New Florida Law Change Permits Headlight Flashing Warnings

Flashing your headlights to alert oncoming drivers that police and speed traps are upcoming will no longer be illegal in Florida.

This provision is one of many motor vehicle law taking effect on January 1, 2013.  Other law changes include allowing homeless people to get free state identification cards and two new specialty license plates. It also would for the first time permit the state to issue specialty driver licenses and ID cards.

Florida attorney J. Marcus Jones filed suit on behalf og Erich Campbell who was cited for violating an existing law that says “flashing lights are prohibited on vehicles” except for turn signals.

The lawsuit asserts that the Florida Department of Highway Patrol had been misinterpreting that section in Florida’s traffic code as it was meant only to ban drivers from having strobe lights and/or official-looking emergency vehicle lights on their personal cars and trucks.

To clear up any ambiguity, the new law amends that provision to specifically allow motorists to flash their headlights at an oncoming vehicle regardless of intent.

A Pinellas County judge dismissed Campbell’s $115 ticket issued by Highway Patrol for such an infraction.

The judge presiding over the lawsuit by Campbell is now saying that the issue is moot because of the change in the law.  But Jones is asking  Circuit Judge Kevin Carroll to reconsider because of the loopholes he believes the new law contains.  Jones said police still can use other sections of Florida’s traffic code to ticket motorists for flashing their headlights. Those provisions include prohibitions against using high beams within 500 feet of an oncoming vehicle or within 300 feet of a vehicle ahead. The new exception for flashing headlights doesn’t apply to those parts of the traffic code, Jones said.

If he can get Judge Carroll to change his mind, Jones then could seek class-action status and try to get refunds for an estimated 2,400 motorists who paid fines for flashing their high beams between 2005 and 2010.

Short Sale Tax Break on Deficiencies May Be Ending December 31, 2012

One of the more frequent questions asked by a homeowner considering a short sale to cure foreclosure is whether the homeowner will be taxed on this forgiveness.

Some background: Typically a short sale occurs when the property is no longer worth the amount that the lender is suing you in foreclosure for. (ie you are being sued for $300,000 and your home is only currently worth $150,000).  In this case, you wish to sell the property and think you can do so for around $150,000.  You, or your lawyer, will be asking the bank for forgiveness off the debt above the $150,000 in our example, thus releasing you from any money liability to your lender and “walking away clean.”

But there is an issue with this.  What happens to that forgiveness in terms of your taxes?  Usually, forgiveness of any type of debt is considered income to you, and thus taxable.  In our example above, the homeowner would be liable for taxes on $150,000 in extra income. This means if you make a yearly salary of $50,000, next year you would be taxed on $200,000 in total income, and at a much higher tax bracket.

The Mortgage Forgiveness Debt Relief Act of 2007 was made to address this issue Act stated that in the case of debt forgiveness for a primary residence, this income would NOT be taxable.  thus, in our example above, the $150,000 would to be taxable and would vanish “into thin air.”  This Act led to a surge in short sales, and short sales have tripled in the past 2 years.  Short sales have also spiked in recent months.  The National Association of Realtors reports that “Short sales from borrowers behind on their payments jumped 22 percent over last year for the three months ending Sept. 30, RealtyTrac reports.    Short sales also jumped 17 percent among borrowers who were still current on their payments.” Why?

Because the Mortgage Forgiveness Debt Relief Act of 2007 is set to expire on December 31, 2012 and has yet to be extended.  Thus, this would be devastating to homeowners trying to walk away from their underwater homes.  Any house short sold after January 1, 2013 would have its forgiven debt taxed as income to the homeowners 2013 tax returns, causing thousands of dollars of extra taxes due.

Short sales will come to a halt as no reasonable homeowner will want to pay the taxes on 6 figures of extra income next year.  Theoretically, this would greatly slow the housing recovery as homeowners would be much more hesitant to sell rather than just stay in their property as long as possible until the bank forces them out.  Foreclosures would clog up the courts more than they already are because people are going to fight instead of trying to work something out with the banks.

There will also likely be a large spike in Chapter 7 bankruptcy filings because you can eliminate all of the mortgage debt (and tax liability) in a bankruptcy.  

Miami-Dade Foreclosures Routinely Denied Due Process Pt 2.

From Mark Stopa, Esq.’s Blog

“I don’t know Matthew Bavaro, a fellow foreclosure defense attorney who practices in Miami.  However, the story he posted on his blog today struck a cord with me, as it’s eerily similar to an experience I had in Miami a few weeks ago.  At this point, it’s time – perhaps past time – that I shared my experience and voiced my concerns.

I had a trial scheduled in Miami, and when I arrived in court, it was apparent that dozens of other trials had all been set for the same time, before the same judge.  While it’s never ideal to have to sit around and wait for your case to be called, it gave me the chance to watch other cases.  Wow, what a nightmare.  As each trial started, the judge made an unsolicited “offer” to defense counsel of a 120-day sale date, advising the defendant that if he/she did not take the deal, the “offer” would be off the table after the trial.  That was the judge’s routine procedure – without hearing any evidence, or knowing anything about the facts of the case, the judge was essentially telling the homeowner “you better consent to judgment and accept a sale date in 120 days or I’m going to rule against you and set an earlier sale date.”

Punishing homeowners for going to trial.  Wow.  Just … wow.  That alone is nuts.  Candidly, I told that story to a local judge (not a fellow defense attorney – a local JUDGE), and he couldn’t believe it.  There is no circumstance – none – where a judge should be taking it upon himself to tell a defense attorney that he is going to lose at trial and he should accept the judge’s deal, and that’s precisely what this judge was doing.

Can you imagine this in any other context?  How about a criminal case … judge tells the defendant “you better accept this plea, as if you go to trial, I’m going to rule against you and impose a harsher sentence.”  Totally nuts.

Anyway, it only got worse from there.  As the “trials” proceeded, they weren’t trials at all.  Nobody even sat at counsel table.  Instead, the judge forced everyone to stand, right in front of the bench, for the trial.  Clearly, the judge wasn’t intending that the “trials” last very long, not even allowing the homeowners or their lawyers to sit down.

As the trials went forward, to my amazement, it was typically not the plaintiffs’ attorneys who were asking the questions, but the judge himself!  Yes, instead of forcing the plaintiffs’ lawyer to question the witnesses and prosecute the cases, the judge took it upon himself to prosecute the cases from the bench.  That didn’t just happen once or twice, either – it was the judge’s routine.

The combination of what I observed – the judge trying to coerce defendants into settling, then prosecuting the cases for the plaintiffs – convinced me that I could not get a fair trial.  So when my case was called, I moved to disqualify the judge.

Once he saw my case was going to be contested, the judge immediately pushed my case to the end of the docket.  Hence, I kept watching the same broken record, one “trial” after another.

Finally, it got to my turn.  Before the “trial” started, I finished my motion to disqualify the judge.  I explained in detail the facts set forth above and how they caused me a well-reasoned fear that the judge could not be fair and impartial.  Motion denied.

Then I moved to continue the trial so I could file a written motion to disqualify.  Motion denied.

Then I moved for a stay pending appeal, as I was entitled to have the appellate court rule on whether the judge could preside on the case before the trial proceeded.  Motion denied.

Then, before the trial began, I argued the plaintiff should not be allowed to introduce certain exhibits into evidence because plaintiff failed to provide copies to me before trial, as the court had ordered.  The judge asked the plaintiff if that was true and counsel admitted it was.  The judge asked if counsel had an excuse and he had none.  The plaintiff was stuck – they violated an order and failed to provide me documents that I was entitled to receive before trial.  But instead of punishing or penalizing the plaintiff, the judge ordered the trial was continued so plaintiff could provide me the documents.

I immediately interjected, telling the judge I did not ask for a continuance.  The judge seemed surprised, asking me what I thought the remedy should be.  I explained that the trial should proceed, but the plaintiff should not get to use the exhibits it failed to provide to me.  That would mean, of course, that the plaintiff could not prove its case (and that I would win at trial), and the judge made it clear that wasn’t an option.  So the judge again ruled the trial was continued.

How frustrating.  The plaintiff screwed up, but I was being forced to come back again on a different day (from Tampa).  So I explained how I had traveled to the trial from Tampa, and that I was prepared, so if I had to come again because the plaintiff screwed up, then I should get fees for having to do so.  Motion denied (technically, deferred ruling until after the case was over, but basically denied).

These are the facts, as they transpired, as they would appear on a transcript.  What the transcript won’t reflect, however, is the indescribably nasty way the judge treated me.  The hostility of his tone.  The anger in his voice.  HOW DARE I come into his court and ask for – no, insist upon! – due process in a foreclosure case.  The hostility was so apparent, I felt compelled to say, as the trial was ending “let the record reflect that the judge is staring at me with an incredibly nasty stare,” or words to that effect.

At that point, the judge was truly irate, inviting plaintiff’s counsel to comment about the judge’s demeanor.  That prompted me, of course, to ask why the judge was questioning the factual basis of my motion to disqualify him.  Then the judge smiled at me, waved, and said “have a nice trip back to Tampa, counselor,” in the most condescending tone I’ve ever heard – not just in a courtroom, but ever.

Read Matthew Bavaro’s post.  This isn’t about me, and it’s not about Mr. Bavaro.  This is about a court system that is repeatedly and systematically causing experienced, reasonable attorneys to believe there is nothing close to due process or fair trials transpiring in foreclosure cases in Miami right now.  Perhaps most alarming is that the judge with whom I had my bad experience was NOT the judge before whom Mr. Bavaro had his.  In other words, the issues in Miami aren’t limited to one judge – multiple judges are causing these concerns.

I get that the judges wear the robes and get to make the rulings.  They have the authority, and no matter how much I disagree with the rulings, they have to be respected.  I get that.  And I’m not suggesting that anyone not respect the judges and not follow their rulings.  However, when the judges don’t follow the law, and act in ways that make it clear they aren’t comporting with requirements of due process, it’s up to us, as advocates, to do whatever possible – within the law and professional ethics – to compel them to do so.  We aren’t doormats – we’re advocates.  Even when it’s uncomfortable, we have to act as advocates for our clients.

I left Miami that day with a continuance.  In virtually every other case, the Plaintiff got a foreclosure judgment, often with little or no opposition.  I talked to several otherdefense  attorneys about the process, and though most shared my concerns, most of them were afraid to say anything or do anything about it (for fear of upsetting the judge).  I’m sorry, but being a doormat isn’t the answer.

From what I understand, the senior judges in foreclosure cases get paid $300/day.  I’d very much like to think that the Miami judges aren’t rushing through trials in this manner because they’re trying to get through the work day faster.  Whatever the motive, however, it’s time – probably past time – that defense attorneys act as advocates and help the judges understand that the processes being described by Mr. Bavaro and myself are wrong.”

Miami-Dade Foreclosures Routinely Denied Due Process Pt 1.

From attorney Matthew Bavaro, Esq.’s Blog:

“Many of you know that I was in trial this morning for a Miami-Dade County foreclosure client.  The judge was the Honorable Alan Schwartz.  It was quite the show that left jaws dropping in open court.   The judge allowed the note and mortgage into evidence without objection from me.  Then the bank tried to introduce the Notice of Acceleration and the loan payment history.  I objected and asked the court to allow me to voir dire the witness prior to the introduction of the records.  This means I asked for the right to question the witness about their knowledge regarding the records keeping practices of Bank of America.   The judge did not allow me to ask any questions at this stage and allowed the documents into evidence over objection.

So, the bank rested and I got an opportunity to cross examine the witness, or so I thought.  I was barely allowed to even ask a question.   He shot me down almost every time I asked something.  When I went to put my position on the record, he would not allow me to open my mouth.  Well, I am not a wall flower, I am going to stand up for my clients.

The acceleration notice that Bank of America sent was invalid in my opinion and about a dozen other judges around the state have found in favor of the homeowner on this very issue with the same acceleration letter from Bank of America.  When I raised this to him, he could not believe that I had the audacity to actually ask him to rule in favor of my client.  He implied that he is not going to allow a homeowner to stay in their homes without paying their mortgage even if the bank screwed up.  When I asked to read the appellate opinions into the record regarding the paragraph 22 defense,  his response was basically that he did not care about the letter they sent and the fact that they filed a foreclosure action alone is good enough for him.

At that point I asked the judge to respect my client’s due process rights and pointed out that he was ignoring appellate cases from around the state.   At that point he turned to the bank’s lawyer and said “I guess I better let  Benjamin Cordozo III ask some questions”.  I took this as a personal attack on me,  so I asked the judge to recuse himself because by making that statement he showed that he could not be fair to me or my client.   He then said that I should take it as a compliment, but he clearly did not mean it as a compliment.  He meant to insult me in my opinion.  I said that not only was it not a compliment, but I believe that the court intended to slight me in the middle of trial in front of a courtroom full of people.  He was not too pleased at this point that I was standing up to him.  I started to hand write a motion to recuse him on a piece of yellow notebook paper when he then said that he would recuse himself.

Afterwards when the court reporter started to get up, he made a number of personal attacks on me.  Fortunately, the court reporter got back in her seat and got the personal attacks on the record (hopefully, I am waiting for the transcript).  At one point he even said I would have a “short and unhappy career”.  I am not sure if that was meant to be a threat or not.  Well, Your Honor, I have been practicing law for over thirteen years and, thank the Almighty above, my career has been extremely successful because I work hard, I fight for my clients, and I never roll over and play dead.

In the thousands of cases I have handled, I do not recall ever asking  judges to disqualify themselves, but what is going on in Miami-Dade county before certain judges is a travesty of justice.  I see homeowner after homeowner losing their homes every day without regard to due process of law.  I even saw Judge Alan Schwartz force a case to trial when the homeowner had a Motion to Dismiss pending that had not been ruled on yet.  So, the homeowner did not even get to file any affirmative defenses!  The case was not at issue and it was CLEALRLY error to force the case to trial.  Of the 40 or so cases set for trial today, my client was the only one who walked out of there without a sale date, except for a couple of cases where the bank failed to show up.

Miami-Dade county is just setting hundreds of foreclosure cases for trial at a time without regard to whether any attorney is available or ready.  I think this is a problem and shows that in Miami-Dade county, they are just interested in plowing through foreclosures, not administering justice and due process.  I am an experienced trial attorney and I will try foreclosure cases all day long  because I love fighting for my clients.  However, at least give the homeowners a fair shake and rule in their favor when appropriate.”

Florida Supreme Court Strikes Down Ban on Loud Music From Cars

On Thursday, the Florida Supreme Court released a ruling striking down a law that made it illegal for music coming from a car to be “plainly audible” from 25 feet or more.

The court ruled on a pair of cases originally heard in Pinellas County. Both drivers in those cases were cited for playing their car stereos too loudly. One of them, lawyer Richard Catalano, was issued a $73 ticket.

In the appeal before the Supreme Court, State of Florida vs. Richard T. Catalano, Florida Statutes, Section 316.3045(1)(a) was ruled to be “an unreasonable restriction on the freedom of expression and is unconstitutionally overbroad, but is not unconstitutionally vague” and the decision of the 2nd District Court of Appeal upheld.

The justices called the law unconstitutional and an “unreasonable restriction on the freedom of expression.” They wrote that it violated free speech rights for several reasons, including that the law created an exemption for vehicles used specifically for business or political purposes.

The Court did not have a similar problem with the requirement that a stereo must be “plainly audible” from 25 feet or more to be illegal, which the lower court had questioned.  Instead, the Court said that it came down to the fact that the right to play loud music in public is protected under the First Amendment.

Justice Jorge Labarga, writing for the majority, focused on a part of the law that exempts commercial and political messages from the ban, saying it amounted to a restriction on certain kinds of speech, and thus a violation of the First Amendment.  The ruling was also skeptical of the State’s argument that making traffic safer was justification for the law.  This is a curious argument made by the State as some of the history of the statute stated that it was unlawful for stereos or car stereos to be audible from 25 feet away or more and louder than necessary by people in the vehicle near schools, churches or hospitals.  These reasons likely would have been a much stronger argument for the State that the ban was reasonable.

Another curiosity to keep in mind is that there was a recent shooting case where Jordan Davis’ alleged shooter Michael Dunn had told police he asked the driver of the car Davis was in to turn the music down repeatedly before the shooting.  While the Davis shooting case is being built around a “stand your ground defense” in that Dunn alleges a shotgun was pulled on him when the music was turned up on him, it would be interesting to know how the Davis case influenced the Florida Supreme Court’s reasoning as to the reasonableness of the level of sound coming from a vehicle.

Broward County Courthouse Evacuated and Closed After Gas Leak

The Broward County Courthouse was evacuated under the order of Chief Judge Peter Weinstein shortly before 9:00 AM Wednesday morning.

Fort Lauderdale Fire Rescue officials said it was a 4-inch gas pipe that was cut by a backhoe working on a construction project.   The gas made some people sick — three people who were in the main jail lobby were transported to a hospital with complaints of nausea, according to officials.

The main jail was placed on lockdown and didn’t accept any new prisoners while firefighters checked each floor of the jail  to ensure there was no danger inside the building.  Officials stated that due to the fact that it was a windy day, the gas dissipated and did not enter the prisoner area of the jail, and caused no reactions to the prisoners.

I was personally present at approximately 8:45 AM attending a hearing on the 9th Floor in the civil wing.  The smell of gas was apparent when first entering the courthouse going through security.  The smell became stronger going up the elevators, and was pungent on the 9th Floor.  I had made a comment to the judge’s bailiff about the strong odor of natural gas just minutes prior to Chief Judge Weinstein calling down from the 10th floor ordering everyone evacuated from the building.

Fort Lauderdale Fire Rescue’s HazMat team secured the leak while the gas company turned off the gas supply to both the jail and the courthouse.  The repair was estimated to be a “day-long” project by the gas company.

The courthouse is scheduled to re-open tomorrow morning for business as usual.

New Proposed Florida Bill Banning Texting While Driving

Florida is one of few remaining states in the U.S. not to ban, or regulate, texting while driving.  Florida will now try to join the 39 other states banning such acts.

On Tuesday, State Representative Doug Holder filed a bill to make texting while driving a secondary offense under which a driver can receive a citation, but only after being pulled over for a primary offense such as speeding.

Estimates show that distracted driving contributes to 16 percent of all fatal crashes, leading to around 5,000 deaths every year.

“If you are texting while driving you are 23 times more likely to have an accident,” Holder said. “I think the timing is right. I think we are going to get something passed.”

“Generally conservatives are somewhat reluctant to let government have control. I am conservative but (distracted driving) has become an epidemic.”

There is no known opposition to the bill known at this time said Holder.

Former attempts to pass such a bill failed due to political pressure and arguments that other distractions while driving  such as GPS and radios, would still distract drivers and cause fatalities.

The bill defines the use of a “wireless communications device” in a crash as a penalty of 4 points against a the driver’s.  A moving violation in conjunction with the above, and within a school safety zone, would carry of penalty of two points.

The bill says “a person may not operate a vehicle while manually typing or entering letters, including texting, e-mailing and instant messaging.”  Under the bill cell phone calls would still be allowed.

Exceptions will be made for driver’s of authorized emergency vehicles or people reporting an emergency or criminal act to law enforcement.

Exceptions also apply to use of GPS devices and receiving radio broadcasts.

George Zimmerman, charged with the shooting death of Travon Martin, Sues NBC for Defamation

George Zimmerman,accused of second-degree murder in the shooting of Trayvon Martin earlier this year, filed suit against NBCUniversal on Thursday, alleging that news reports that edited his voice on a 911 tape constituted defamation and intentional infliction of emotional distress.

The edits of the 911 recording, which removed a contextual question posed by the 911 operator asking what race Mr. Martin was, aired three times on NBC’s “Today” show.  It was first aired on March 20, then again on March 22, and finally on March 27.

In the first report,  Zimmerman’s words to the 911 operator were: “This guy looks like he’s up to no good or he’s on drugs or something. He looks black.”  But in fact, he had told the operator: “This guy looks like he’s up to no good or he’s on drugs or something. It’s raining and he’s just walking around, looking about.”  When the dispatcher said, “O.K., and this guy; is he white, black or Hispanic?” Zimmerman replied that “He looks black.”

Zimmerman alleges that journalists at NBC News intentionally edited these 911 statements to make him appear to be a “racist, predatory villain.”

When the omissions were noticed afterwards, NBC conducted an investigation and concluded that the edits were mistakes, and not a deliberate alteration of the statements made by Zimmerman.

The suit, filed in Seminole County Circuit Court, Florida, asked for a jury trial.

Florida Supreme Court Delays Oral Arguments in Breathalyzer Case

In a long-running battle with various circuit courts in Florida, attorneys for 3 defendants have asked the Florida Supreme Court to require the company that manufacturers the breathalyzer test machines for Florida to turn over the software in order to challenge their accuracy.

The Intoxilyzer 8000, manufactured by CMI, Inc.. has been the standard for breath tests in Florida for many years now.  And as long as it has been around, attorneys for defendants have been challenging its accuracy.  Specifically, attorneys have been requesting the software “source code,” or the way the computer code analyzes and reports the breath test, in discovery throughout courts in Florida, and routinely denied by judges.  To date, judges in the State of Florida has ruled that the defense is not entitled to the source code (firmware and/or software code) for the CMI Intoxilyzer 8000. This was because the defense in prior cases had not shown that the source code was material to the cases presented. Attorneys have since shown potential anomalies with the CMI Intoxilyzer 8000 results. If the state does not release the source code so it can be examined, and cannot provide an expert to show that the device is, “accurate and reliable scientifically,” there exists the potential that breath test results from the CMI Intoxilyzer 8000 may be inadmissible.

Despite court orders demanding release of the Source Code and the imposition of daily coercive fines for the company’s failure to so comply, there has been much reluctance to release the code. The company contends that its “intellectual property” is at risk if the source code is revealed.

Late last year CMI finally allowed several Florida attorneys and computer engineering experts to examine the source code for the Intoxilyzer 8000.  During this controlled examination in which all parties were bound by a non-disclosure agreement, the experts discovered that CMI was no longer in possession of the earlier revisions of the source code.  The company’s chief engineer explained that the source code for versions 8000.0 through 8000.13 had simply “been lost.”  This includes the version of the source code that was approved by the FDLE.

The second issue is that since approval, the software for the machine has been altered and changed 17 times.  The Intoxilyzer 8000 currently runs of software version 8000.27.  This was recently questioned in Collier County, Florida which questioned the Intoxilyzer 8000’s reliability for not conforming with the USDOT Conforming Products List.

Florida’s Administrative  Code 11D-8.003 states that the Florida Department of Law Enforcement (FDLE) must approve all breath test machines to assure their accuracy and reliability before used law enforcement to test breath samples.  Once the FDLE approves a breath test machine, the law assumes that the machine is accurate; otherwise know and self-admitting.  However, the FDLE cannot approve any device that has not also been approved by the United States Department of Transportation (USDOT).  The USDOT maintains a “Conforming Products List ” of breath test machines that conform to USDOT specifications for breath test machines, which can be found in the Federal Register; 58 FR 48705.

However, CMI failed to submit for approval 16 out of those 17 modifications mentioned earlier.  The Collier County judge found overwhelming evidence that CMI ignored federal law by not submitting these modifications for FDOT approval.  The judge also found that the FDLE does not require CMI to notify Florida when it makes changes.  The result is that CMI has modified the Intoxilyzer 8000 software 16 times without approval from Florida or the federal government.

Judge Carr wrote in his opinion that he was ”extremely concerned that [the] F.D.L.E. has given [CMI] free reign to modify the Intoxilyzer 8000 in any manner [CMI sees] fit.” He also wrote that the FDLE and CMI “have not taken the appropriate steps to ensure [the Intoxilyzer 8000’s] accuracy and reliability.” Judge Carr expressed concern that “a criminal defendant should not face conviction and possible incarceration based on secret undisclosed evidence.”

In summation, the Judge Carr found that the Intoxilyzer 8000 can no longer be presumed reliable in his courtroom.  The government would have to prove that the breath test machine is accurate and reliable at trial; instead of enjoying the presumption of admissibility.

The Florida Supreme Court is set to hear oral arguments on this issue on February 5, 2013; an appeal from a decision of the 5th District Court of Appeal quashing a trial judge’s ruling for CMI to turn over the software for its Intoxilyzer 8000.