Happy Holidays 2015 from Hallisky & Davis

Jimmy Davis nominated as one of "10 best" Attorneys in Florida - and why this does not matter.

Imagine my surprise, and the amount of ego inflating pride I felt when I got this letter in the mail that states "Congratulations! We are pleased to announce that you have been nominated as one of the '10 Best' Attorneys for Florida. This came from an organization called the "American Institute of Family Law Attorneys".

I blushed with pride, and smiled ear to ear. I said to everybody near my P.O. Box, "Look, I'm the best attorney ever!" (I did not really do that, but you know...)

Here is the instantaneous problem with this reward. I have barely dabbled in family law. My results have been good by all accounts, but one of the 10 best? I think not. This, my curious readers, is what one calls a "vanity award". Should I pay for this award, I will instantly go from nominated to winner. Congratulations me!

Oh Vanity Award, your name is Narcissus

As a consumer of legal services, or an attorney, it should be pretty clear why these pseudo awards should not be utilized by attorneys to promote their skills. Similar to paying for a noble title, paying for an award is not only a hollow victory, but it may very well show how unethical attorney marketing may be. Consider in Florida

Rules 4-7.13(a)(2), (b)(2), (b)(3) and Rules 4-7.14(a)(2)

If an attorney were to use this on advertising material, these rules require that attorney to determine whether the advertisement contains any reference to past results that cannot be objectively verifiable; whether it omits material information; or if "literally accurate" would it have the potential to mislead a would-be client regarding a material fact.

In this case, the answer is yes, yes, and yes. Sure my past results are good, but they are normal outcomes to normal cases. I have had children returned from other states, successfully defended clients from false accusations, and resolved other more "cookie cutter" cases. There is information material to any selection of the top ten, including how much experience and the complexity of the cases undertaken and won. Finally, it is "literally accurate" that I was "nominated" as one of the top 10, but in light of everything else... would it not be reasonable that a person seeing that "award" get misled as to my abilities and reputation in the courts? Of course.

I shredded the award

What what?!? But... no, if I ever become one of the "top 10" in Florida I would rather earn it, not pay for it. In fact, I have earned

• The Guardian of Justice from Community Legal Services of Mid-Florida, Inc.; 
• The President's Volunteer Service Award from President Obama;
• The Volunteer of the Year Award from United Way;
• The Pro Bono Service Award by the Florida Bar President;
• The Volusia County Pro Bono Attorney of the Year from Community Legal Services of Mid-Florida, Inc.; and
• The One Pro Bono Award from The Florida Supreme Court, Young Lawyers Division of the Florida Bar, and the Florida Pro Bono Coordinators Association.

How much did I pay for these? Exactly $0.00, exactly as it should be.

Great, so how do I know whether my attorney's awards are earned or paid?

Look them up. Others are writing about these "vanity awards". My nomination came from American Institute of Family Law Attorneys. I believe they are simply in the business of making money from my Profession, and that those in my profession using their "award" to market themselves are misleading consumers of legal services.

I use my real awards to market myself to be sure. But if you are in the market for an attorney, beware the hype. Find out which awards are real and which are purchased filler for websites.

Pro Bono Work - Advocating for the Underserved

"I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice." _ The Florida Oath of Attorney

The other day I was criticized for fighting for a client's money. That money was, relative to the paychecks of the people in the room, small. But for some of my clients the amount in dispute was enormous. These clients, when in court for either criminal or civil issues, walk away feeling marginalized and set aside as unimportant because "the amount in dispute is not worth the court's time." 

"The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." _ Art. I, s. xxi, Fla. Const.

How the dollar value of the case means anything to any real sense of justice escapes me. Justice denied to a person simply because they are poor is like a cancer. It grows malignantly through the attitudes of the economic class that was targeted as unworthy who begin looking at the justice system as a weapon for those of means. Worse, it will metastasize into the atmosphere of the courts because once a court rejects a litigant because of their income, it becomes easier to do the same in the future.

Justice is not about the money. It is about the framework of the law and how it should be applied in all cases, no matter the economic situation of those involved. We in the Profession should be wary of allowing the courts to marginalize the poor without a fight. The consequences are dire, because there is always somebody out there who thinks our client is poor.

Board of Governors of The Florida Bar from the Seventh Judicial Circuit, Seat 1

When this opening was announced I was emailed and asked to run for the position. The nominating form had some great attorneys on it. They were dedicated to their clients; they spent time consulting the poor in legal matters; and they contributed to the community and the Profession in ways I could not possibly detail here. These are attorneys I frequently look up to so being nominated by them made it very difficult to refuse.

Pro Bono Service - Recently I was privileged to travel to Tallahassee and stand before our Supreme Court along with a cohort of fellow pro bono volunteer attorneys who have directly confronted the problem of accessibility to legal representation. Too often, pro se litigants with legitimate legal issues are denied a chance at justice and attorneys who volunteer cannot save everybody. I believe that some parts of this problem can be tackled using education and technology, and that the Profession should be experimenting with solutions that could resolve simpler matters as swiftly as possible.

Technology & the Law - Because of my background in engineering and science, I want to explore how technology can be used to pull the Profession into the 21st century. Creating a more efficient court system with technologically armed attorneys representing their clients would streamline the courts and allow all of us to concentrate more on what matters to us and those we represent. I want to contribute to this evolution of legal services.

Helping Others - Finally, there are many other issues facing the Florida Bar besides these two and they certainly have equally dedicated champions. Anemic court funding, poorly compensated government attorneys, increased support for legal aid firms, soft cover books which hurt less when the judge tosses the book at you, and mentorship opportunities for attorneys are some examples of the problems I would be looking forward to addressing with other board members.

I do not have all the answers, nor will I pretend to. These are difficult problems before us and no one attorney will solve any one of them. But I would be happy to take part in finding the solutions and it would be an honor to represent you on the Board of Governors. So remember to vote and let's tackle these problems together.

Welfare Fraud : The State v. You and What You Should Know

Public Assistance Fraud is a serious crime with misdemeanor and felony penalties depending on how much is alleged to have been pilfered from Florida's entitlement programs. If you have been charged with violating s. 414.39, Florida Statutes (2013) you need to know that unfortunately the odds are highly stacked against you.

Mistakes by the Florida Department of Children and Families (DCF)

DCF, like other government agencies, makes a lot of mistakes. The problem is that as an individual those mistakes is difficult to discover. Here is why:

Imagine that you have been charged with failing to report a change of circumstance (leading to the public assistance fraud) charge. You swear you remember reporting faithfully. When you obtain your records from DCF you notice that the records of other individuals are in your file, but you cannot find any evidence of your report. Why? That's obvious, they misplaced your report in somebody else's file.

It becomes easy to prove that DCF put the wrong information in your file, but that's not proof that you reported or that DCF placed your report in somebody else's file. The only way to prove that is to find your report in the other file. But imagine the costs of having DCF thumb through all of their files to catch that mistake, it's not going to happen.

So your sole piece of evidence is proof that DCF could have made an error and misfiled your report. Standing before a jury with that is hardly comforting. 

To eliminate misfiling errors and to speed up efficiency, DCF now allows communication online. A demonstrable error has already been observed by this firm when a business account report that was filed online could not be found by staff during a phone interview. This opens up the possibility that reports are simply not being processed through the web site and somehow end up floating out in internet-limbo.

The State's Track Record on Public Assistance Fraud

Making matters worse is that the State has a stellar track record for convicting people charged with fraudulently obtained public benefits. In 2010, 291 individuals decided to go to trial. 283 were convicted, 8 were acquitted. That's a 97.3% conviction rate. Dr. Charles J. Mullin, Statistical Analysis of Fraud in the 

Florida Food Assistance Program (Nov. 28, 2012). Also in 2010, 2856 individuals fought the State in administrative disqualification hearings. 2811 convictions and waivers obtained, only 45 acquittals. Id. That's an average 98.4% win rate for the State. Id.

Based on these numbers alone (without the self-serving optimism of defense attorneys) your average chance of winning against the State of Florida is 2.15%. Now genius defense attorneys may be able to show better results but most of us are not geniuses. If you encounter an attorney that claims to be a genius, I would recommend you ask the following questions:

- How many public benefits fraud cases have you defended?

- How many did you bring to trial?

- What is your percentage of wins?

Remember that the numbers above don't take into consideration the skills of the prosecutor or defense attorneys, the temperament of the judge, or the fickleness of the jury. Despite the wide variety of circumstances the State walks away with win after win after win.

The Good News

There's good news? Yes... sort of. Apparently the State's general attitude is to simply recoup the money they "lost" paying out benefits to you and avoid trial. This is amazing considering how easy it is for them to win these cases. With that in mind it is now more important for you to deal realistically with an attorney who understands that your best interests (97.3% of the time) are served by avoiding a conviction and agreeing to paying back the state.

Why is this true? Generally speaking it would cost more (on top of what the state already claims to have lost) to incarcerate you instead of just getting you to pay the money to the State. So there is a strong incentive to push people into what is called pre-trial intervention. While this is hardly justice since both the innocent and guilty are caught up in the system, it is (97.3%) of the time in your best interest to take the deal.

If you or somebody you know, or if you are a DCF worker who would like to provide evidence of errors happening within the system, contact the Law Offices of Jimmy Allen Davis, P.L. at the (386) 873-8422 or email PDF scans of your evidence to jimmy.davis.esq@gmail.com  Feel free to do so anonymously. It's very important that society expose the problems within the DCF - State Attorney Office alliance.

Concurrent Retirement and Disability Pay (CRDP) or Combat Related Special Compensation (CRSC)

Prior to 2003, the U.S. Department of Veteran Affairs ran a disability compensation program. It's popularity stemmed from the manner in which disabled veterans of the United States Armed Forces could waive a portion of their disposable military retirement pay and receive VA compensation for that waiver in exchange. That compensatory pay from the VA was exempt from federal and state taxes. Depending on the disability rating of the veteran it was entirely possible that his or her entire retirement pay could be converted into tax free income.

While supporting US veterans (which is a laudable goal), Congress simultaneously sheltered VA compensation from garnishment actions by ex-spouses of veterans and made equitable treatment in state family proceedings a small nightmare. State courts and the attorneys of ex-spouses of disabled veterans found a loophole in applying indemnity clauses which naturally were crafted with varying degrees of skill.

In the early 2000s, Congress enacted two new entitlement programs: Concurrent Retirement and Disability Pay (CRDP) and Combat Related Special Compensation (CRSC). These two programs operate under different rules, but numerous difficulties arise when disabled veterans and their ex-spouse transitioned from the old system which was in place when they were divorced into the new system, for which their final judgment for dissolution of marriage was not written.

How should a family law attorney handle such a case when a former spouse is requesting that they file a motion to enforce and/or hold the disabled veteran in contempt? What questions and issues arise? How can one avoid the pitfalls of the dreaded s. 57.105 notice from opposing counsel? Let's try and cover the basics:

The Defense Finance and Accounting Service (DFAS)

DFAS is the government agency mandated to process the payments of CRDP and CRSC funds to disabled veterans and any ex-spouse entitled to a portion of their disposable military retirement pay pursuant to any final judgment for dissolution of marriage.

Once an application by a disabled veteran requesting consideration under the new entitlement programs is received, DFAS will assign the veteran to the program which pays out the most. This determination is made without regard to any entitlement by an ex-spouse to a marital property split. Inclusion in one program precludes entitlement to the other. It should also be noted that CRSC is only available to veterans with disability related to combat operations (real or simulated). So all disabled veterans (I'm generalizing here) are entitled to CRDP, but not all disabled veterans are entitled to CRSC.

DFAS will accept requests for information from ex-spouses and return information regarding any breakdown in payment from any disposable military retirement pay he or she would be entitled to. What they will not provide are copies of the Retiree Account Statements (RAS) they provide the retiree. This tends to make things terribly inconvenient for the ex-spouse or the attorney seeking information. So unless the cooperation of the disabled veteran is secured, obtaining the RAS sheets must wait until discovery.

CRDP

Concurrent Retirement and Disability Pay (CRDP) is a program enacted by Congress that started on January 1, 2014. Over 10 years, this program "phased in" a reduction of the VA Waiver that eliminated part of the disposable military retirement pay in exchange for VA Disability Compensation. The result, disabled veterans saw an increase in their military retirement pay without a concurrent drop in their VA Disability Compensation. 

This program's entitlement is divisible with an ex-spouse pursuant to any final judgment in a dissolution of marriage action, even if that final judgment was written prior to the 2004 transition. So this program is often advantageous to the ex-spouse.

CRSC

Combat Related Special Compensation (CRSC) is an entitlement program for veterans with disabilities related to actual or simulated combat exercises which, to be brief, means that if the veteran was disabled while fighting he qualifies. DFAS handles the payouts for this program as well. If a single dollar is paid out to the disabled veteran under CRSC, no amount of CRDP can be paid.

This program's entitlement is not divisible with an ex-spouse. So being placed under this program is more often an advantage to the veteran and a disadvantage to the ex-spouse of the veteran.

The Inherent Equity and Inequity of the System

Congress, in it's usual "wisdom," created a system whose intent was to no doubt provide an advantage to veterans and simultaneously provide an advantage to the ex-spouses of disabled veterans who should not be cut off simply because the marriage ended.

The problem with the design is that its effects are absolute, and can either work fairly or very unfairly. Consider the situation where a deserving ex-spouse is foreclosed from a payout because DFAS assigned the disabled veteran to CRSC, or an undeserving ex-spouse getting an enormous payout because DFAS assigned the disabled veteran to CRDP. Neither situation is equitable: either the ex-spouse is shafted or the disabled veteran is. Bummer.

So the system works... when it works. The rest of the time it doesn't. Certainly it was not Congress's intent to create a system designed to randomly victimize certain parties to a divorce or reward the unconscionable actions of undeserving parties to a divorce. But effectively that is what they did. What makes this more remarkable (and somewhat disappointing) is the number of JDs in Congress at any one time. 

Pre-2004 Final Judgments into Post-2004 Enforcement

The real difficulties when attempting to enforce pre-2004 final judgments after the transition is that the language of the judgment, while advantageous to the represented party under the old system, can become crippling under the new system. If DFAS assigned the veteran to CRDP then life may be a little easier. If the veteran takes steps to switch during "open season" to CRSC in order to shut down payments to an ex-spouse (hint: DFAS will not stop him or her) then an enforcement proceeding may occur if an appropriate QDRO with an indemnity clause was included in the final judgment.

If on the other hand, a disabled veteran switches from CRDP after CRSC was originally assigned, there may be no bad faith and during a switch back to correct the ex-spouse may see a large spike in payment only to see it vanish the next year. This may trigger a legal attack from the ex-spouse that may ultimately prove futile.

This potential for dead-end litigation is raised because the disabled veteran is not required to produce any of the RAS and DFAS will not honor a request to produce them for pre-litigation discovery purposes. This means that in general practitioners will not know if there is a case until they file a motion for enforcement and request discovery. Of course, it isn't unheard of a s. 57.105 notice coming from an unsupported motion. Here are a few tips to avoid unnecessary litigation:

If you are the ex-spouse's attorney:

- Examine the QDRO (or it's equivalent) in the final judgment or marital settlement agreement ("MSA") paperwork and make sure there is an indemnity clause that would support a motion for enforcement.

- Send a demand letter to the disabled veteran for the RAS sheets from 2003-2014. Explain that fluctuations in DFAS payouts are raising suspicion of bad-faith attempts by the veteran to prevent your client from receiving funds. Explain that the veteran may avoid unnecessary litigation through cooperation and that failing to produce the RAS will force litigation.

- Compare the bank statements of the client with the RAS and try to determine whether or not the veteran switched from CRDP to CRSC or from CRSC to CRDP. (See above).

- If it appears that DFAS initially assigned the veteran to CRDP and after the veteran took steps to switch to CRSC, then check the indemnity language.

- Verify your complaints and attach all your exhibits. It doesn't hurt to mention in the Motion to Enforce that "in an attempt to avoid unneeded litigation a demand for the RAS was sent but Respondent but went unanswered."

- File your motion and ancillary paperwork and demand discovery. Once discovery is obtained, re-analyze your client's position.

If you are the disabled veteran's attorney:

- Usually you will only hear from the veteran once a motion to enforce is filed. If you hear from them earlier and a demand letter was received, ask them if they switched from CRDP to CRSC (if they are indeed entitled to CRSC). You might be able to resolve the issue for them without wasting time in litigation.

- Besides the usual reading over of the motion, you should demand the RAS from your client from 2003-2014 immediately (it's probably going to be demanded anyway, so it's better to get it as soon as possible). You can instruct your client to go to https://mypay.dfas.mil to obtain the sheets or they can write the agency and have the agency send copies.

- If the evidence shows that your client started on CRSC, then your client is standing in a strong position to argue against enforcement. Depending on your strategy, you may want to volunteer the evidence on the back end of a s. 57.105 notice and try to shut the litigation down before it starts.

- If the evidence shows that your client started on CRDP and then switched to CRSC, then your client's position is weakened only by an amount justified by the language in the indemnity clause.

Indemnification Language

Of course, longtime military spouses are divorcing these days, and as before part of any MSA or the final judgment should contain an indemnity clause and a method for splitting the marital settlement agreement. Mathematically Youngblood v. Youngblood, 959 So.2d 416 (Fla. 1st DCA 2007) is an excellent example of a well drafted (and admitted lucky) indemnity provision. In Youngblood, the ex-spouse (prior to 2004) was receiving $1,233.25. When the system changed, the ex-spouse began receiving... well, $1,233.25. I won't spoil the read for those of you who are interesting but the structure of the indemnity language was perfect.

Certainly we will likely see more tweaks to the system as Congress revisits this issue. Complaints of inequity will certainly arise as time moves forward from both disabled veterans and their ex-spouses. 

Practitioners should fight for an "It is the intent of the Court that  gets paid an amount equal to  and that should any changes to the VA disability programs prevent this intention from being realized, then and the Court will revisit this Final Judgment and reform this portion to reflect its original intention." clause. Reciprocity should be considered because this type of clause is of great benefit for both parties. Any future change could have catastrophic effects on the financial stability of either party.

There is almost no case law that this attorney found on CRSC and CRDP programs and how they interplay with pre-2004 VA disability compensation programs. Soon enough an order will be published out of Brevard detailing some of the information contained in here, and I'll revisit this entry and cite the order.

EDIT:   Gertz v. Odzimowski, 22 Fla. L. Weekly Supp. 98c (Fla. Brevard Cty. Ct, 2014)

For the attorneys reading this, if you practice in Family Law and are familiar with military divorce issues I'd like to list you here so don't be shy and email me.

The Protecting Tenants at Foreclosure Act of 2009

So the other day (or week, or month...) I got involved in a pro bono case involving an attempt to oust a couple of tenants from property that had recently been foreclosed upon. A writ of possession was issued under the foreclosure case itself (there was no eviction action) and I was asked to try to keep this from happening using the Protecting Tenants at Foreclosure Act of 2009 ("the Act").

What does the Act do? Well, to keep it short, the act prevents purchasers from kicking innocent bona fide tenants to the curve and in essence acts to force an assumption of any valid existing lease onto the new landlords. There is relatively little case law in Florida about this. So how do things work when this sort of thing comes up?

Step 1: The new landlord must give notice to vacate of at least 90 days to any bona fide tenant living on the property. A bona fide tenant is defined as being one who is unrelated (with limits) to the previous owner; entered into the lease agreement at arms-length; and pays rent which is reasonable relative to local market conditions. If the notice does not give 90 days, it is defective and cannot be enforced. See Fed. Nat'l Mort. Assoc. v. Jenkins et al., 21 Fla. L. Weekly Supp. 73b (Lake Cty. Ct., 2013), citing Logan v. US Bank National Association, Case No 10-55671 (9th Cir. USCA July 16, 2013); see also Joel v. HSBC Bank USA, Case No 10-13029 (11th Cir. USCA 2011). The Act does not protect squatters.

Step 2: Determine if the tenant is living on the property under a periodic tenancy or an active and enforceable lease agreement. If the tenant is in a periodic tenancy, the 90 day notice to vacate ripens 91 days after it is served and the tenant will be required to move. If the tenant is in an active and enforceable lease agreement, then the tenant must be allowed to live out the lease, subject to the following exception:

• If the property is sold by the successor in interest to a third party purchaser who intends to occupy the property as a primary residence. In this event, the 90 day notice to vacate ripens only on the sale date where the third party purchaser takes (at least) constructive title.

F.A.Q.

- I have a valid lease, and the successor in interest has not found a purchaser. The successor in interest has given me a 90 day notice, is this legal?

It appears to be. The Act does not restrict when the notice to vacate is served after the Certificate of Title (in Florida) is entered. The successor in interest may issue a 90 day notice immediately, but it does not go into effect until the sale date to a purchaser intending to live on the property as a primary residence.

- When can a 90 day notice to vacate be given to me?

In Florida, the day the Certificate of Title gets entered into the docket, transferring title to the successor in interest. If you are living on a month-to-month basis, the 90 day notice to vacate can be issued anytime after the Certificate of Title and ripens on day 91.

- My 90 day notice to vacate does not fully describe the property I am supposed to vacate. Can I fight to stay in my home on the grounds that I've been asked to leave an ambiguous property?

There is nothing in the Act requiring the landlords to give you a "perfect notice." Attempting to remain on the property based on similar theories used to defend common eviction complaints will not likely work. A reasonable notice; given in a reasonable place; that reasonably identifies the parties and property in question will likely be considered sufficient. In fact, a judge may find that initiating litigation to maintain possession when the notice isn't perfect is dilatory in nature and may get an attorney in trouble. Then again, if the notice address is completely wrong ("123 Anywhere" instead of "456 Overthere") litigation may be appropriate.

- After my landlord's property was foreclosed upon, I murdered my neighbor. Is there anything in the Act that will protect me?

No. But the Act expires in 2014 if that clears something up.

If you have any questions regarding the Protecting Tenants at Foreclosure Act or if your old landlord has lost your rental property in foreclosure and the new landlord is trying to rush you out, you need to speak with an attorney who is familiar with the Act. Feel free to contact my firm at (386) 873-8422 or via email at jimmy.davis.esq@gmail.com.