Store sells diamond for far less than value by mistake cancels sale client says breach of contract

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DePrince v. Starboard Cruise Servs., Inc., 2018 WL 443153 (Fla. 3d DCA Jan. 17, 2018)

In DePrince, the Third District reversed a trial court decision and remanded the case for a new trial, after the trial court failed to follow the appellate holdings from the first appeal. In the first appeal, the Third District required that the trial court instruct the jury on elements of unilateral mistake.

Mr. DePrince purchased a diamond from a cruise line jewelry store, for millions less than the retail value. At the time of the purchase, Mr. DePrince knew that the diamond was being sold for one-twentieth of the actual retail value. When the jewelry shop finally realized the price was incorrect, the store reversed the charges and canceled the sale.  Mr. DePrince filed for a breach of contract.

Starboard Cruise claimed that there was a unilateral mistake, and no breach of contract. To prove unilateral mistake, the party attempting to escape liability must show (1) the mistake was induced by the party seeking to benefit; (2) there was no negligence by the party seeking to cancel the contract; (3) the denial of a release of the agreement would be inequitable, and (4) the position of the opposing party had not materially changed to prevent an unjust result.

The Third District determined that the trial court erred when it instructed the jury on the law concerning unilateral mistake and stated that “an omission of information can be considered inducement” (Mr. DePrince possessed knowledge that this was a once in a lifetime deal, and that the diamond had been mispriced). The trial court had already determined that knowing material information and not telling the other side was not enough. A false statement was required to have been made. For example, Mr. DePrince telling the store manager “You’re [the store] getting a great deal.” Additionally, the jury instructions regarding negligence were also incorrect. The court changed the prior jury instructions and court opinions which originally said, “no negligence” to “some negligence.” This allowed for the jury to find that Starboard could have acted negligently and would still be permitted to rescind the contract. Therefore, the trial court must retry the case.

When someone attempts to improperly rescind a contract, one party is likely to have suffered damages resulting from the breach of contract. Having the right counsel to guide you through the legal process is essential to ensure that your rights are protected and your damages are recovered. If you or someone you know has a breach of contract claim, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process from the drafting of the complaint through trial and appellate proceedings. Call us now at 954-321-0176 to set up a consultation.

Jacobus v Trump, 64 N.Y.S.3d 889, (1st Dep’t 2017)

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On appeal, the trial court’s decision dismissing a defamation case against President Donald Trump was upheld. Cheryl Jacobus, a political strategist, filed a defamation action against Mr. Trump after he called her, during his political campaign, “A real dummy” on Twitter and claimed she “begged for job.”

In 2015, Trump’s campaign reached out to Ms. Jacobus soliciting her interest about becoming the communication’s director for the campaign. After meetings with Mr. Trump’s campaign manager, Ms. Jacobus decided that she could not work for the campaign. Throughout Mr. Trump’s campaign, Ms. Jacobus made comments criticizing Mr. Trump on Twitter and national television. Mr. Trump’s campaign manager, while on a telephone call with MSNBC, claimed that Ms. Jacobus was making these accusations simply because she was upset about not being hired.

To prove defamation, a party must establish that a defendant (a) intentionally made a false statement of fact, (b) published the statements to a third party, and (c) that the statement was not privileged and intended to cause harm. The context in which the words are used and whether those statements are fact or opinion is important. Expressions of opinion no matter how offensive are not actionable, whereas, statements of fact are actionable. A statement of fact is one that can be proven true or false. A reader is more likely to determine statements of fact or opinion based on the forum, where the statements are published. An article published in a newspaper like the Sun-Sentinel or New York Times, would lead one to believe that the information provided in the article was checked for accuracy and is therefore factual. Statements in magazines like the Enquirer are known more for gossip. Forums on the internet have become places where people can freely express their ideas and opinions. People tweet, write blogs, post on Facebook and write reviews all the time. Most of those ideas expressed are merely opinions. Many courts have ruled that comments made in an online forum are statements of opinion not fact.

The trial court determined that Mr. Trump’s tweets were merely an exaggerated reference to Ms. Jacobus’ state of mind. Additionally, the comments being made on a social media platform like Twitter, following Ms. Jacobus making negative comments about Mr. Trump, would almost certainly lead readers to believe that it was a petty quarrel between the two. The appellate court affirmed the determination that the comments were opinion and not actionable.

Defamation cases can be stressful, especially since someone’s reputation is on the line. Having the right counsel to guide you through the legal process helps alleviate that stress while, at the same time making sure your rights are protected. If you or someone you know has a defamation claim, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Mehrdad Golchin v. Masoumeh Farzaneh, 2017 WL 5906886, (Fla. 5th DCA Dec. 1, 2017)

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In Golchin, the Fifth District reversed the trial court’s order requiring a father to pay retroactive child support.

The proceedings commenced in early 2016, when the father transferred his share of the marital home to the mother to offset child support and other obligations for their child. At the time, both parents agreed to waive any claims for child support, and accordingly, the trial court determined that neither parent would be awarded child support, without prejudice to seek a future award of child support. Later that year, the mother filed for child support and the court found in her favor. The father was ordered to pay monthly child support to the mother, as well as, retroactive support before the filing date of the motion. The father appealed the order granting retroactive support.

The Fifth District found that the trial court had erred in its order directing the father to pay child support for the time period prior to the date of the motion. The Fifth District opinioned that a trial court may modify retroactive child support, but only from the date the motion is filed forward and directed the trial court to amend its order consistent with its ruling.

Divorce and child custody cases can be extremely stressful and complicated. Having the right counsel to guide you through the legal process helps alleviate that stress while, at the same time making sure your rights are protected. If you or someone you know is going through a divorce or child custody dispute, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Family Divorce Case Decided In Appellate Court Ten Years After

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David Duncan v. Thalia Tatham Brickman, 2017 WL 4798919, (Fla. 2d DCA Oct. 25, 2017)

In Brickman, the Second District agreed with a father that a trial court cannot modify timesharing as a sanction for a parent’s contempt of a custody order.

The proceedings first began in 2006, following a divorce. While the husband and wife resolved the financial matters from the marriage, the parents could not agree on raising their son leading to further litigation. In 2008, the trial court awarded the father the majority of timesharing with his son. Following years of litigation without rulings being entered by the trial court, the trial court found the father in contempt and imposed equal timesharing, as a sanction.

The Appellate Court first determined it was improper as a matter of law to adversely modify timesharing as punishment for violating a court order. Secondly, the trial court failed in its duty to timely entering orders. Florida Rule of Judicial Administration 2.215(f) states that every judge has a duty to rule upon or announce an order of judgment within a reasonable time.  In this case, the trial court failed in its duty when it took years to decide many of the issues at hand.

Instagram Change in Legal Rights Results in Class Action Lawsuit

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Fort Lauderdale area residents who are busy posting their holiday photos to Instagram should be aware of pending changes in subscribers’ legal rights as defined in the Terms of Use.

Instagram, the photo-sharing service owned by Facebook, is the subject of a class action lawsuit filed in California federal court late last week. The lead plaintiff alleges breach of contract, among other claims, for proposed changes to photo usage terms and a planned move to mandatory arbitration.

South Florida Instagram users may want to review their account to determine if these pending changes in legal terms will alter their plans to use the Instagram service.

Proposed Usage Right Changes for Photos Posted on Instagram

Following is an excerpt from the proposed Instagram Terms of Use scheduled to take effect on January 19, 2013:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy …

Instagram Arbitration Provision Draws Controversy

Consumers also responded negatively to a proposed new language (below) in users’ legal rights. As of January 19, 2013, Instagram wants to subject all user disputes to arbitration rather than litigation.

Except if you opt-out or for disputes relating to: (1) your or Instagram’s intellectual property … ; (2) violations of the API Terms; or (3) violations of … Basic Terms … you agree that all disputes between you and Instagram … will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and Instagram hereby expressly waive trial by jury.

The lawsuit, filed in U.S. District Court for the Northern District of California, is Lucy Funes et. al. vs. Instagram Inc., 12-cv-6482.

Click on the link for Instagram proposed Terms of Use, scheduled to take effect January 19, 2013.

Click on the link to read the current Instagram Terms of Use.

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.

Court of Appeal reversed a foreclosure judgment in favor of the lender to favor homeowner instead

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Maria Supria v. Goshen Mortgage, LLC, 2017 WL 6029671, (Fla. 4th DCA Dec. 6, 2017)

As a consequence of transferring mortgages in the secondary market, a lender’s ability to establish its proper chain of transfers at the time a foreclosure action commences often proves problematic. Recently, the Fourth District Court of Appeal reversed a foreclosure judgment in favor of the lender, Goshen Mortgage, LLC, based upon standing and directed that judgment be entered in favor of the homeowner.

Centerpointe Financial. Inc. made the loan to the homeowner. Centerpointe eventually sold the mortgage and transferred the note through an allonge. An allonge is a document attached to a note that provides additional space for endorsements. Unfortunately, the allonge was detached from the note and misplaced. Ultimately, the loan was purchased by Goshen. When the homeowners defaulted on the loan, Goshen filed an action for foreclosure. At trial, Goshen asserted that it was not a holder of the note but contended it was a nonholder in possession. The Fourth District opinioned that to prove ownership rights as a nonholder, the lender must show; there was an effective transfer, proof of purchase of the debt, or a valid assignment. Goshen did not meet its burden of proof.

Accordingly, when Goshen acquired the loan, it received no enforceable rights. Goshen demonstrates the proper need for a review of all documents at the time a transfer of a loan occurs to avoid the pitfalls encountered by Goshen in the process. We at Kahn and Resnik, PL have the experience to assist all parties in memorializing their rights, and, if necessary to enforce them.

Florida Mortgage Foreclosures Remain High

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Florida courts disposed of 69,513 mortgage foreclosure cases during the time period from July 1 through October 31, 2012, according to a Palm Beach Post article titled “Decline in foreclosure backlog may give false hope.”

While this may sound like good news, underwater homeowners may find two related factors troubling. First, 69,078 new foreclosures were filed in Florida courts during the same time period, for a net decline of only 432 cases. Second, over 40 percent of the mortgage dispositions were dismissals. A mortgage dismissal frequently means that one or both parties are not totally prepared to try the case at the present time, and that the case may simply be refiled at a future date.

Florida courts had 377,272 pending foreclosure cases as of October 31, 2012, according to state courts records and as reported by the Palm Beach Post. That’s a net of just 432 fewer cases than July 1 because of the 69,078 new foreclosures filed in the four-month span.

Fort Lauderdale Foreclosure Defense Attorney

Choosing the best approach to protecting yourself and your family from a mortgage foreclosure involves many legal considerations. Contact Fort Lauderdale mortgage foreclosure attorney Marcy Resnik to discuss how you can defend your legal rights in a foreclosure. You can contact Ms. Resnik online or call her at 954-321-0176.

UBS to Pay $1.5 Billion in Fines for LIBOR Manipulation

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UBS AG recently announced settlements with the U.S. Department of Justice and the Commodity Futures Trading Commission in connection with charges that UBS manipulated LIBOR benchmark interest rates.

LIBOR, short for the London Interbank Offered Rate, is an international daily reference rate intended to reflect interest rates at which banks borrow unsecured funds. LIBOR is based on interest rates self-reported by leading London banks, and is published as an average of the numbers after some adjustments.

Hundreds of trillions of dollars in mortgages, student loans, credit card debt, financial derivatives, and other financial products worldwide are tied to LIBOR, which serves as the premier benchmark for short-term interest rates.

As part of a proposed agreement, UBS Securities Japan Co. Ltd. has agreed to enter a plea to one count of wire fraud relating to the manipulation of certain benchmark interest rates, including Yen LIBOR.

Two former UBS traders, Tom Alexander William Hayes and Roger Darin, were charged in a criminal complaint with conspiracy to manipulate LIBOR. Hayes has also been charged with wire fraud and an antitrust violation. Emails between UBS traders, made public as part of the investigation, provide evidence of market manipulation.

UBS conduct described in the settlements includes the following:

  • Certain UBS personnel engaged in efforts to manipulate submissions for certain benchmark rates to benefit trading positions;
  • Certain employees at the bank colluded with employees at other banks and cash brokers to influence certain benchmark rates to benefit their trading positions; and
  • Certain personnel gave inappropriate directions to UBS submitters that were in part motivated by a desire to avoid unfair and negative market and media perceptions during the financial crisis.

The conduct encompassed by the settlements includes Yen LIBOR, GBP LIBOR, CHF LIBOR, Euro LIBOR, USD LIBOR, Euribor and Euroyen TIBOR, although the nature and extent of the conduct in question varied significantly from one currency to another.

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.

New York Stock Exchange Being Acquired by ICE

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In major Wall Street news, NYSE Eurotext today announced a definitive agreement to be acquired by IntercontinentalExchange (“ICE”), a leading operator of global markets and clearing houses, in a stock-and-cash transaction.

The acquisition combines two leading exchange groups to create a global exchange operator diversified across markets including agricultural and energy commodities, credit derivatives, equities and equity derivatives, foreign exchange and interest rates. The combined company, with leading clearing capabilities, anticipates being well positioned to deliver efficiencies while serving customer demand for clearing and risk management globally.

Under the terms of the agreement, which was unanimously approved by the Boards of both companies, the transaction is currently valued at $33.12 per NYSE Euronext share, or a total of approximately $8.2 billion, based on the closing price of ICE’s stock on December 19, 2012.

NYSE Euronext shareholders will have the option to elect to receive consideration per NYSE Euronext share of (i) $33.12 in cash, (ii) 0.2581 IntercontinentalExchange common shares or (iii) a mix of $11.27 in cash plus 0.1703 ICE common shares, subject to a maximum cash consideration of approximately $2.7 billion and a maximum aggregate number of ICE common shares of approximately 42.5 million.

The overall mix of the $8.2 billion of merger consideration being paid by ICE is approximately 67% shares and 33% cash. The transaction value of $33.12 represents a 37.7% premium over NYSE Euronext’s closing share price on December 19, 2012.

Read the full press release about the NYSE Euronext / ICE merger.

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.

Day Trading Firm Biremis Corp. Loses Broker-Dealer License over Layering

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Biremis Corp., a now defunct Toronto-based brokerage firm, and co-founders Peter Beck and Charles Kim, failed to supervise overseas day traders who used the firm’s order management system to engage repeatedly in a manipulative trading practice known as layering, according to SEC charges.

In layering, a trader places orders with no intention of having them executed but rather to trick others into buying or selling a stock at an artificial price driven by the orders, which the trader later cancels.

The SEC’s investigation found that Biremis – whose worldwide day trading business enabled up to 5,000 traders on as many 200 trading floors in 30 countries to gain access to U.S. markets – failed to address repeated instances of layering by many of the overseas day traders using its system.

The firm’s co-founders Peter Beck and Charles Kim ignored repeated red flags indicating that overseas traders were engaging in layering manipulations. Biremis served as the broker-dealer for an affiliated Canadian day trading firm, Swift Trade Inc.

Biremis and the two executives agreed to a settlement in which the firm’s registration as a U.S. broker-dealer is revoked and permanent industry bars are imposed on Beck and Kim, who also will pay a combined half-million dollars to settle the SEC’s charges.

“Engaged and forceful supervisors are the first line of defense against individual misconduct in financial services companies,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “Beck and Kim were neither, as they saw obvious red flags of market manipulation by their firm’s traders but failed to respond or take any steps to prevent the manipulation. They have learned the painful lesson that supervisors who fail to heed repeated red flags of misconduct will no longer have any place in the securities industry.”

According to the SEC’s order instituting settled administrative proceedings, Biremis, Beck, and Kim exercised substantial control over the overseas day traders. They backed the traders’ trading with capital from Biremis, determined the amount of Biremis capital available to each individual trader to purchase stocks, and set and enforced daily loss limits on each trader. They also wielded authority to reprimand, restrict, suspend, or terminate traders.

The Financial Industry Regulatory Authority (FINRA) imposed penalties against Biremis earlier this year.

The SEC’s order found that many of the Biremis-affiliated overseas day traders engaged in repeated instances of layering from January 2007 to mid-2010. Beck and Kim learned from numerous sources – including three U.S. broker-dealers and a Biremis employee – that layering was occurring, yet they failed to take any steps to prevent it.

For example, in spring 2008, representatives of one U.S. broker-dealer warned Beck and Kim that certain overseas traders were “gaming” U.S. stocks by altering those stocks’ bid and offer prices in order to buy or sell the stock at the altered price. Beck and Kim failed to act on this information.

According to the SEC’s order, Biremis also failed to retain virtually all of its instant messages related to its broker-dealer business, and failed to file any suspicious activity reports (SARs) related to the manipulative trading.

“Broker-dealers must recognize that their supervisory responsibilities over their associated persons don’t end at the U.S. border,” said Antonia Chion, Associate Director of the SEC’s Division of Enforcement. “Broker-dealers face severe consequences if they fail to supervise their traders who engage in manipulative trading, whether those traders are located in the U.S. or abroad.”

The SEC’s order finds that Biremis, Beck, and Kim failed reasonably to supervise the firm’s associated persons (the overseas day traders) with a view to preventing and detecting their layering manipulations. The order also finds that Biremis willfully violated Exchange Act Section 17(a) and Rule 17a-8 by failing to file SARs and Section 17(a) and Rule 17a-4(b)(4) by failing to retain instant messages.

The SEC’s order revokes Biremis’ registration as a broker-dealer and requires the firm to cease and desist from committing or causing violations of Exchange Act Section 17(a) and Rules 17a-4(b)(4) and 17a-8. The SEC imposed permanent industry bars on Beck and Kim, who each agreed to pay penalties of $250,000. Biremis, Beck, and Kim neither admitted nor denied the findings contained in the SEC’s order.

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.