Toyota Denied Recovery of Costs

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Isabel Magdalena, et al v. Toyota Motor Corporation, et al., 2017 WL 5760268 (Fla. 3d DCA Nov. 29, 2017)

By way of background, the Magdalena family was driving home in Panama when their car hit a tree. The driver’s side airbag in their Toyota Land Cruiser failed to deploy. Because of injuries sustained by the father, he was air lifted from Panama to Jackson Memorial Hospital in Florida. Subsequently, the family filed a lawsuit against Toyota in Miami, Florida.

In Toyota, a Miami court determined proper venue. Venue involves where a case should be heard. The Miami court agreed with Toyota that Panama was the proper venue for the action and dismissed the action. Consequently, Toyota argued that it was the prevailing party and entitled to recover its legal costs under Section 57.041, Florida Statutes. Costs include items such as; filing fees, the transcription costs for depositions, court reporters, and certain expert witness expenses. Items not considered costs are, for example, mileage, research, and copies. On appeal, Florida’s Third District Court of Appeal reversed the trial court’s decision awarding costs to Toyota.

Section 57.041, Florida Statutes, allows costs to be recovered by a party that is granted a final judgment or order of dismissal. The Third District ruled that the trial court erred in finding Toyota to be a prevailing party under the statue. Toyota was not granted a final judgment or a finding on the fundamental issues presented. The only issue resolved, was the procedural issue of venue.  This case highlights that a prevailing party is not determined when a case is transferred or dismissed for venue reasons.

Related service provided by KR Law Firm Commercial Litigation

SEC and FINRA Issue Year End Investment Alert

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The “fiscal cliff” may be of concern to individual investors as the end of 2012 rapidly approaches, according to a new investor alert. If not resolved, the fiscal cliff could result in increased capital gains and dividend income tax rates. Potential changes in these tax rates could result in year-end sell-offs as some investors may seek to take advantage of current capital gains and dividend income tax rates.

The SEC’s Office of Investor Education and Advocacy and the Financial Industry Regulatory Authority (FINRA) have issued a new Investor Alert called Year-End Investment Considerations for Individual Investors to help investors navigate the fiscal cliff and other end-of-year planning considerations. This new alert provides individual investors with a few suggestions for year-end investment planning as the year draws to a close.

“The end of the year is a great time to take stock of your financial situation and make sure your investment plan is meeting your needs,” said Gerri Walsh, FINRA’s Vice President for Investor Education. “Taking some time to carefully manage your investment portfolio can pay dividends in the coming year.”

Year-End Investment Considerations outlines five key areas investors should focus on when making investment decisions:

Asset Allocation. The end of the year is a reasonable time to review your overall investment portfolio and evaluate your existing asset allocation.

Consider Rebalancing. Some of your investments will grow faster than others. Rebalancing allows you to adjust your investment portfolio so as not to overemphasize one or more asset categories.

Tax Considerations. Investors who are interested in learning what impact tax rates, including potential changes in the tax laws, may have on their investments under different financial scenarios should consult their tax adviser or visit the IRS website for more information.

Check Out Your Investment Professional. Many investors do not realize that they can check the background of a broker or investment adviser by using FINRA Broker Check or the Investment Adviser Public Disclosure (IAPD) website.

Locate Your Financial Records. Consider preparing a list identifying your financial records, including a list of financial accounts and all user names and passwords.

Fort Lauderdale Securities Litigation and Arbitration Attorney

Contact Fort Lauderdale securities litigation and arbitration attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. He is an experienced securities litigation and arbitration attorney, and is available to assist individual investors, brokers, and brokerage firms involved in securities matters. You can reach him at 954-321-0176 or online.

Brazilian Igor Cornelsen to Pay $5.1 Million for Burger King Insider Trading

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Brazilian ex-banker Igor Cornelsen and his firm through which he made trades – Bainbridge Group – reaped illicit profits of more than $1.68 million by trading Burger King options based on confidential information ahead of the company’s September 2010 announcement that it was being acquired by a New York private equity firm, according to the Securities and Exchange Commission (“SEC”).

Cornelsen is now a resident of the Bahamas with a home in South Florida after holding high-ranking positions at several banks in Brazil before his retirement. He sought inside information from his broker Waldyr Da Silva Prado Neto by sending him e-mails with such masked references as, “Is the sandwich deal going to happen?” Prado was stealing the inside information from another Wells Fargo brokerage customer involved in the Burger King deal.

Cornelsen and Bainbridge Group agreed to pay more than $5.1 million to settle the SEC’s charges. The settlement is subject to court approval. The litigation continues against Prado, whose assets have been frozen by the court.

“Cornelsen shamelessly prodded Prado for details on ‘the sandwich deal’ and Prado happily obliged to satisfy his customer’s appetite for inside information,” said Daniel M. Hawke, Chief of the SEC Enforcement Division’s Market Abuse Unit and Director of the Philadelphia Regional Office.

Sanjay Wadhwa, Deputy Chief of the Market Abuse Unit and Associate Director of the New York Regional Office, added, “Foreign investors who access the U.S. capital markets must play by the rules and not rig the market in their favor, otherwise they face getting caught by the SEC and paying a hefty price as Cornelsen is here.”

According to the SEC’s complaint filed last week in federal court in Manhattan, Cornelsen became Prado’s customer in 2008. On May 17, 2010, Prado sent Cornelsen an e-mail written in Portuguese that translates to, “Igor, if you are around call me at the hotel … I have some info … You have to hear this.”

Cornelsen called Prado at his hotel and they had a 10-minute conversation. Earlier that same day, Prado told a friend that he had knowledge of the impending Burger King deal. After talking with Prado, Cornelsen began trading out-of-the-money Burger King call options the very next day. Cornelsen had never previously traded Burger King securities.

The SEC alleges that Cornelsen continued trading Burger King options over that summer despite losing money in some instances. In August, Cornelsen sent Prado e-mails seeking assurances that ‘the sandwich deal’ was going to happen, and Prado responded with such statements as “Yes it’s going to happen” and “Everything is 100% under control.” Cornelsen then purchased additional Burger King call options.

Cornelsen took steps to minimize his connection to Prado by purchasing the Burger King call options in accounts held at brokerage firms other than where Prado worked.

The SEC alleges that after the public announcement of the Burger King deal, Cornelsen e-mailed Prado to inquire about the acquisition price. Upon learning the new per share price that would yield him substantial illegal profits, Cornelsen e-mailed back, “Wow! What a day!”

The SEC’s complaint charges Cornelsen and Bainbridge Group with violations of Sections 10(b) and 14(e) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14e-3. The proposed final judgment orders them to jointly and severally pay $1,681,090 in disgorgement and $136,620.96 in prejudgment interest. Cornelsen is ordered to pay a $3,362,180 penalty. They neither admit nor deny the SEC charges. The proposed final judgment also enjoins them from future violations of these provisions of the federal securities laws.

Fort Lauderdale Securities Litigation and Arbitration Attorney

Contact Fort Lauderdale securities litigation and arbitration attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. He is an experienced securities litigation and arbitration attorney, and is available to assist individual investors, brokers, and brokerage firms involved in securities matters. You can reach him at 954-321-0176 or online.

Art Basel Guide, Miami Beach, December 6-9, 2012

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Art Basel, now in its 11th year, runs this weekend, December 6-9, in Miami Beach, Florida.

Recognized as one of the most prestigious art shows in the Americas, Art Basel features more than 260 leading galleries from North America, Europe, Latin America, Asia and Africa. Works by more than 2,000 artists of the 20th and 21st centuries will be on display.

Click on the link for the official Art Basel website.

If you are looking for places to eat or information on the many independent art events that surround the Art Basel show, click on the link for the Sun-Sentinel’s Guide to Art Basel.

A giant floating alligator head is one of the more unique features of Art Basel 2012. Hollywood artist Lloyd Goradesky and Everglades historian Cesar Becerra, joined by a team of collaborators, plan to launch a 40-ton alligator head, measuring 230 feet long and 50 feet wide, today or tomorrow from Port Everglades. The mobile head, with a mouth that opens and closes, will float down to Miami for Art Basel. Read more here.

A Public Service Announcement from the Fort Lauderdale Law Firm of
Kahn & Resnik, P.L.

The Florida lawyers at Kahn & Resnik, P.L. are available to service your legal needs.

Our concierge approach to the practice of law reflects our philosophy of personalized and confidential attention. When you retain an attorney at Kahn & Resnik, P.L., we work efficiently and effectively to help you achieve your business and personal objectives.

We can assist you in legal matters relating to commercial litigation, divorce, disability law, real estate litigation, securities litigation, and corporate transactions.

We serve business owners, professionals and individual clients across Florida, including Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Naples, Orlando, Tampa, Daytona Beach, Jacksonville, Tallahassee, and other cities throughout the state. Contact Howard N. Kahn, Esq. at 954-321-0176 or online.

South Florida Personal Income Decline in 2009 at Historic Levels

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Making ends meet in South Florida has been a challenge in recent years, and the U.S. Government issued a report this week that confirmed a drop in local personal incomes.

Residents of the metropolitan statistical area (MSA) that runs from Miami-Dade County through Fort Lauderdale up to Pompano Beach experienced a significant drop in personal income in 2009, according to the Bureau of Economic Analysis. The chart below shows historical trends for South Florida personal income.

Miami Income Chart

In a recent story titled, “The worst year for South Florida since the Great Depression: 2009,” the Miami Herald reports “… no income drop came even close to what we saw in 2009 — a 5 percent drop in Miami-Dade and an 8 percent plunge in Broward. Personal income includes government aid, and without the state and federal dollars, the decline would have been even worse.”

Income declines of this magnitude have not been seen since the 1930s. Fortunately, South Florida incomes started bouncing back in 2010.

The Fort Lauderdale Law Firm of  Kahn & Resnik, P.L.

The Florida lawyers at Kahn & Resnik, P.L. are available to service your legal needs.

Our concierge approach to the practice of law reflects our philosophy of personalized and confidential attention. When you retain an attorney at Kahn & Resnik, P.L., we work efficiently and effectively to help you achieve your business and personal objectives.

We can assist you in legal matters relating to commercial litigation, divorce, disability law, real estate litigation, securities litigation, and corporate transactions.

We serve business owners, professionals and individual clients across Florida, including Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Naples, Orlando, Tampa, Daytona Beach, Jacksonville, Tallahassee, and other cities throughout the state. Contact Howard N. Kahn, Esq. at 954-321-0176 or online.

Bank Uses Business Records Exception to Overcome Hearsay Exception and Foreclose Property

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Deutsche Bank National Trust Company, etc. v. Maria de Brito, 2017 WL 5163048 (Fla. 3d DCA Nov. 8, 2017)

In 2006, Mr. and Mrs. Brito, agreed to a modification of an adjustable rate mortgage through a principal only payment plan. The plan called for the interest portion of the loan to be deferred and added to the loan’s outstanding principal balance.

The lender reserved the right to adjust the interest rate at any time in the plan. For the next two years, the Britos made the required payments. Then, in 2008, Ocwen, the servicing agent for the lender, rejected a payment and returned the check to the Britos. Ocwen waited two years to notify the Britos in writing that they were in default of their loan and what steps were necessary to reinstate the loan.

When the Britos did not respond, the lender filed a foreclosure action. Two days before the trial, the Britos took the deposition of an Ocwen representative. At the trial, the Ocwen representative testified about the loan process, the payment history, and the notice of default on the loan. The trial court was given a copy of the original mortgage and the default letter that was sent to the Britos.

The trial court determined that Ocwen’s testimony was hearsay and the lender failed to prove that notice was sent to the Britos about the default. Consequently, the trial court dismissed the case in favor of the Britos.

On appeal, the Third District Court of Appeal reversed the trial court’s hearsay decision that excluded Ocwen’s testimony during the trial on the basis of the business records exception. This exception allows for a party to introduce business records that would normally not be allowed. Section 90.803(6), Florida Statue does not require the person providing the business record be the actual person who prepared the record. The person testifying on behalf of the records may be a records custodian or other qualified witness.

Section 90.803(6), Florida Statute requires that the records being introduced must have been made at or around the time of the event being discussed; the person communicating the information for that record had personal knowledge of the event; the records are kept in the ordinary course of a regularly conducted business activity; and the business has a regular practice to maintain such records.

The Third District also addressed the trial court’s determination that the lender had failed to prove the existence of a default letter being sent to the Britos because this issue was never raised during the proceeding. The Third District directed that a final judgment of foreclosure be entered by the trial court in favor of the lender.

It is important to understand exceptions for hearsay. The business exception rule allowed a party to introduce its records and have a witness testify to those records, even if the person was not responsible for creating the record in the first place.

Father gets Second Bite to Stop Paying Child Support

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L.G. v. Department of Children and Families, 227 So.3d 653 (Fla. 4th DCA 2017)

In this case, Florida’s Fourth District Court of Appeal reversed an order denying a father’s (L.G.) request to renounce his paternity of a child. While the father and the mother were never married, L.G.’s name was listed as the father on the birth certificate. After a DNA test revealed that L.G. was not the biological father, he asked the trial court to remove him as the father to alleviate any financial obligations to support the child. The trial court denied the request on the basis that another father would first have to assume the paternity of the child and the related support obligations. However, in 2006, the Florida legislature enacted Section 742.18, Florida Statutes that provided a mechanism for paternity to be terminated.

Section 742.18, permits a father to renounce his paternity of a child or terminate a child support obligation, when he is found to not be the biological father. The petitioning father must present newly discovered evidence from the time he had assumed the child support obligations or from the initial paternity determination. A scientific test, such as a DNA test, must be administered within 90 days of the request to terminate or renounce the paternity obligation. Additionally, the petitioning father must be current on all child support payments and cannot have adopted the child.

Because the Statute does not require someone else to first stand in place of the petitioning father and assume the financial obligations for the child, the First District ruled that the trial court erred in its decision to deny L.G.’s petition without giving consideration to the above discussed statutory factors.

This case provides the method that a father can challenge his paternity or terminate his child support obligation without the requirement that another “father” step in and assume the financial responsibility.

SEC Fiduciary Standard for Brokers Faces Delay

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The SEC recommended a uniform fiduciary standard of conduct for broker-dealers and investment advisers in January 2011. Investment advisers and broker-dealers are regulated extensively under different regulatory regimes, but many retail investors do not understand this and are confused by the roles played by investment advisers and broker-dealers.

SEC Chairman Mary Schapiro’s pending departure in December will further delay finalization of these investor protections. She raised concerns as early as 2009, in a letter to broker-dealer CEOs stating that some enhanced compensation arrangements could induce brokers to engage in conduct that is not in investors’ best interest. She reminded CEOs that they have an obligation to police for such conflicts. Click on the link for the full SEC letter to broker-dealer CEOs.

According to a recent Reuters article, “… at issue are the varied rules that apply to different types of financial advisers. Financial advisers who register with the SEC must act as fiduciaries, or in their clients’ best interests. But brokerage firm advisers, who register with the industry’s private regulator, the Financial Industry Regulatory Authority, only have to suggest investments that are “suitable,” based on factors such as a client’s age and risk tolerance.” Click on the link to read the full article titled, “Schapiro’s exit leaves broker fiduciary plan up in air.”

The agency’s goal is to achieve no less stringent requirements for broker-dealers than currently apply to investment advisers under the Advisers Act when those financial professionals provide personalized investment advice about securities to retail investors.

The SEC’s 2011 study on the topic “recommends that the Commission . . . adopt and implement, with appropriate guidance, the uniform fiduciary standard of conduct for broker-dealers and investment advisers when providing personalized investment advice about securities to retail customers.” The standard, according to the study, should be “no less stringent than currently applied to investment advisers under [the] Advisers Act.”

Click on the link to read the January 2011 SEC Study on Investment Advisers and Broker-Dealers.

Fort Lauderdale Securities Litigation and Arbitration Attorney

Contact Fort Lauderdale securities litigation and arbitration attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. He is an experienced securities litigation and arbitration attorney, and is available to assist individual investors, brokers, and brokerage firms involved in securities matters. You can reach him at 954-321-0176 or online.

SEC Chairman Schapiro to Step Down

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SEC Chairman Mary L. Schapiro today announced that she will step down on Dec. 14, 2012. The move was widely expected.

Chairman Schapiro took office in the wake of the financial crisis in January 2009. She focused on a more rigorous enforcement and examination program, and shaped new rules for Wall Street.

The SEC is now “more adept at pursing tips and complaints provided by outsiders, better able to identify wrongdoers through vastly upgraded market intelligence capabilities, and more strategic, innovative and risk-focused in the way it inspects financial firms,” according to an agency release.

In each of the past two years, the agency has brought more enforcement actions than ever before, including 735 enforcement actions in fiscal year 2011 and 734 actions in FY 2012.

In addition, the SEC engaged in one of the busiest rulemaking periods in decades. Due to new rules now in place, investors can get clear information about the advisers they invest with, vote on the executive compensation packages at companies they invest in, benefit from additional safeguards that protect their assets held by investment advisers, and get access to more meaningful information about company boards and municipal securities.

President Obama announced that he intends to designate Elisse Walter, a current SEC Commissioner, as Chair upon Ms. Schapiro’s departure next month. Prior to her appointment as an SEC Commissioner in 2008, Ms. Walter served as Senior Executive Vice President, Regulatory Policy & Programs, for FINRA. She held the same position at NASD before its 2007 consolidation with NYSE Member Regulation.

Fort Lauderdale Securities Litigation and Arbitration Attorney

Contact Fort Lauderdale securities litigation and arbitration attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. He is an experienced securities litigation and arbitration attorney, and is available to assist individual investors, brokers, and brokerage firms involved in securities matters. You can reach him at 954-321-0176 or online.

Mortgage Foreclosure Review Available

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Florida homeowners involved in a foreclosure on their primary residence in 2009 and 2010 may be eligible for a free Independent Foreclosure Review.

Homeowners in mortgage foreclosure who qualify for this program will receive a letter in the mail by December 31, 2011 with more details. If you want your case reviewed, you
must respond to the letter no later than April 30, 2012. Read more