Florida Mortgage Foreclosures Continue to Increase

/in /by

Foreclosures in Florida increased on a year-over-year basis last month for the seventh time in eight months, according to a recent Miami Herald article titled “Foreclosure rate falls nationally, but Florida still trending up.”

Florida now has the second highest foreclosure rate in the country (1 for every 328 housing units), behind only Illinois. New Florida foreclosure filings increased 26% annually in August.

The chart below shows Florida foreclosure activity by county for August, including Palm Beach, Broward, and Miami-Dade counties.

If you and your lender agree that you can not keep your home, there may still be options to avoid foreclosure, according to the Florida Attorney General:

  • Short Payoff: If you can sell your house but the sale proceeds are less than the total amount you owe on your mortgage, your mortgage company may agree to a short payoff and write off the portion of your mortgage that exceeds the net proceeds from the sale.
  • Deed-in-lieu of foreclosure: A deed-in-lieu of foreclosure is a cancellation of your mortgage if you voluntarily transfer title of your property to your mortgage company. Usually you must try to sell your home for its fair market value for at least 90 days before a mortgage company will consider this option. A deed-in-lieu of foreclosure may not be an option if there are other liens on the property, such as second mortgages, judgments from creditors, or tax liens.
  • Assumption: An assumption permits a qualified buyer to take over your mortgage debt and make the mortgage payments, even if the mortgage is non-assumable. As a result, you may be able to sell your property and avoid foreclosure.
  • Refinancing: While refinancing is not necessarily a good option when facing foreclosure and can sometimes even be a predatory practice, there are instances where it may help. Talk to your lender to see if refinancing is an option for you.

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.

Honoring the Victims of 9/11

/in /by

South Florida will commemorate the victims of the Sept. 11, 2001 attacks in a series of memorial activities in Broward and Miami-Dade Counties. Click on the link to view a list of local 9/ll anniversary events.

A live national webcast of the commemoration ceremony at the 9/11 Memorial in New York City, starting at 8:30 a.m. EST on September 11, 2012, can be viewed at www.911memorial.org/.

The lawyers and paralegals at the Fort Lauderdale law firm of Kahn & Resnik join the nation in honoring those who died.

“Buckets of Money” Radio Host Misled Investors, Says SEC

/in /by

Investment adviser Ray Lucia, Sr. conducted misleading investment seminars promoting his “Buckets of Money” strategy, according to SEC charges.

Mr. Lucia claimed his wealth management strategy had been empirically “backtested” over actual bear market periods. Backtesting is the process of evaluating a strategy, theory, or model by applying it to historical data and calculating how it would have performed had it actually been used in a prior time period.

Lucia, who lives in the San Diego area, and his company formerly named Raymond J. Lucia Companies Inc. (RJL) allegedly presented a lengthy slideshow at the seminars indicating that extensive backtesting proved that the Buckets of Money strategy would provide inflation-adjusted income to retirees while protecting and even increasing their retirement savings. However despite the claims they made publicly, Lucia and RJL performed scant, if any, actual backtesting of the Buckets of Money strategy.

“Lucia and RJL left their seminar attendees with a false sense of comfort about the Buckets of Money strategy,” said Michele Wein Layne, Regional Director of the SEC’s Los Angeles Regional Office. “The so-called backtests weren’t really backtests, and the strategy wasn’t proven as they claimed.”

According to the SEC’s order instituting administrative proceedings against Lucia and RJL, they held the seminars highlighting their Buckets of Money strategy in an effort to obtain advisory clients who would be charged fees in return for their advisory services. They promoted the seminars on Lucia’s radio show and on Lucia’s personal and company websites.

A backtest must utilize actual data from the time period in order to get an accurate result, as explained in the SEC’s order. Lucia and RJL have admitted during the SEC’s investigation that the only testing they actually performed were some calculations that Lucia made in the late 1990s – copies of which no longer exist – and two two-page spreadsheets.

The two cursory spreadsheets that Lucia claims were backtests used a hypothetical 3 percent inflation rate even though this was lower than actual historical rates, according to the SEC’s order. Lucia admittedly knew that using the lower hypothetical inflation rate would make the results look more favorable for the Buckets of Money strategy. These alleged backtests also failed to account for the negative effect that the deduction of advisory fees would have had on the backtesting of their investment strategy, and their “backtesting” did not even allocate in the manner called for by Lucia’s Buckets of Money strategy. The slideshow presentation that Lucia and RJL used during the seminars failed to disclose the flaws in their alleged backtests and was materially misleading.

Lucia and RJL also failed to maintain adequate records of the backtesting as they were required to do under an SEC rule, according to the SEC’s order. The pair of two-page spreadsheets was the only documentation of their backtesting calculations, and those spreadsheets failed to duplicate their advertised investment strategy.

The SEC’s order finds that RJL violated Sections 206(1), 206(2) and 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-1(a)(5) thereunder. The order finds that Lucia willfully aided and abetted and caused RJL’s violations of Sections 206(1), 206(2) and 206(4) of the Advisers Act and Rule 206(4)-1(a)(5) thereunder. The SEC’s Division of Enforcement is seeking financial penalties and other remedial action in the proceedings.

Fort Lauderdale Securities Litigation Attorney and FINRA Arbitrator

Contact Fort Lauderdale securities litigation attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. In addition to being an experienced securities litigation attorney, Mr. Kahn also serves as a FINRA arbitrator for individual investors, brokers, and brokerage firms. You can reach him at 954-321-0176 or online.

Commodities Online LLC, South FL Execs Charged in Fraud

/in /by

A $27.5 million investment fraud resulted in SEC charges against attorney Michael R. Casey, Commodities Online LLC founder and former president James C. Howard III, and the company’s vice president Louis N. Gallo III.

The South Florida investment scheme led investors to believe they were purchasing securities consisting of “pre-sold” commodities contracts with a pre-determined profit. However, the supposed profits actually distributed to investors were largely taken from other investors’ funds.

The SEC halted the scheme last year when it obtained an asset freeze and a court-appointed receiver over the companies involved: Commodities Online LLC and Commodities Online Management LLC. The SEC’s follow-up charges are against the founder and former president of the company, James C. Howard III, as well as the company’s vice president Louis N. Gallo III and outside counsel Michael R. Casey, who later became the president.

“This trio teamed up to employ all the hallmarks of an investment scheme,” said Eric I. Bustillo, Director of the SEC’s Miami Regional Office. “Howard met with prospective investors at a luxury hotel to emanate a false sense of wealth and security, Gallo oversaw an in-house boiler room that drummed up investor interest, and Casey was the company’s purported legal counsel who acted anything but lawyerly.”

In a parallel action, the U.S. Attorney’s Office for the Southern District of Florida today announced criminal charges against Howard, Gallo, and Casey.

According to the SEC’s complaint filed in federal court in Miami, Commodities Online offered investors the chance to participate in its purportedly profitable brokering of physical commodities via pre-sold contracts – for example, the purchase and sale of large amounts of seafood or iron ore. Investors were sold participation units in unregistered private placement offerings, each supposedly tied to a commodities transaction in which Commodities Online had already secured a buyer and a seller of the commodity. These participation units would purportedly generate predetermined profits for investors.

The SEC alleges that in reality, Commodities Online performed only a limited percentage of the commodities transactions that were promised to investors. The majority of “profits” allocated or distributed to investors were not profits from completed commodities transactions, but instead taken from the funds of other investors.

Meanwhile, Howard and Gallo were dissipating millions of dollars in investor funds to largely sham companies. Through these companies, Howard and Gallo stole investor funds for their own use. For example, Howard met with prospective investors at a luxury hotel in Fort Lauderdale and offered Commodities Online membership interests. He told investors that the funds raised from the offering would be used for the company’s start-up costs such as salaries, marketing, and advertising.

However, within weeks of receiving $2 million in investor funds for the purchase of the membership units, Howard siphoned $1.45 million to another entity he controlled. Furthermore, Howard failed to disclose to prospective investors that he’s a convicted felon.

According to the SEC’s complaint, Howard stepped down as the company’s president in 2010 after he was arrested for an unrelated investment fraud. He was replaced by Casey, who misled investors about Howard’s continuing control over Commodities Online while also misrepresenting the profitability, structure, and existence of the purported commodities contracts to investors. Casey also failed to tell at least one investor that the funds raised from the purchase of membership interests had previously been misappropriated by Howard.

The SEC alleges that Gallo ran an in-house “boiler room” of telephone sales agents and a network of approximately 20 regional and international sales offices. He failed to disclose to investors that he previously pled guilty to federal bank fraud and other felonies and was serving a term of supervised release while employed at Commodities Online. Gallo also misled investors about Howard’s role at Commodities Online.

The SEC’s complaint charges Howard, Gallo and Casey with violations of Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933, and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. They’re also charged with aiding and abetting violations by Commodities Online and Commodities Online Management of Section 10(b) of the Exchange Act and Rule 10b-5. Howard is further charged with a violation of Section 20(a) of the Exchange Act as a control person of Commodities Online, and the complaint alleges he is therefore jointly and severally liable for Commodities Online’s violations of Section 10(b) of the Exchange Act and Rules 10b-5. The SEC is seeking disgorgement of ill-gotten gains plus prejudgment interest, financial penalties, and permanent injunctions against Howard, Gallo, and Casey. The SEC’s complaint also names several relief defendants for the purposes of recovering investor money steered to those entities in the scheme: Sutton Capital LLC, J&W Trading LLC, American Financial Solutions LLC, and Minjo Corporation.

Fort Lauderdale Securities Litigation Attorney and FINRA Arbitrator

Contact Fort Lauderdale securities litigation attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. In addition to being an experienced securities litigation attorney, Mr. Kahn also serves as a FINRA arbitrator for individual investors, brokers, and brokerage firms. You can reach him at 954-321-0176 or online.

Miami Condo Construction Using Buyer Financing

/in /by

Condominium developers in Miami are turning to a new source of financing – buyer deposits – to fund the construction of the next wave of condo buildings, now that bank loans have become more difficult to get. Some of the developments using buyer financing include:

  • MyBrickell, located at 30 SE Sixth Street
  • Millecento, a 42-story tower with 382 units at 1100 South Miami Avenue
  • BrickellHouse, a 46-story, 374-unit tower at 1300 Brickell Bay Drive

A story in the Miami Herald titled “New condo financing model has merit — and risk,” reports that developers are turning to cash-rich purchasers, many of whom are investors from outside of the U.S. A similar real estate financing model apparently is common in some parts of South America. Buyers are stepping forward from Latin America, Canada, and Europe.

According to the Miami Herald, “… condo buyers are agreeing to put up as much as 80 percent in a series of down payments during construction. Ten percent of each deposit is kept safe in an account the developer doesn’t touch, as required by state law. The rest is available for construction.”

Condominium buyers who underwrite construction financing assume a number of risks, and are advised to speak with a qualified Miami condo real estate attorney prior to committing funds.

South Florida Condominium and Real Estate Attorney

Contact South Florida condominium attorney Marcy Resnik to discuss your need for legal services with a condominium purchase, sale, or business dispute. You can contact Ms. Resnik online or call her at 954-321-0176.

Miami Brokers Defrauded Brazilian Public Pension Funds, Says SEC

/in /by

Two former LatAm Investments brokers overcharged customers $36 million by using hidden markup fees on structured notes transactions, according to SEC fraud charges.

Fabrizio Neves allegedly conducted the scheme while working at LatAm Investments LLC, a broker-dealer that is no longer in business. He was assisted by Jose Luna, says the SEC. The pair defrauded two Brazilian public pension funds and a Colombian institutional investor that purchased from LatAm the structured notes issued by major commercial banks.

To conceal the excessive markups that Neves charged customers, Neves directed Luna to alter the banks’ structured note term sheets in half of the transactions by either whiting out or electronically cutting and pasting the markup amounts over the actual price and trade information, and then sending the forged documents to customers. Neves and Luna further concealed the egregious markups in most transactions by first purchasing the notes into accounts in the name of nominee entities they controlled in the British Virgin Islands.

“Neves lined his pockets with millions of dollars by charging customers exorbitant, fraudulent markups,” said Eric I. Bustillo, Director of the SEC’s Miami Regional Office. “Neves and Luna thought they could hide their scheme and evade regulators by using offshore nominee companies and forged documents, but they thought wrong.”

The SEC also instituted an administrative proceeding against LatAm’s former president Angelica Aguilera, who was the direct supervisor over Neves and Luna. The SEC’s Enforcement Division alleges that Aguilera failed to reasonably supervise Neves and Luna and effectively follow or implement LatAm’s supervisory policies and procedures to ensure the fairness of markups and markdowns they charged to LatAm customers. As a result, Neves and Luna were able to carry out the fraudulent markup scheme undetected.

According to the SEC’s complaint against Neves and Luna filed in U.S. District Court for the Southern District of Florida, Neves negotiated with several U.S. and European commercial banks to structure 12 notes on his customers’ behalf from 2006 to 2009. But instead of purchasing the notes for his customers’ accounts for prices around the banks’ issuance amounts – which totaled approximately $70 million – in most transactions Neves first traded the notes with one or more accounts in the name of offshore nominee entities that he and Luna controlled. Neves then sold the notes to his customers with undisclosed markups as high as 67 percent. Neves had no reasonable basis to mark up the prices that significantly.

The SEC alleges that as a result of the markup scheme, the Brazilian funds overpaid by approximately $24 million and the Colombian institutional investor overpaid by approximately $12 million due to the undisclosed, excessive fees. Neves enjoyed a financial boon from the scheme as LatAm paid him millions of dollars in inflated sales commissions for the structured note transactions that he made at inflated prices. Luna received hundreds of thousands of dollars in inflated salary and commissions from LatAm and tens of thousands of dollars in additional compensation from a company that Neves controlled.

The SEC’s complaint seeks disgorgement of ill-gotten gains, financial penalties, and injunctive relief against Neves to enjoin him from future violations of the federal securities laws.

Luna has agreed to the entry of a judgment ordering him to pay disgorgement of $923,704.85, prejudgment interest of $241,643.51, and a penalty amount to be determined. The judgment permanently enjoins him from violations of the anti-fraud provisions of the federal securities laws. Luna neither admitted nor denied the allegations in the SEC’s complaint. Luna also agreed to settle a related SEC administrative proceeding by agreeing to be barred from association with any broker, dealer, investment advisor, municipal securities dealer, municipal advisor, transfer agent, or credit rating agency.

Fort Lauderdale Securities Litigation Attorney and FINRA Arbitrator

Contact Fort Lauderdale securities litigation attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. In addition to being an experienced securities litigation attorney, Mr. Kahn also serves as a FINRA arbitrator for individual investors, brokers, and brokerage firms. You can reach him at 954-321-0176 or online.

Rodman & Renshaw Fined $315,000 by FINRA

/in /by

Research analysts solicited investment banking business and attempted to arrange a payment from a public company, according to FINRA charges against Rodman & Renshaw LLC. The firm was fined for supervisory and other violations related to the interaction between the firm’s research and investment banking functions.

Rodman’s former CCO, William A. Iommi Sr., was fined $15,000, suspended from acting in a principal capacity for 90 days and must requalify as a general securities principal. FINRA found the firm’s supervisory system was deficient.

FINRA sanctioned two research analysts involved; Lewis B. Fan was fined $10,000 and suspended for 30 business days for violating NASD Rule 2711 by participating in efforts to solicit investment banking business from two public companies, and Alka Singh was fined $10,000 and suspended for six months after FINRA found that she attempted to arrange a concealed fee from a public company for which she provided research coverage.

Rodman, the New York-based broker-dealer subsidiary of Direct Markets Holdings Corp., provides investment banking services, including Private Investments in Public Entities (PIPEs) and registered direct offerings, to public and private companies. It also provides research, sales and trading services to institutional investors and therefore must have supervisory and compliance procedures to monitor potential conflicts of interest between research and investment banking, given concerns that research analysts could be pressured to tailor their coverage to the interests of a firm’s current or prospective investment banking clients.

FINRA found that from January 2008 to March 2012, Rodman failed to have an adequate supervisory system to monitor interactions between its investment banking and research functions. As a result, Rodman failed to prevent research analysts from soliciting investment banking business. In addition, the firm compensated a research analyst for his contribution to the firm’s investment banking business and failed to prevent Rodman’s CEO, a member of the firm’s Research Analyst Compensation Committee while simultaneously engaged in investment banking activities, from having influence or control over research analysts’ evaluations or compensation.

Brad Bennett, FINRA Executive Vice President and Chief of Enforcement, said, “The deficiencies in Rodman’s supervisory system created an environment in which the conflict of interest between research and investment banking was left unmanaged. FINRA will continue to ensure that firms have adequate supervisory systems tailored to the firm’s business and we will continue to sanction firms that demonstrate a weak culture of compliance and internal controls.”

In concluding this settlement, Rodman, Iommi, Fan and Singh neither admitted nor denied the charges, but consented to the entry of FINRA’s findings.

Fort Lauderdale Securities Litigation Attorney and FINRA Arbitrator

Contact Fort Lauderdale securities litigation attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. In addition to being an experienced securities litigation attorney, Mr. Kahn also serves as a FINRA arbitrator for individual investors, brokers, and brokerage firms. You can reach him at 954-321-0176 or online.

Unum Long Term Disability Claim Denial Scrutinized in Recent Appellate Ruling

/in /by

The U.S. Court of Appeals, Ninth Circuit, recently remanded the long term disability case of Leah A. Bilyeu v. Morgan Stanley Long Term No. 10-16070 Disability Plan back to the U.S. District Court for the District of Arizona after the plaintiff appealed the termination of her long-term disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA). Plaintiff Bilyeu also successfully challenged the district court’s grant of summary judgment in favor of First Unum Life Insurance Company on Unum’s counterclaim for restitution of overpaid benefits.

The appellate court ruled that the district court abused its discretion by dismissing this claim for failure to exhaust administrative remedies. The exhaustion requirement should have been excused because Bilyeu acted reasonably in light of Unum’s ambiguous communications and failure to engage in a meaningful dialogue.

Bilyeu was employed by Discover Financial Services from 1987 through April 2004. Morgan Stanley Long-Term Disability Plan (the Plan) provides benefits for long-term disabilities to Discover employees. Unum is the Plan’s claim administrator, and also the insurer and payor of Plan benefits.

Alleging she suffered from several medical conditions that prevented her from materially performing the duties of any occupation, Bilyeu filed a long-term disability (LTD) claim with Unum in April 2004. These conditions included Behçet’s disease, fatigue and anxiety. Unum approved the claim in October 2004. Under the Plan, benefits for disabilities arising from mental illness are limited to 24 months. Unum concluded that Bilyeu’s disability was subject to the mental illness limitation. Bilyeu disputed that conclusion.

A medical consultant for Unum called Bilyeu’s treating physician to discuss her medical condition as the 24-month timeline approached. The two medical professionals disagreed on the diagnosis and course of treatment. Unum then sent Bilyeu a termination of benefits letter, while also providing instructions on how the plaintiff should respond in the event she disagreed with the ruling.

Plaintiff did respond as instructed, however Unum never acknowledged the response. In November 2008, the plaintiff filed a complaint against Unum, alleging that Unum wrongfully terminated benefits under the 24-month mental illness limitation.

Click on the link to read the appellate court ruling in Leah A. Bilyeu v. Morgan Stanley Long Term No. 10-16070 Disability Plan.

Fort Lauderdale Disability Lawyer for Professionals

If you are a business professional who has suffered an unexpected disability through illness or injury, contact Fort Lauderdale disability lawyer Howard Kahn if your disability benefits are at risk. We can help you understand and protect your legal rights to disability benefits. Contact us online or by phone at 954-321-0176.

Ricardo Bonilla Rojas and Firm Shadai Yire Charged in Ponzi Scheme

/in /by

Florida and New York investors are among the 200 victims of a $7 million Ponzi scheme perpetrated by Ricardo Bonilla Rojas and his firm Shadai Yire, according to SEC allegations.

Rojas actively solicited investors through personal discussions with individuals both over the phone and in person, and he also marketed the investment opportunity in presentations to evangelical Christian groups and factory workers who were often inexperienced investors.

Rojas falsely assured investors that their principal contributions were “100% guaranteed” and promised returns up to 50 percent, telling them he’d be investing their money in commodities. But Rojas never actually invested any money in commodities and instead used new contributions to repay earlier investors in classic Ponzi scheme fashion. He stole $700,000 for himself.

In a parallel action, the U.S. Attorney’s Office for the District of Puerto Rico today announced criminal charges against Rojas.

“Rojas targeted novice investors who were often evangelical Christians, and he touted a long history of successful trading in commodities,” said Eric I. Bustillo, Director of the SEC’s Miami Regional Office. “In reality, he was fleecing the flock.”

According to the SEC’s complaint filed in U.S. District Court for the District of Puerto Rico, Rojas and Shadai Yire conducted the scheme from at least August 2005 to February 2009. Rojas, who resides in Arecibo, Puerto Rico, and his company Shadai Yire have never been registered with the SEC to offer securities.

The SEC alleges that Rojas hired some sales agents to help him solicit investors, and paid commissions based on a percentage of the investor funds they raised. Rojas and his sales agents pitched the investment opportunity to individuals as a risk-free way to earn high returns in a short period of time. Rojas also created phony account statements that were sent to investors to hide his misuse of investor money and lead them to believe their investments were growing.

Fort Lauderdale Securities Litigation Attorney and FINRA Arbitrator

Contact Fort Lauderdale securities litigation attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. In addition to being an experienced securities litigation attorney, Mr. Kahn also serves as a FINRA arbitrator for individual investors, brokers, and brokerage firms. You can reach him at 954-321-0176 or online.

SEC Pays $50K Whistleblower Reward

/in /by

A whistleblower who helped stop a multi-million dollar fraud will receive a $50,000 payment from the SEC. The award represents 30 percent of the amount collected in an SEC enforcement action against the perpetrators of the scheme, the maximum percentage payout allowed by the whistleblower law. The name of the recipient was not disclosed.

The 2010 Dodd-Frank Act authorized the whistleblower program to reward individuals who offer high-quality original information that leads to an SEC enforcement action in which more than $1 million in sanctions is ordered. Awards can range from 10 percent to 30 percent of the money collected. The Dodd-Frank Act included enhanced anti-retaliation employment protections for whistleblowers and provisions to protect their identity. The law specifies that the SEC cannot disclose any information, including information the whistleblower provided to the SEC, which could reasonably be expected to directly or indirectly reveal a whistleblower’s identity.

Sean McKessy, Chief of the SEC’s Whistleblower Office, said that since the program was established in August 2011, about eight tips a day are flowing into the SEC. “The fact that we made the first payment after just one year of operation shows that we are open for business and ready to pay people who bring us good, timely information.”

For more information about the SEC’s whistleblower program and how to report a tip, visit www.sec.gov/whistleblower.

Fort Lauderdale Securities Litigation Attorney and FINRA Arbitrator

Contact Fort Lauderdale securities litigation attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. In addition to being an experienced securities litigation attorney, Mr. Kahn also serves as a FINRA arbitrator for individual investors, brokers, and brokerage firms. You can reach him at 954-321-0176 or online.