for a lawyer to handle, but you can use Small Claims Court. One plan member went for a new home mortgage. The bank held him up for about a month, because of a collection item from a collection agency. The member had never heard of this before and called the collection agency. He finally learned it was for a hospital bill rendered about 5 years before. The problem was, the member had full medical coverage and the bill should have been paid. He called Blue Cross (his medical plan) who advised him that they had never received a hospital bill! The hospital claimed they sent it in; that it went unpaid, and that they finally sent it to the collection agency. The member had never heard from either the hospital or the collection agency; they had simply filed a bad credit report against him with the CRAs, despite the fact that in the following years the member had been to the hospital several times for other treatment and no one had ever said anything to him! The member sued for violation of the FCRA, alleging that the reported information was false, defamatory, etc., in that he had full medical coverage that would have paid the bill if only the hospital had submitted it. Ultimately the member was paid $10,000 in damages from the hospital and the collections agency...score one for the little guys.
The point of all this is: don't wait until you need credit to find out that your credit report has problems. Obviously, if you have legitimate debt, you must pay it or suffer the consequences; but in today's world of interconnected computers, there is too much chance that false or incorrect material will get entered on your credit record. You can act now to see if it exists and correct it before the landmine blows up in your face.
lawalexkaplan@aol.com
copyright ALEXANDER L. KAPLAN, ESQ., 2008 all rights reserved.
UNINSURED MOTORIST INSURANCE:
WHAT YOU NEED!!!
by ALEXANDER L. KAPLAN, ESQ.
"The Season" is just around the corner, and with it more people, more cars, more traffic congestion, more of everything. Your chances of being involved in an auto accident increase geometrically with the number of cars on the road. In the past few months, several brothers and sisters have come to me after having been involved in auto accidents, some in their own cars, some in department vehicles. You must always remember that just because you have red lights and a siren and are inside a big red fire apparatus, that doesn't necessarily mean the other driver gives a damn! Maybe the other guy (or gal)'s 2 billion watt stereo system was cranked up all the way and they were so stunned by the beauty of the sound they didn't see/hear you coming! In one case, a department ambulance was destroyed by a private vehicle and the paramedics and victim inside were injured.
Florida requires that you have "auto insurance" in order to register a vehicle or renew your tag. What most of us don't realize is that the auto insurance required is not "full coverage". All that Florida requires is PIP ("NO-FAULT" insurance: $10,000 to pay for medicals and lost wages of you and everyone in your car) and PROPERTY DAMAGE ($10,000 to pay for damage to the other vehicle if it's your fault). FLORIDA DOES NOT REQUIRE PERSONAL INJURY COVERAGE TO PAY THE OTHER PERSON(S) FOR THEIR INJURIES AND PAIN AND SUFFERING! According to the FDLE, about FORTY PERCENT (40%) OF THE DRIVERS ON THE ROAD DO NOT CARRY PERSONAL INJURY COVERAGE TO PAY YOU FOR YOUR INJURIES WHEN THEY HIT YOU. This is a sobering thought. What do you do if a drunk driver takes out your wife and kids one day and the drunk is carrying no insurance to pay for their injuries? In several of the cases that came to me recently, this is exactly the situation. To put it more personally, in the past 16 years, between my wife and I, we have been hit a total of 5 times by other cars. In 3 of those accidents the other drivers were not insured!
You should immediately take out your insurance policy and look at the "declarations page". This is the page which lists your coverages and what you pay for them. You get one of these every six months when they send you a bill for your premium. You are looking for an optional coverage called UNINSURED MOTORIST aka "U/M". If you don't see it, you should call your broker or agent FORTHWITH and get the coverage. The cost is minimal and the protection it gives you is priceless. You can get it in any amount up to what you carry yourself for personal injury coverage to protect other cars. That is, if you carry $100,000 liability coverage you can take out $100,000 in uninsured motorist coverage, and YOU SHOULD!
Let's say you get hit by that drunk driver and he as no insurance. You may have a $60,000 injury, but he has no insurance or any money to collect it from. Your attorney makes claim under your policy under your UM coverage. Your company pays you and under Florida regulations it can't raise your rates or drop your coverage simply because you make a claim under UM. UM also works as "under-insured" coverage too. Maybe the drunk as a small $10,000 policy. Your attorney collects his $10 Gs, and then goes after your company for the remaining $50,000.00. THAT'S WHY UNINSURED MOTORIST IS SO IMPORTANT.
The other important thing you can do is called "STACKING". If you have more than one car on your auto policy, for a very small fee you can request "Stacking". In the event of a claim, your policy "stacks" the benefits of all your cars, one on top of the other. This increases your available benefits in the event of an accident. If you have 3 cars in the family and choose to stack the benefits, in an accident you can triple the available benefits to you and your family...e.g, instead of $10,000 PIP and say $100,000 in UM coverage, now you can triple this to $30,000 in PIP coverage and $300,00 in UM coverage. If you have two cars that are stacked, then the benefits are doubled. For the small cost of these benefits, it is to your benefit to provide this protection for yourself and your families. DON'T GET CAUGHT WITHOUT THIS INSURANCE IN THE EVENT OF AN AUTO ACCIDENT! And no, I don't have any stock in insurance companies, but I will put a plug in now for one of the cheapest and best I've ever dealt with...USAA.
USAA was created years ago for military officers and their families. A couple of years back the company was opened up to enlisted personnel and their families too. Life, health, auto, property and other coverages are available. I've priced every major company around and USAA consistently is cheaper by as much as 25% over other companies, and they are a pleasure to deal with. If you are active, reserve, national guard, a vet or if immediate family (parent, brother, sister, spouse, etc.) served you can qualify for membership. Just call them and talk about it...I think you will be very pleasantly surprised. You can reach them at 800-531-8080. I've been a member now for many years and I've saved a small fortune on my premiums....you can too!
lawalexkaplan@aol.com
copyright ALEXANDER L. KAPLAN, ESQ., 2008 all rights reserved.
FLORIDA "SLIP AND FALL" LAWS
CHANGED FOR THE BETTER!
By ALEXANDER L. KAPLAN, ESQ.
For more years than we can remember, Florida did not have a "plaintiff-friendly" (you, the person suing the store is the Plaintiff) body of law when it came to slip and fall type accidents. A slip and fall is where you walk down the aisle of your local Public, Wynn Dixie or Albertson's and slip and fall down on some crud left in the aisle and hurt yourself. Could be water from a refrigerator unit, oil from a spill, squashed banana, onion skin, etc. The old law was that you, as Plaintiff, had the burden of proving that the store had "notice" of the condition. Notice was either actual or constructive. Actual notice is where you can show the store actually knew of the hazard. Maybe there was a PA announcement for a "cleanup in aisle 7" and 30 minutes later you slip and fall on the mess that noone ever cleaned up. That's "actual notice" and was usually almost impossible to prove. Then there was "constructive notice" which is where you say that the condition existed for such a period of time that the store knew or should have known about it's existence and failed to clean it. Most cases were proven this way...discolored banana on the floor, footprints and wheel marks all over the floor from the spillage area, that's what you had to show a jury in order to succeed in your claim. Trust me, this was not easy to do; more Plaintiffs were unsuccessful than successful under this law, because all the store had to claim was that it "made the rounds" every hour to look for spillages and cleaned them when they were found.
On November 15, 2001, the Florida Supreme Court leveled the playing field bu issuing an opinion in a case called OWENS V. PUBLIX SUPERMARKETS (Case #SC95667) that has redrawn the law that controls slip and fall accidents. This case reconciled varying opinions of lower courts throughout Florida, and has now established one set of rules for everyone. Under the new law, if you have a slip and fall in a store or business, the "existence of a foreign substance on the floor...that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition. Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable resumption of negligence arises."
Now understand that this is condensed down from 23 pages of law and opinion. But what it means is that if you slip on that piece of banana, you don't have to go any farther. The burden then shifts to the store/business owner to prove that he did in fact exercise reasonable care in maintenance of the premises. In the future, this will make it easier for an injured person to make a claim against a store owner/operator and succeed!
copyright ALEXANDER L. KAPLAN, ESQ., 2008 all rights reserved.
SMALL CLAIMS: THE PEOPLE'S
COURT
by Alexander L. Kaplan, Esq.
You're having a dispute over a fence with a neighbor; you have bought furniture which wasdelivered damaged and the store won't refund your money; or maybe the auto repair shopcharged you more than they said they would and the car still isn't fixed. Who do you turn to? The Small Claims Court of course!
Small Claims Court is the real "People's Court". Before Judge Wapner, before Judge Judy, before all the hype of TV, Small Claims has resolved complaints of people just like us. No lawyer is needed; in fact, the Judges prefer it if you represent yourself. The only exception to this is if a corporation is involved; such parties need to be represented by a lawyer. Everyone else comes in "pro se": on their own.
Small Claims Court handles disputes up to $5,000.00. If your case involves more than this, you must proceed in either County Court (up to $15,000) or Circuit Court ($15,000 and up). In these courts a lawyer becomes almost a necessity; "pro se's" are tolerated but not encouraged; the rules are too complex.
OK, so you think you have a case; what do you do? First, determine exactly who you are suing. If an individual, you'll need their name and address (business or residence; so long as the Sheriff can find them to serve them). If a business, corporation, partnership, operating under an assumed name, etc., you need to find out the actual name of the company and who is to be served. Start with the name on the contract, invoice, business card, license, etc. of the company. All corporations are required to specify a "designated agent for service of process" (who you must serve with papers). Other types of companies will file the names of officers and their addresses; usually you must serve one of these. You can obtain this information by calling Tallahassee: Division of Corporations of the Secretary of State. You can also get this "online" at the Secretary of State's website in the internet.
Oncce you know who you are suing, go to see the Clerk of Small Claims. In Collier, the Clerk is located at the Courthouse, 3301 Tamiami Trail East, Naples (Government Center). In Lee, the Courthouse is at 1700 Monroe Street in Ft. Myers. Tell the Clerk you want tosue in Small Claims; they'll hand you a simple form. Put down your name and address as Plaintiff; the name and address of the person or company you are suing (Defendant), along with the name and address of the "agent for service of process" if any. Simply state what you are suing about and how much you are suing over. If the case involves a contract, sales invoice, etc., bring a photocopy and give it to the Clerk to attach to the form. You pay the fees (varies according to what you are suing for) and that's it! The Sheriff will make service the party for you. The Clerk will either give you a "return date" right there or mail it to you shortly. On the return date you come to Court for a Preliminary Hearing. Get there a few minutes early and check in with the Clerk in the Courtroom. The Judge will come in and call the Calendar (the cases to be heard that day). When you hear your case, answer "Plaintiff ready". The Judge will probably ask you what the case is all about. Be prepared to state the case clearly and simply in as few words as possible. For example, "Defendant promised to repair my car for $550. I paid the money but it still doesn't work right". The Judge will ask the Defendant if he/she admits or denies your claim. If Defendant admits the claim, the Judge will try to work out the damages. If not, the Judge may send you to Mediation.
Mediation is all sides sit down with an impartial mediator. You each tell your side of the story; the mediator then tries to see if a compromise can be worked out. If so, the case is reported back to the Judge who marks it settled. If a compromise can't be reached, the Judge will set the case for Trial and give you a date and time. He will also ask you how many witnesses you will have and how much time you will need, so give this some thought before hand. The Clerk of Court, while not being able to provide "legal assistance" will be happy to explain how things work to you.
On the Trial date you come back and tell your story in detail. You also offer evidence and witnesses. Evidence could be further bills needed to fix your car; photos of the damage, etc. If you do not have paid bills, you will need to bring in a mechanic, tradesman, etc., who will testify as to the damage, cost of repairs, etc. About 2 weeks prior to the Trial, see the Clerk about subpoenas to compel witnesses, etc.
The Trial itself is simple. You present your side of the story and the Defendant states his side. You can cross examine each other or your witnesses if you desire, but don't try to be Perry Mason! Just keep it straightforward and simple. After both sides have shown their evidence, the Judge may rule then and there or "r eserve judgment". This means the Judge wants to think about it some and will let you know the decision by mail.
If you win, the Judge will award you what he thinks is fair, plus your filing and Sheriff's fees that you paid at the beginning. Once a Judgment is entered (filed) by the Clerk on your behalf, the Clerk can provide you with information how to collect your judgment.
The right to sue is a basic right of being an American; Small Claims Court is truly the People's Court!
Please remember that this is generic information. In order to determine your specific situation, always talk to a local attorney who specializes in this area. Your City, County or State Bar can help you find such people. Questions on this or any other subject within my areas of knowledge can be directed to:
lawalexkaplan@aol.com
copyright ALEXANDER L. KAPLAN, ESQ., 2008 all rights reserved.
SELLING YOUR HOME: HOW TO AVOID
THE MINEFIELDS OF USING A REAL ESTATE PROFESSIONAL
by ALEXANDER L. KAPLAN, ESQ.
Selling your home or condo or coop has all sorts of traps and pitfalls for the unwary. It is important that you receive competent legal advice prior to finding your buyer. Whether you choose to use a real estate salesperson or sell on your own, you need to be know your rights and duties as a seller.
First off, there must be trust between you and your salesperson. If what they tell you is too good to be true, then it is. A salesperson cannot give you legal advice...you must speak with an Attorney for this. The salesperson makes his or her living by selling properties, and they tend to do this anyway they can...they will tell you what you want to hear (and for that matter, they will tell the buyer what the buyer wants to hear!). There are plenty of HONEST salespeople around, and there are plenty of DISHONEST people too. The best way to tell is to contact the regulating or licensing agency where you live. In Florida its the Department of Professional Regulation in Orlando. They can tell you if the salesperson/broker has had complaints, fines, etc. Also, use the recommendations of people you know...this may not be the best way, but a word-of-mouth recommendation can be a big help and its certainly better than nothing at all.
Always get the complete arrangement between you and the salesperson in writing. If something is written which you do not understand, review it with your attorney prior to signing the listing agreement. Be aware that there are "terms of art"...words or phrases which may seem plain enough to you but in the real estate world may mean something totally different! This is why you need to have your attorney review the listing agreement with you and explain it all before you sign. For example, you may tell the salesperson you want to list the house for 3 months. The salesperson may write down on the listing agreement that it is 6 month listing, but that the seller can "withdraw the listing after 3 months". Does this mean you can end the agreement after 3 months? NO, IT DOESN'T! What it means is that you can take the property off the market after 3 months, but if you sell it on your own during the next three months, you still owe the broker his commission! "Withdraw" does not mean the same thing as "end" or "terminate".
After reading this you may think "I'm better off on my own!"...not necessarily. A good salesperson/broker can get you a lot more exposure than you can by running ads on your own, and the broker is paying for the ads, not you. Many brokers make their deals by multiple listings, and you need a broker to access the multiple listing network. The broker will pre-screen a potential buyer before bringing them, so this saves you the trouble of having to deal with obviously unqualified buyers or people who are "just looking" (spending the afternoon looking at homes because they have nothing else to do!).
So when you want to sell your unit, be wary, keep your eyes and ears open and always direct legal questions to an Attorney. Just because a real estate person is very friendly, nice, etc., doesn't necessarily mean they have your best interests at heart. Choose a reputable person to work with and get competent legal advice each step of the way.
Please remember that this is generic information. In order to determine your specific situation, always talk to a local attorney who specializes in this area. Your City, County or State Bar can help you find such people. Questions on this or any other subject within my areas of knowledge can be directed to:
lawalexkaplan@aol.com
copyright ALEXANDER L. KAPLAN, ESQ., 2008 all rights reserved.