Wednesday, July 13, 2016

Specialize or Expert




The terms specialize or expert are not to be taken lightly when you are an attorney.  Specifically Florida Bar Rule 4-7.14 deals with using those words when advertising.  Rule 4-7.14 is titled Potentially Misleading Advertisements and states under (a)(4) that Potentially misleading advertisements include advertisements that include a statement that a lawyer is board certified, a specialist, an expert, or other variations of those terms.

What does that mean in plain English?  It means that an attorney is not a specialist or expert in any particular field unless the Florida Bar has certified them in the area.  It does not matter if they practice exclusively in the field or if they have practiced exclusively in the field for 100 years.  It also means that if an attorney advertises in any form or fashion that they are an expert or that they specialize in the field they are violating the rules of ethics provided by the Florida Bar and could be subject to punishment from the Florida Bar.

The real reason this is important.  It gives potential clients guidance as to who really is an expert and who just says they are.  The Florida Bar, as well as Florida Bar recognized organizations, have very thorough processes by which they determine who may and who may not call themselves and expert in any particular field.  If not for this rule every attorney would call themselves a specialist in any field they choose.

In order to be board certified there are many hoops that an attorney must jump through and many requirements that must be met.  You may ask, “how do you know?”  I just did it.  It took over ten months to finally get through all of the requirements, and as of the date of this post I still am not a specialist because I have to now go through another process to get it on my Florida Bar records, not to mention Texas Bar, DC Bar, and Tennessee Bar. 

What are some of the requirements to become board certified?  One of the requirements is sitting for a full day exam regarding the specialty you are attempting to get certified in.  Another requirement is going through hundreds if not thousands of your cases and disclosing particular litigation issues and opposing counsel information, not to mention personal and professional references.  The board actually reaches out to every last one of them for response.

So next time you are looking for an attorney in any field and see the term specialist or expert.  Do a little digging to make sure you are getting what that claim you are getting.  The Florida Bar and other bar associations keep a record of who is actually board certified.  In a world of banner ads that disappear in a click it is hard to know who is claiming to be a specialist and who really is a specialist.

Jason A. Burgess
904-372-4791
jason@jasonAburgess.com

Tuesday, May 24, 2016

Did You Really Lose Your Home to a Tax Deed?!



Did You Really Lose Your Home to a Tax Deed?!

The 7th Circuit Court of Appeals recently issued an opinion in In re Smith, 411 F.3d 228 (7th Cir. 2016) that may change tax deed sales forever.  Until Smith I believe that most bankruptcy attorneys felt that once a tax deed is issued on a piece of real property the previous owner was likely doomed.  Given that most case law is clear that the transfer of the property by tax deed conveys the property free and clear of most liens to the bona fide purchaser attorneys never really questioned whether or not they could get the property back, barring any deed or notice deficiency of course.

Now Smith opens up an entirely new avenue.  The Debtors’ attorney in Smith filed the Debtors in a Chapter 13 bankruptcy case after the tax deed sale in an attempt to avoid the sale as a fraudulent transfer.  The Debtors’ attorney claimed that the transfer of the property was a fraudulent transfer because the tax sale was not to a bona fide purchaser for value since the sale was WAY below the actual value of the property.

The United States Supreme Court in In BFP v Resolution Trust Corp., 511 U.S. 531 (1994) addressed a similar argument in a foreclosure sale.  The 7th Circuit differentiated Smith from Resolution because a foreclosure sale does get a reasonably equivalent value to the actual value of the property while the tax deed sale does not even come close to the reasonably equivalent value.

This could be a very good case to keep in your tool belt as a bankruptcy practitioner should a tax deed sale ever come up.  Just remember 11 U.S.C. 548 is the key.

If you have any questions or if you need help please give us a call at 904-372-4791 or email me at jason@jasonAburgess.com

Monday, September 28, 2015

Transferring Assets Prior to Filing Bankruptcy: Buyer and Seller Beware



              The majority of people who consider filing for bankruptcy protection immediately start thinking about their assets and the possibility of losing them. The desire to protect your assets from creditors is a natural one and is usually the primary reason someone considers filing bankruptcy.  Often times, this desire to protect assets leads people to transfer or sell an asset before filing their bankruptcy case.  But potential debtors should know that certain asset transfers are outright illegal under the Bankruptcy Code.  The Trustee can void (i.e. undo) these types of asset transfers and take back the transferred property for the benefit of the unsecured creditors.  In plain terms, this means that the Trustee will file a lawsuit against whoever received the payment or purchased the asset to recover the property or the cash value of the property.  This right to “clawback” property of the estate often puts debtors in very awkward situations, especially when they transferred the asset to a family member or friend who is now being sued by a United States Trustee.  The two types of illegal asset transfers are “Preferential Transfers” and “Fraudulent Transfers”.  Let’s take a look at the elements of both.
            Preferential Transfers are governed by 11 U.S.C. § 547 and there are two basic types.  The first type of preferential transfer can be referred to as 90 day transfers.  These asset transfers include any payments or transfers of property to a creditor that: (1) occurred within 90 days of filing the bankruptcy case, (2) involved money or property worth more than $600 in aggregate to any one creditor, and (3) were made while the debtor was insolvent (i.e. at a time when the amount of the debts is greater than the value of all the assets).  It is important to note that the Trustee usually does not have to prove the debtor’s insolvency with these types of transfers because bankruptcy law automatically presumes that a debtor is insolvent during the 90 days prior to the filing of their case. 
            The second type of preferential transfer can be referred to as Insider Transfers.  Insider transfers include any payments or transfers of assets to people such as family members, friends, or business partners that involved money or property worth more than $600 in aggregate to any one creditor and occurred while the debtor was insolvent.  However, instead of only looking back 90 days from the filing date, the Trustee can undo these types of transfers if they were made anytime within 1 year of filing the bankruptcy case.
            Fraudulent Transfers are governed by 11 U.S.C. § 548 and include any transfer  made within 2 years of the filing date if the Debtor: (1) made the transfer with the actual intent to hinder, delay, or defraud the creditors or (2) received less than the fair market value of the property and was insolvent at the time of the transfer.
            Any potential debtor should be aware of these types of illegal transfers and consult a bankruptcy attorney about the potential impacts on their case.  Debtors who have made a transfer that might be considered preferential or fraudulent may be able to avoid a clawback situation by simply delaying the filing of their bankruptcy case.  However, all debtors should know that hiding assets or intentionally committing bankruptcy fraud can result in dire consequences such as loss of property, inability to receive a discharge, and even criminal prosecution.  The bottom line is that if you want to transfer or sell an asset before filing bankruptcy you should talk to your bankruptcy attorney to determine if you can do so without negative consequences.

By:  Joshua B. Dawes, Attorney at The Law Offices of Jason A. Burgess, LLC
If you have questions about this or anything else please give us a call at 904-354-5065 or email us at jason@jasonAburgess.com