FRS re-enrollment in 2017


February 2nd, 2017 by Thomas Oates

The Florida Retirement System (FRS) has a major flaw which disincentives reemployment by individuals who were employed by the state prior to July 1, 2010 and have “received a benefit” (i.e. rolledover or withdrew funds) from FRS and then became reemployed by the State. In 2010, the Florida legislature enacted what it referred to as the “double dipping legislation” which prohibited “retirees” from the FRS system, either on the pension side or the investment plan side, from re-enrolling after July 1, 2010. Perhaps the legislature thought this made sense for pensioners who were receiving a benefit and coming back to state employment in an attempt to earn a second retirement, but the statutory definition of retiree is anyone exiting the system or receiving a benefit payment (s. 121.021(60)). Unfortunately, this includes anyone who terminated their participation in the FRS Investment Plan by rolling their money into their own IRA. As defined by Statute, any retiree who thereafter comes back to state employment is prohibited from re-enrollment pursuant to Florida Statute 121.122.

According to a Bill Analysis and Fiscal Impact Statement relating to 2015 Senate Bill 7014 (SB 7014) there are “approximately 5,703 employees who have retired by June 30, 2010, and subsequently return to FRS covered employment, but are not permitted to be renewed members of the FRS.” Approximately 2,918 of that figure are retirees of the pension plan and 2,616 were retirees of the investment plant. These facts are according to the Department of Management Services.

The most recent information available from the Florida Retirement System Pension and other State Administered Systems Comprehensive Annual Financial Report for fiscal year ended June 30, 2016, states that there are 9,568 retires from the FRS who have been reemployed and are not eligible for renewed membership. Remarkably telling is the average length of employment by these individuals which is just 2.34 years. Among this group, almost 56% are less than 59 years of age and the average salary for the group is $33,805. In the six years represented by the two sources cited, the number of reemployed retirees who are not eligible for renewed membership has increased 67%.

Prior to July 1, 2010, there was an exception for elected or appointed officials which was subsequently removed by the 2010 legislation.

Since that time there have been a number of bills introduced to the Florida Legislature to make various attempts at repairing this unjust result. However, for all those state employees including school teachers and other relatively low compensation positions, it appears that the 2017 legislative session will not provide any relief. In previous years, representative Dan Raulerson (Plant City), had offered various bills to help fix this problem. The 2016 bill was HB881/SB7014. In a recent conversation with Representative Raulerson’s office, it appears that the same legislation is not widely supported by other members of the legislature and therefore there are no plans at this time to refile that bill for this 2017 legislative session.

Although extremely disappointing, it is important that those affected by this issue organize their efforts to contact their local legislators and make it known that this issue deeply affects a large population of current and former state employees. Perhaps even more detrimental is the effect that this has on qualified candidates for state employment who refuse reemployment by the state because of this problem or as illustrated below, fail to maintain their employment for any length of time because of their inability to renew their membership in FRS.

If you or someone you know have been affected by the 2010 legislative change prohibiting re-enrollment in the FRS system please contact the author. If you are a media outlet looking for information in support of an article publishing this issue please contact the author.

Together we can make this issue widely known across the state and hopefully change the legislation to eliminate this unjust result.

Florida Statute 121.122; Florida Statute 121.21(60); Florida Statute 121.053

updated: February 9, 2017.

Broward Ancillary Probate


August 12th, 2016 by Thomas Oates

Broward and Palm Beach Ancillary Probate

In Florida, the process of probating assets outside of the original administration is called an Ancillary Probate Proceeding also known as an Ancillary Administration. This is a procedure to bring a subsequent probate administration in order to transfer title to Florida real estate or other assets located in Florida. It is only permitted where an original probate proceeding has been completed in another state where the deceased person resided at the time of their death.

The process works the same as an original probate proceeding except that the only asset of the ancillary probate proceeding is the Florida property or other assets located in Florida. The distribution to beneficiaries remains the same as directed in the will or according to intestate law.

In order to start a Broward Ancillary Probate or a Palm Beach Ancillary Probate we need exemplified copies of the probate proceeding from the jurisdiction of the deceased’s domicile state.

With Florida (especially Broward and Palm Beach Counties) being the second home capital of the nation, we frequently handle ancillary probate proceedings for out of state clients. If the plan for the estate is to dispose of the Florida property by sale, it is always preferable to begin the process as soon as possible. This avoids a delay in the closing when the buyer must wait for the Broward Ancillary Probate or a Palm Beach Ancillary Probate to be completed before the sale can close.

Please call the office to speak with someone regarding your Broward Ancillary Probate or a Palm Beach Ancillary Probate. We can review your particular circumstances and give you an idea of what will be required and the time it will take to complete your Broward Ancillary Probate or a Palm Beach Ancillary Probate. Most times we can handle everything by phone or by mail although we wouldn’t blame you for visiting sunny South Florida in person.

The Law Offices of Oates & Oates, P.A., has been assisting clients with their probate needs since 1978. Please call and speak with Thomas D. Oates to see whether we can help you as well. You can reach me by phone at 954-942-6500 or by calling our probate staff direct line at 954-942-6504. We look forward to speaking with you.

FinCEN GTO Expansion


July 27th, 2016 by Thomas Oates

The Financial Crimes Enforcement Network (FinCEN) recently issued an expansion to their Geographic Targeting Orders (GTO) that will temporarily require certain U.S. title insurance companies to identify the natural persons behind companies used to pay all cash for high-end residential real estate in Broward and Palm Beach Counties. This is an expansion of the previous GTO which was limited to Miami-Dade County. The US Treasury Department credits the GTO for “are helping law enforcement identify possible illicit activity and informing future regulatory approaches.” The expanded rules will require title insurance companies to collect and report personal information behind individuals and corporate buyers paying all cash for high-end residential real estate. The purchase price reporting limited is above $1,000,000 in Broward, Palm Beach and Miami-Dade. The GTO will be in effect from August 28, 2016, and continue for 180 days. FinCEN has identified all-cash high end residential purchases as particularly vulnerable to money laundering. The reporting will not be required for those purchases with external financing.

Broward Probate Rules Update


January 25th, 2016 by Thomas Oates

Broward County Probate division recently announced new filing requirements for all testate and intestate petitions for administration. Specifically, the Circuit has adopted two new required filing forms. They are an Affidavit of Heirs to be filed in all intestate cases (formal and summary administrations) and an Affidavit Regarding Criminal History to be filed in all testate and intestate cases (formal and summary administrations). Just as was the case when the Broward Probate Courts mandated electronic filing, there will be a period of adjustment where some practitioners will learn of the new filing requirements only after receiving a rejection memo from the Broward Probate Court staff attorneys. This can obviously lead to unnecessary delays in the administration of estates.

If you have a Broward County Probate matter please rely on the services of a knowledgeable firm such as Law Offices of Oates & Oates, P.A. We’d love to speak with you about how our firm can help.

Change the Responsible Party with the IRS


January 13th, 2016 by Thomas Oates

When you apply for an employer identification number (EIN) you, or the person applying, needs to provide the “tax responsible party” contact information consisting of a name, phone number and business address. Things change over time. People come and people go. There are numerous reasons to need to update this information. Updating used to be a cumbersome process of writing an old fashioned letter on company letterhead and mailing or faxing it to the IRS and hoping it was processed timely. Recently, the IRS issued new regulations (T.D. 9617) requiring any person assigned an EIN to provide updated contact information. Thankfully the process is somewhat streamlined now with the issuance of Form 8822B (Change of Address or Responsible Party). If you’re presently listed as the tax responsible party for an organization you are no longer affiliated with you should make sure the IRS won’t come calling on you when there’s an issue.

https://www.irs.gov/uac/About-Form-8822B

 

Your Estate Plan Needs a Checkup


January 13th, 2016 by Thomas Oates

Many aspects of estate planning is based upon the current laws in effect at the time you create your estate plan. Occasionally the legislature changes the laws and those changes can have negative consequences on your estate plan. To avoid the unintended consequences of an outdated estate plan you should consult on a regular basis with your trusted estate planning professional to make sure your plan is ready in the event it’s needed.

Not to worry though, most changes enacted by the Legislature include grandfathering provisions to preserve those properly executed estate documents from losing their power simply based on a change in the law. One example of this was the 2011 changes to the durable power of attorney provisions. These changes removed the springing powers clauses in documents executed after October 1, 2011. There were several other changes as well, but there was also a grandfathering provision which protected those documents executed prior to the change. So long as they were lawful at the time, their power remains valid.

There’s always a catch. With all of that said, certain documents are subject to acceptance by the person they are presented to. As banks and other financial institutions update their procedures and review process for certain documents they come to expect certain forms of documents. Presenting an outdated form to a bank may result in non-acceptance. In order to avoid any issues you should have your documents reviewed periodically.

You can rely on the attorneys at Law Offices of Oates & Oates, P.A., to make sure your plan is complete. Call or email to schedule a consultation for your estate planning checkup.

Due Diligence for that Assignment of Lease


September 1st, 2015 by Thomas Oates

A portion of our practice includes business transactions and frequently involves buying and selling businesses and other asset sales which include the assignment of a leasehold interest. In fact, for many businesses the leasehold interest (the lease) is one of the most valuable assets being sold. Everyone assumes that if the asset sale involves the conveyance of real property then a title search and owner’s policy for title insurance would be issued as part of the sale to ensure that the property is not encumbered by a mortgage, lien or other restriction. But what due diligence should be done for those sales including the assignment of a lease?

Perhaps a short analogy would better illustrate the point. Let’s assume you are buying a restaurant. You know the restaurant industry well and have reviewed the financials of the restaurant and see a strong balance sheet and cash flow. You can see from the expenses that much of the net profit is due to the below market rent and it seems like there is a substantial term left on the lease, perhaps even an option to extend.  You close on your purchase and come to find out the landlord is in foreclosure. Will the foreclosure affect your new business? Do you risk losing your business if the property is sold at foreclosure?

While negotiating an assignment of the lease in this age of foreclosures it is imperative that you do a little extra due diligence. Florida is a judicial foreclosure state. We are also a notice state. A lender seeking to foreclose a property must file a lis pendens as part of their foreclosure filing. The purpose of the lis pendens is to put the world on notice of the pending action for foreclosure. It also establishes the priority of interests.

Before you close on your next asset sale you should make sure the due diligence you are doing includes the review of the public records for instruments like a lis pendens which may ultimately affect your lease. It is important that you obtain and rely on knowledgeable counsel to make sure you are protected. The attorney’s at Law Offices of Oates & Oates practice in the areas of business transactions and real estate. Please let us know whether we can assist in your next purchase or sale.

Wait… That’s Not My Signature!: The Need For Specific Denials


August 28th, 2015 by Thomas Oates

A person’s signature can hold tremendous power.  The buying and selling of corporations are finalized with signatures. Wars are waged and alliances are created with just a stroke of a pen. In today’s world of rapid technological advancements, the importance given to one’s signature has remained incredibly high. Whatever the reason for this, one thing is clear. A person’s signature is a very intimate and personal belonging. It is often a person’s sole legal identifying mark. It goes without saying that forging another person’s signature is considered a major crime.

According to renowned forensic document examiner Frank Harley Norwitch, “By placing a signature on a document we are implying intent on our part to agree with circumstances provided by that check, codicil, agreement, contract, etc.” [FN. 1] In this context, it is easy to see why the validity of signatures is so heavily scrutinized.

In Florida, signatures are presumed to be genuine unless the validity of the signature is put at issue. (FLA. STAT. §673.307(1)(b)). When a party wishes to deny the validity of a signature, Florida Statute §673.307 (1) dictates:

“Unless specifically denied in the pleadings each signature on an instrument is admitted.”

This statute has been construed as requiring not merely a general denial, but a specific denial addressed to the appropriate allegations of the other party. Lipton v. Southeast First National Bank, 343 So.2d 927 (Fla. 3d DCA 1977), See also Ferris v. Nichols, 245 So.2d 660 (Fla. 4th DCA 1971). The reason for making specific denials necessary when denying a signature is explained by the Uniform Commercial Code. It reads:

“The purpose of the requirement of a specific denial in the pleadings is to give the plaintiff notice that he must meet a claim of forgery or lack of authority as to the particular signature, and to afford him an opportunity to investigate and obtain evidence… In the absence of such specific denial, the signature stands admitted, and is not in issue.”

The case of Lipton v. Southeast First National Bank gives us a clear example. In that case, a bank filed a complaint seeking to recover on two promissory notes and a written guarantee of one of those notes. The defendant’s answer denied the allegations of the complaint, but did not contain specific denials of the signatures on the instruments sued upon. The court ruled that the general denials given to the validity of the signatures were to be treated as admissions because the statute was very clear as to the requirement of specific denials.

Similarly, in Ferris v. Nichols, the plaintiff filed a complaint that alleged that the defendant executed a promissory note to the plaintiff in five numbered paragraphs. The defendant’s answer read, “Defendant denies each and every allegation of paragraphs 1,2,3,4, and 5 of plaintiff’s complaint.” The court ruled that the defendant’s answer was a general denial of the plaintiff’s assertions and held that such general a general denial had the legal effect of admitting that the defendant did sign the note. Here again, the requirement that a signature be specifically denied is essential to challenging the validity of one’s signature.

The distinction between general and specific denials of signatures is significant. Although the extra effort to plead a specific denial is minimal, it can make a world of difference in the outcome of a case. The attorneys at Oates & Oates P.A. are experienced in prosecuting and defendings claims involving the denial of a written signature.

This article was co-authored by Jason Abitbol in 2012. Jason Abitbol was a graduate student pursuing a Juris Doctorate degree at Nova Southeastern University College of Law in Fort Lauderdale, Florida, and was a law clerk for the Law Offices of Oates & Oates, P.A.

Ladybird Deed: An Enhanced Life Estate


February 9th, 2014 by Thomas Oates

How can I change title to a piece of real property to affect my estate plan and avoid probate, yet still maintain complete control over it during my lifetime, including the ability to un-do the transfer, and not just the right to occupy for as long as I am alive?

Florida recognizes an enhanced life estate, otherwise known as a “Lady Bird Deed.” The name originates from the methods President Lyndon B. Johnson used to convey his property to his wife, ‘Lady Bird’ Johnson. The conveyance is one where the grantor reserves unto themselves full and complete control of the property, including the ability to un-do the transfer. In other words, the grantor doesn’t need the consent of the remainder interests as would be required by a traditional life estate. With a Lady Bird Deed, the original grantor can sell, use, mortgage, profit from, and otherwise deal completely with the property during their lifetime.

In a traditional life estate, the remainder interests are contingent only on the life of the life tenant. The life tenant does not have complete authority to deal with the property. If needed, in order to un-do a life estate, the life tenant (original grantor) would need the signatures and consent of the remainder interests or beneficiaries.

While this form of transfer has the same benefit as a life estate with regards to probate avoidance, it protects the grantor’s/life tenant’s ability to make changes should his or her circumstances change during their lifetime.

A Lady Bird Deed is just one choice of many in a proper estate plan. A transfer of this nature requires very specific language for to be done properly and to avoid the creation of title issues and unintended consequences. Therefore you should consult with a knowledgeable attorney to consider what is right for you and your family. Part of our practice at Law Offices of Oates & Oates, P.A., includes counseling clients on their estate planning, probate, and real estate needs. Please contact our office to set up a time to review your estate plan.

Personal Service Unnecessary in Domestication Procedure


October 10th, 2013 by Thomas Oates

On September the 5th District Court of Appeal issued its opinion in Pratt v. Equity Bank, (Fifth District Court of Appeal Case No. 5D12-4622, published September 27, 2013) ruling that the Florida Enforcement of Foreign Judgment Act (FEFJA) does not require a new service of process in Florida. In this case a creditor used the FEFJA procedure to domesticate a Kansas judgment in a Florida Circuit Court. Once the domestication process was complete, the creditor sought discovery under the Florida Rules of Civil Procedure. The debtor, having failed to respond to the discovery requests, was compelled by an order of the Court to produce the discovery responses and was at risk of being held in contempt under an order to show cause. The debtor ultimately asserted a jurisdictional defense that because he was not served with process in the domestication procedure, the Florida court was without jurisdiction over the debtor. The trial court overruled the debtor’s objection and an appeal ensued.

The 5th District Court of Appeal held that once the creditor completed the FEFJA procedure the Kansas judgment had “the same effect and shall be subject to the same rules of civil procedure, legal and equitable defenses, and proceedings for reopening, vacating, or staying judgments, and it may be enforced, released, or satisfied, as a judgment of a circuit or county court of this state [Florida].”  The District Court rejected the debtor’s constitutional arguments concerning FEFJA’s alleged failure to meet due process standards and the debtor’s minimum contacts. In terms of minimum contacts, the Court ruled that enforcement of the foreign judgment was not barred as to the judgment debtor’s assets located here [in Florida].

If you are attempting to collect a judgment in Florida which was issued by another State or foreign country, or you are defending a domestication action, the attorneys at Law Offices of Oates & Oates, P.A., can assist you.



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