Ringless voicemail technology, generally speaking, allows callers to sidestep calling a person’s cell phone number directly, and instead sends messages through to the voicemail service provider’s platform and, finally, to the subscriber. The argument that defendants have advanced is that these actions, by allowing a voicemail to be delivered without ever having a person’s phone actually ring, is not a form of contact that could be considered a call subject to the restrictions of the TCPA. The federal courts in Florida and Michigan disagreed. They determined that because the phone’s subscriber receives a notification that he or she has a voicemail message, the effect of the ringless voicemail is the same as if the phone had rung before the voicemail was delivered. Consequently, these courts found that ringless voicemails are calls for TCPA purposes and that the company which placed these messages may be held liable for such conduct.

Senate Bill 568 on the other hand makes it clear that, as of July 1, 2018, unsolicited ringless voicemails are a persona non grata within the state. Particularly, Senate Bill 568 amended the definition of “telephonic sales call” for purposes such as the Do Not Call list to include “voicemail transmissions.” “Voicemail transmissions,” in turn, are defined as “technologies that deliver a voice message directly to a voicemail application, service, or device” – i.e., ringless voicemails.

Florida’s law does not mean you will never get a ringless voicemail if you are on the Do Not Call list, however. First, some morally ambiguous telemarketers disregard Do Not Call for all sorts of messages. They are often created in other countries or using fake or “spoofed” numbers, and they know it’s hard to police them in an age of global calling by way of the Internet. At most they are using debatable methods to steer leads to legitimate businesses. More likely they are outright scams trying to steal money or personal information.

It is worth noting though, the law allows certain calls by schools, non-profit and charitable groups, or people taking surveys. Florida law says the Do Not Call restrictions do not apply to “a charitable or political organization that is seeking donations,” according to the Senate staff analysis.

When the Do Not Call list is not enough to stop telemarketers from sending those annoying ringless voicemails, the recent rulings concerning the TCPA should be considered a brand new shield against unwanted ringless voicemail messages. Or, as evidenced by the recent lawsuits and the future ones that are likely to pop in their wake, these rulings can be used as sword.

Sweeney Law, P.A. Has Vast Experience in Handling TCPA Issues

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles TCPA matters throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding TCPA law and issues relating to ringless voicemails contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com

What do hurricanes and general contractors have in common? Bad ones can put Florida homeowners in a really tough spot. And, combined with a bad contractor, it can leave a homeowner in a disastrous situation.

Florida is a hotbed for destructive hurricanes and unscrupulous contractors. Often, such contractors exploit homeowners who suffered property damage to fraudulently obtain excess money from federal relief funds.

In the wake of Hurricane Katrina, the U.S. Department of Justice started the National Center for Disaster Fraud to combat criminals seeking to manipulate people during vulnerable times. The center develops and advances the detection, prevention, investigation, and prosecution of fraud connected to natural and man-made disasters, and it supports victims of such fraud. More than 20 federal, state, and local agencies work with the center, often ensuring that complaints reach the appropriate agency for investigation. Homeowners whose property is damaged by a hurricane or other natural disaster, should follow these DOs and DO NOTs when hiring a contractor:

• DO NOT accept work from unsolicited parties or those who say they repair property at a discount with leftover supplies from another job.
• DO have the insurance company assess the damage prior to ordering repairs to guarantee that the work will be covered under the policy.
• DO NOT negotiate or contract with a contractor before verifying their license from the Department of Business & Professional Regulation and the county construction licensing board. A licensed contractor can be looked up and verified on the department’s website (www. MyFloridaLicense.com).
• DO get at least three written, itemized estimates or bids on repairs.

• DO NOT hire a contractor that is not bonded. Make sure to verify with the bonding agency.
• DO establish proof of insurance and confirm with the insurer that its policy is current.
• DO NOT pay the entire amount of a repair up-front. In fact, be wary of contractors asking for more than 10 percent up front. Florida law requires a contractor to apply for a permit within 30 days and start work within 90 days if more than 10 percent of the contract is collected up front.
• DO read the entire contract, with the fine print, before signing, and confirm that the contract contains the mandatory “buyer’s right to cancel” (within 3 days) terms.
• DO NOT sign a certificate of completion or present final payment until content with the work performed.

Contractors are not the only professionals that Florida home-owners need be wary of. Disreputable public adjusters have also been known to scam property owners after natural disasters.

It is important to know that public adjusters are barred from charging more than 20 percent of the insurance claim payment on claims not based on a declared emergency and 10 percent of the insurance claim payment on claims based upon a declared emergency for claims submitted in the first year after the declaration of the emergency. Though, these fee caps pertain only to residential property insurance policies and condominium unit owner policies. The fee cap is the same on re-opened or supplemental claims. The public adjuster’s fee may not be based upon any payments made by the insurer to the insured before to the time of the public adjuster contract.

Also note that an insured or claimant can cancel a contract with a public adjuster without penalty or obligation within 3 business days after the date it was executed or within 3

business days after the date the insured or claimant told the insurer of the claim, whichever is later. The adjuster’s contract needs to reveal to the insured or claimant his or her right to terminate the contract and must advise that the notice of cancellation has to be submitted in writing and sent by certified mail, return receipt requested, or other form of mailing which provides proof, to the public adjuster’s address specified in the contract. However, during any state of emergency as declared by the Governor and for a time of 1 year after the date of loss, the insured or claimant will have 5 business days after the execution date to cancel a contract with a public adjuster.

Overall, Florida property owners need to be even more careful during these times of disaster. Criminals posing as professionals will attempt to take advantage of the unalert. Anyone who believes they are the victim of one these fraudsters should contact a legal representative as soon as possible.

See page 11 for original article – https://www.browardbar.org/wp-content/uploads/barrister/2019/sept/September2019Barrister.pdf

Imagine for a moment that a long-term client calls her attorney to discuss some items, and, in passing, the client ad-vises her attorney that she really has been bringing in new customers lately. The attorney congratulates her, and asks how she is drumming up so much new business? The client in turn advises the attorney that she is using cutting edge mobile marketing activities that are regularly sending promotional text messages to current and potential clients. The client asks the attorney if there are any legal issues with this type of marketing, and the attorney responds no. The cli-ent then tells the attorney that her telephone number won’t stop ringing with new prospective clients. The attorney hangs up the phone and then continues with the day.

Well, the attorney in this scenario better call that client back and advise her of the implications of a very strong consumer protection statute– the Telephone Consumer Protection Statute. In 1991, Congress passed the act, codified at 47 U.S.C. § 227, to address “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes.” Congress later amended the act via the Junk Fax Protection Act of 2005 and the Truth in Caller ID Act of 2009. However, for the most part, the original statute has not been amended.

The act regulates calls or transmissions made using an automatic telephone dialing system, as well as certain artificial or prerecorded voice calls. Unless a recipient has given prior written consent for telemarketing calls or provided the recipient’s number to a creditor, the call-er may not:

• Make pre-recorded voice calls or calls via an automatic telephone dialing system to a recipient’s cell phone or other mobile device. The act defines ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C § 227(a)(1);
• Send text messages from an automatic telephone dialing system;
• Make pre-recorded voice calls that are non-emergency to a recipient’s residential phone line; or
• Send faxes for the collection of a debt.In addition, a recipient has the right to revoke consent.

If a company violates the act, the recipient can file a private lawsuit against the company and seek: (i) injunctive relief; and (ii) the greater of actual damages or $500 for each violation of the Act. 47 U.S.C. § 227(b)(3).

Additionally, the act provides that a court, “in its discretion,” may award treble damages if the defendant “willfully or knowingly” violated the statute. What constitutes a “willful and knowing” violation of the TCPA depends on the court in which the action is filed. Notably, some courts hold that a defendant must know that its actions violate the act, while other courts require only that a plaintiff show the defendant willfully or knowingly sent the unsolicited fax or made the prerecorded call. Common defenses to claims usually concern whether express consent was provided, whether the consumer has an arbitration agreement, and whether the technology utilized in contacting the consumers is considered an automatic telephone dialing system.

The amount of claims filed throughout the country has been steadily increasing in recent years. Consumer attorneys will often file a class action lawsuit based upon minor violations of the act in efforts to increase the value of their claims. The case law interpreting the act is always evolving due to the changing technological landscape. Attorneys need to be aware of the basic principles of the act and the potential implications of mobile marketing activities.

See page 16 for original article – https://www.browardbar.org/wp-content/uploads/barrister/2019/june/BarristerJune19.pdf

Florida Has Not Expressly Adopted FRCP Rule 34. However…

It is important to note that Florida has not directly adopted the Federal Rules of Civil Procedure Rule 34.  In the alternative, Florida Rules of Civil Procedure Rule 1.280(b)(1) states, “parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action….” The difference between Rule 34 and the Florida rule is that Florida presents an expansive definition of discoverable materials and does not specifically make mention of ESI.  In addition to Rule 1.280(b)(1), Rule 1.350 states that “any party may request any other party to…inspect and copy, test or sample any tangible things that constitutes matters within the scope of Rule 1.280(b)(1)….” Again, Florida takes an expansive view of what is discoverable. Litigants in Florida should anticipate that with such an expansive view, any and all forms of ESI are discoverable in Florida.

Preservation is Key

The preservation of ESI for the purposes of litigation is essential to keeping sanctions and other adverse rulings at bay.  In two Florida cases, we learn that the preservation of ESI when requested by the court is critical. In Coleman Holdings v. Morgan Stanley, Defendant Morgan Stanley failed to preserve emails after repeated document requests were made by the Plaintiff. Even as the litigation commenced, the Defendant failed to produce the requested emails. The court issued a jury instruction that provided that the jury find in favor of the Plaintiff if they should agree that failing to provide the requested emails was part of a scheme to defraud. The jury voted ‘yes’ on the issue. Similarly, a Florida court imposed daily sanctions on a defendant who failed to produce requested ESI documents. The appeal of the sanctions was denied and the lower court’s imposed sanctions were held.

Even Databases are Not Excluded

One form of ESI that is often forgotten by litigants is databases.  As expansive as the Florida rule on discoverable items is, it is evident that even information on a database is discoverable. For example, in a medical malpractice case, a medical center should anticipate a document request for information stored on a patient portal. Similarly, other forms of databases that individuals do not anticipate can come into issue. For example, depending on the nature of a case, ESI on your Amazon ecommerce account (i.e., your Amazon orders) can become the subject of a document request.  In fact, courts truly take an expansive view of discoverable ESI in Florida.

Fort Lauderdale Consumer Law Attorney

If you are seeking to better understand ESI discovery practices in Florida and how it affects your consumer rights, it is wise to hire an attorney.  With legal counsel, you increase your chances of getting it right the first time. Attorney Brendan A. Sweeney has years of experience advising on consumer law issues.  Contact us now for a consultation.

Resources:

edrm.net/glossary/esi-electronically-stored-information/

floridabar.org/news/tfb-journal/?durl=%2Fdivcom%2Fjn%2Fjnjournal01.nsf%2FAuthor%2FF3CEE9EEFD8CF899852571F5005A3E37

floridabar.org/news/tfb-journal/?durl=%2Fdivcom%2Fjn%2Fjnjournal01.nsf%2FAuthor%2FF3CEE9EEFD8CF899852571F5005A3E37

phonl.com/fl_law/rules/frcp/frcp1280.htm

guides.law.fsu.edu/ediscovery/rules

A lemon is a new vehicle that possesses manufacturing defects. The defects are usually found to affect the value, safety and purpose of the vehicle. As such, a vehicle that possesses irredeemable issues with one or various parts qualifies as a lemon.  Realistically, more than 1% of vehicles sold yearly in the United States are lemons. It is quite disheartening to purchase a brand new car and discover that it is a lemon. Thankfully, there are state and industry safeguards in place to significantly lessen the likelihood that you will purchase a lemon. However, it still occurs. Here are some tips on how to find resolve if you find yourself the owner of a lemon.

Florida’s Lemon Law and How it Works

Florida has a statute that addresses the issue of lemons. Pursuant to the statute, a buyer who discovers a defect has three attempts to fix the defect. If the defect is recurring after the third attempt, then the manufacturer of the vehicle has a last attempt to fix the defect. If the manufacturer fails to fix the defect, then the vehicle is deemed a lemon and the case falls under the umbrella of Florida’s lemon law. At this point, the buyer has the right to obtain a refund of the purchase price or a replacement car. The car being in and out of the shop for 30 days can also trigger the Florida lemon law.

How to Approach Your Lemon Case

If a brand new car presents defects, it is wise to immediately report those defects to the manufacturer. Make the notification in writing or in an official form with the respective date visible. This is imperative because manufacturers can argue “inadequate notice” as a way to refuse to provide a replacement or a refund. Aggressive manufacturers can also point the finger at the owner of the vehicle. They can argue that the defect is not due to a manufacturer error, but in fact, due to accident, wear and tear or even neglect. Owners must document all repairs and usage if they are dealing with predatory manufacturers who are resistant to lemon laws. Further, an owner of a defective car may find themselves bound to an arbitration clause thus restricting them from seeking in-court redress. Buyers should be aware of the rights they are signing away as it relates to manufacturing defects. Still, Florida’s lemon is clear and resistant manufacturers who sell cars in the state must abide by it.

Florida Lemon Law Attorney

Sweeney Law, P.A. can help guide you through the many steps of dealing with a lemon car. Consumers must know their rights and obligations when it comes to lemon law. Consumers must also be aware of fraudulent and predatory dealings by manufacturers who refuse to abide by the various state laws and regulations. Do not fall victim to a defect car transaction. Florida attorney Brendan A. Sweeney has years of experience advising, representing and arbitrating lemon law cases. Contact us now for a consultation.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0681/0681.html

There is a reason for the increase in advertisements regarding reverse mortgages, the “baby boom” generation, those born from 1946 to 1964, are increasingly retiring and the homeownership rate for individuals aged 55-64 is about 74%. It has been estimated that homeowners aged 62 and older have a combined $3.84 trillion of equity in their homes. Furthermore, rising health care costs coupled with longer life spans means that many baby-boomers will outlive their retirement fund, assuming that they even have one. As such, the reverse mortgage lenders would like to tap into this huge amount of equity that “baby boomers” have established in their homes.

What is a reverse mortgage?

A reverse mortgage is a special type of home loan that lets the borrower convert a portion of the equity in their home into cash. A nice way to think of it is having your home act as an ATM that can give you money from the equity in your home whenever you want.

Types of Reverse Mortgages

There are currently three types of reverse mortgages. First, the single purpose reverse mortgage, offered by some state, local, and nonprofit organizations. These types of reverse mortgages can be used for only one purpose, which is specified by the government or nonprofit lender, for example the loan can only be utilized for home repairs. Second, proprietary reverse mortgages, are private loans backed by the companies that develop them. Third, and the most common, federally insured reverse mortgages are Home Equites Conversion Mortgage (HECM).

In order to qualify for a HECM, the Federal House Administration (FHA) requires that: the borrower be 62 years of age or older; own the home without any mortgage debt, or have a very low mortgage debt that can be paid off with the proceeds from the reverse mortgage; be able to pay the taxes and insurance on the property; and the borrower must live in the home. There are also requirements with respect to the type of homes that are eligible for HECMs. The home must be a single-family home or a 2-4 unit home with one unit occupied by the borrower. Additionally, HUD-approved condominiums and manufactured homes that meet FHA requirements are also eligible for HECMs. Lastly, the FHA requires that the potential borrower receive loan counseling from an independent third party informing them of the details of the loan and any other viable options depending upon the borrower’s financial circumstances.

Characteristics of Reverse Mortgages

Reverse mortgages are “rising debt” loans, that is the balance increases over time. The accruing interest and principal amount of the payments to the borrower are a lien held by the reverse mortgage lender on the home. If done correctly, the reverse mortgage lender will have a first lien on the home. However, issues do arise with respect to the reverse mortgage lenders lien priority in the home. The balance of the debt must be paid once the borrower no longer lives in the property. Reverse mortgages are “non-recourse” loans, meaning the borrower cannot owe the lender any more than the value of their home. Moreover, there are many different types of payment plans available for both fixed rate and adjustable rate loans. As for adjustable rate reverse mortgage loans, the following types of payments plans are commonly utilized by borrowers:

• Single Disbursement Lump Sum: a single lump sum disbursement at mortgage closing. I always jokingly refer to this as the Vegas option, take the money and see what happens.
• Line of Credit: unscheduled payments or in installments, at times and in an amount of your choosing until the line of credit is exhausted.
• Tenure: equal monthly payments as long as at least one borrower lives and continues to occupy the property as a principal residence.
• Modified Tenure: combination of line of credit and scheduled monthly payments for as long as you remain in the home.
• Term: equal monthly payments for a fixed period of months selected.
• Modified Term: combination of line of credit plus monthly payments for a fixed period of months selected by the borrower. 
  

What Happens When the Borrower Dies

Upon the death of the borrower, if the borrower’s heirs want to keep the home then they have the option of repaying the loan by paying the lower of the loan balance in full or 95 percent of the home’s appraised value. Or, what most often occurs is that the heirs simply allow to home to go over to the reverse mortgage lender, and the heirs go about their merry way while their loved one was able to use the equity in their home for home renovations, living expenses, medical expenses, or an amazing bucket list trip.

Sweeney Law, P.A. Regularly Represents Parties Dealing with Reverse Mortgage Issues

Brendan A. Sweeney, Esq., of Sweeney Law, P.A., has litigated complex reverse mortgage issues throughout Florida. Brendan A. Sweeney, Esq., is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Legal Elite Rising Star Attorney in 2014, 2015, 2016 2017, and 2018. If you have any reverse mortgage issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.

The Florida Consumer Collection Practices Act establishes legal protections to eliminate deceptive and abusive debt collection practices. The Act covers practices by both debtors and creditors. FCCPA supplements the Fair Debt Collection Practices Act, which provides the same protections under federal law. FCCPA adds additional protections for consumers conducting business and those engaged in financial transactions in the state of Florida. Therefore, FCCPA provides greater protection for transactions arising out of the state of Florida and transactions concerning its residents.

2. Debt Collectors Cannot Engage in Certain Tactics
   

Under FCCPA, debt collectors are prohibited from engaging in a wide range of abusive and deceptive practices. Debt collectors cannot (1) use threats or violence, (2) contact third parties about the debtor’s debt, (3) berate family members, (4) contact the debtor after 9 p.m. and before 8 a.m., (5) seek to continue corresponding with the debtor after the debtor has retained counsel, and (6) contact the debtor pretending to be a law enforcement officer (Section 559.72). Above are just a few of the many practices prohibited under the FCCPA. As evident, the law strives to maintain professionalism in the practice of debt collection. For the debtor, the law seeks to alleviate some of the burden that comes along with being the subject of a collections action.

3. FCCPA Requires Creditors to Register

FCCPA seeks to utilize administrative remedies and processes to resolve disputes between the debtor and creditor. First, the FCCPA provides that all creditors must register with the state of Florida. The registration enables the entity to collect debts in the state. The registration also permits the state to track the activities of the creditor. As a result, if the state finds that a creditor is engaged in abusive behavior, the state can revoke or suspend its registration. A creditor who fails to register with the state is subject to a hefty administration fine. The rule covers creditors of all sort including the traditional collection agencies to attorneys.

4. Creditors Can Seek Civil or Criminal Remedies

A debtor can seek civil or criminal penalties against creditors who engage in deceptive and abusive practices in violation of FCCPA. This occurs when the debtor has exhausted their administrative remedies. In this scenario, the debtor can bring suit against the creditor in a county court. If the creditor fails to successfully defend the case, they are required to pay actual damages, statutory damages, court costs, and reasonable attorney’s fees. Interestingly enough, the criminal aspect of the FCCPA is covered under the registration rules. A creditor who does not register is subject to a misdemeanor charge. The charge is a more serious one if it is coupled with fraud or concealment. Even if the debtor pursues a case under FCCPA, they should keep in mind that they may also have some form of redress under federal law.

Fort Lauderdale Consumer Lawyer

Attorney Brendan A. Sweeney is an experienced consumer law attorney with years of experience litigating and advising on FCCPA issues. He has represented countless companies and private individuals in their consumer law cases. Contact us now for a consultation.

Resource:

ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text