EXTENDED - Florida Enhanced Short Sale Relocation Program

The Florida Enhanced Short Sale Relocation Assistance Program has been extended to December 12, 2011.

This program offers enhanced relocation assistance to help encourage homeowners to engage with Bank of America on a pre-offer short sale. Homeowners may be eligible for relocation assistance between $5,000 and $20,000.*

Eligibility:

• Homeowners with property in Florida
• Short sales initiated without an offer between Sept. 26 and Dec. 12, 2011
• The customer will have to be eligible for one of the without an offer programs, such as the Home
• Affordable Foreclosure Alternatives (HAFA) program or Bank of America's proprietary program (specific investor participation and eligibility criteria do apply to these programs)
• Successful closing of the eligible short sale by Aug. 31, 2012

Exclusions:

• Ginnie Mae, FHA, VA and USDA loans are ineligible for participation
• Lot loans are ineligible for participation
• Properties outside Florida are not eligible for participation
• Short sales initiated with an offer are not currently eligible for the enhanced relocation assistance

Frequently Asked Questions:

How can I find out if my client/homeowner qualifies for this relocation assistance?
Call a Bank of America short sale specialist at 1.877.459.2852,
Monday-Friday 8 a.m. - 10 p.m.; Saturday 9 a.m. - 5:30 p.m. Eastern

Do I have to do anything different to initiate or complete the short sale?
No. If the homeowner's short sale is initiated between Sept. 26 and Dec. 12, 2011, and the property closes by Aug. 31, 2012, the homeowner will be eligible.

Will the relocation assistance funds be reported on the HUD-1?
Yes, they will be documented on the HUD-1, and a 1099-MISC will be issued.

Can the relocation assistance funds be used to pay off existing liens?
Yes, if the investor approves it.

Will this enhanced relocation assistance waive the homeowner's deficiency?
An additional benefit for these pre-offer programs, such as HAFA and Bank of America's proprietary program, is that deficiency may be waived for homeowners who qualify.

Is the relocation assistance added to any other incentives, such as HAFA or Bank of America proprietary program incentives?
No. A homeowner will receive the $5,000 to $20,000 in place of the typical incentive paid out by these programs. The relocation assistance is essentially an enhancement to the standard payout offered on these programs.

Is the enhanced relocation assistance available for other programs?
The enhanced relocation assistance is currently available only to short sale programs initiated without an offer. However, as we gauge the success, we may extend this incentive to other programs.

Questions?
Homeowners and agents may call 1.877.459.2852 Monday-Friday 8 a.m. - 10 p.m.; Saturday 9 a.m. - 5:30 p.m. Eastern to speak to a Bank of America short sale specialist about this exciting relocation assistance offering.

* The relocation assistance payment is calculated based on the unpaid principal balance of the homeowner's loan and the type of short sale that the homeowner completes, but will not be less than $5,000 or more than $20,000. The payment amount will be calculated based on the homeowner's loan balance as of August 2011 and the short sale program in which the homeowner is eligible. The payment will be delivered at the time of closing if the homeowner complies with all terms and conditions of the Short Sale Agreement, including the satisfaction of all second liens and presentation of clear title for the property (the relocation assistance payment can be used to clear those liens). If the homeowner does not comply with all terms and conditions of the Short Sale Agreement, the homeowner will not receive the relocation assistance payment. Even if the homeowner receives relocation assistance, Bank of America, N.A., and their successors and assigns may reserve and retain the right to pursue collection of any deficiency following the completion of the short sale, unless otherwise prohibited by law. The amount of the deficiency and relocation assistance will be reported to the Internal Revenue Service (IRS) on the appropriate 1099 Form or Forms.  We suggest that homeowners contact the IRS or their tax preparer to determine if they have any tax liability. This offer is for Florida properties only. To receive the relocation assistance, the property must close by Aug. 31, 2012.

Are You Ready if the Unexpected Happens?

"I shall not waste my days in trying to prolong them."
- Ian L. Fleming (1908-1964)

A living will, or an advance health care directive, are written instructions to the public about what actions should be done concerning an individual’s health in the event that individual is no longer able to make a decision due to an illness or incapacity. These documents are usually required to be executed by hospitals and doctors prior to surgery or other invasive medical proceedings to ensure that the wishes of an individual are carried out in case something goes wrong. However, these documents are important beyond planned events, they are useful in case the unexpected happens and a decision has to be made after the unthinkable has occurred.

Many may remember the “Terri Schiavo” case where Teresa Marie Schiavo was diagnosed to be in a persistent vegetative state and her loved ones fought in the courts for seven years about whether further life-prolonging procedures should be given. A huge issue in the matter was the fact that Mrs. Schiavo had no written living will informing everyone of her beliefs and wants.

A living will is one important piece of a person’s individual estate planning package. Florida estate planning can be as simple as having a last will and testament, health care surrogate, durable power of attorney, and living will or be inclusive of other asset protection plans including trusts and business succession planning. It is recommended that regardless of what one possess, that one should prepare now to avoid burdening one’s family and friends with making decisions on their behalf when they could have told them in writing earlier.

Please consult with an estate planning attorney regarding your desires and wishes.

Think Positive Even When World News is Negative

There is a lot of anxiety over current events including the state of our economy and the direction of our political leaders. This concern has impacted many businesses, great and small. However, many business owners need to realize that the stock market ups and downs, whether a foreign embassy is fully manned, or countless other issues newscasters display daily.  

It is true that many business owners will feel some type of impact from these larger scale news items, however the impact will probably not be as much as whether their individual business is selling its products and services to its customers. Regardless of the times, people still eat, sleep, get haircuts, go shopping for necessities and little perks, seek entertainment where they can, and millions of other things as they have been doing for years.

There are countless stories of businesses that have survived and thrived from these current down times and the ones that have hit our nation and world in the past. So rather than not do anything for fear of what may come, people should charge forward and continue to try to grow their business and succeed. Business owners everywhere should take a quick look at what they have, think about what they wish to accomplish, confer with their accountants and lawyers about what can be accomplished, and do it.

Protecting Your Biggest Asset - Your Property

When dealing with asset protection, a huge concern is property ownership.  At times, a trade-off is necessary between the control of the property, the tax benefits desired and protection wanted.

In a common scenario, a future husband and wife may own a property as joint tenants in common but wish to maximize their creditor protection and own it as tenants in the entirety.  This transfer may be useful in that they may choose to change ownership to tenants by entirety when they get married.  This change will offer the following benefits:

• give them the ability to have an undivided interest in the property,
• creditors will have limited ability to force distribution,
• the property will automatically transfer to the survivor upon death of one,
• a filing of bankruptcy by one may keep the property secure from creditors by the other.

However, the conveyance may cause a spouse the loss to individually transfer ownership, the property would lose its separate property status, and the entire property would become subject to the surviving spouse's creditors and the whims of the surviving spouse.

While this is just one issue and there are many ways to convey ownership of property, whether real or personal or utilizing corporate ownership or beneficiary interests in trust, there are many issues that should be reviewed and possibly addressed prior to making the transfer.  This runs true even for future business partners as well as marriage and other new ventures.

It is always highly recommended that one should consult with professionals who are experienced and skilled to establish a plan that addresses one's needs, desires and goals.

Business Formation - Choosing the Right One for Your Company

There are many options to choose from when establishing a new business.  Business entities range from simple sole proprietorships, partnerships, corporations, trusts, limited partnerships or limited liability companies to complex entities such as multiple tier stock corporations. The different types of entities each have different managerial control, liabilities, asset protection and tax consequences that should be reviewed and evaluated before proceeding.

Further the choice of the proper business entity must meet its proposed business particularities. The nature of the proposed business and the laws governing that venture may require certain structures to be used to proceed. Additionally one’s individual circumstances is important to the entity choice, since a personal bankruptcy can also risk the loss of your business and its assets too.

One should confer with a legal professional experienced in your field of business to determine what entity choice is appropriate for you.

Are Your Assets Protected?

Despite one’s efforts to limit their exposure to lawyers, there usually still exists the possibility that one may be sued for some reason.  It may happen because business is not as profitable as one may hope and their creditors are all requesting payment OR someone slipped and fell at their house OR someone was not paying attention while driving and got into an accident.  Whatever the reason, one should be prepared and make plans for these potential eventualities.

Asset protection is a plan using legal techniques and strategy to insulate assets from the claims of creditors. The techniques are designed to deter creditors from seeking judgment against a person and/or limit the ability of a creditor from seizing one’s property.  Asset protection is not about concealment or fraud.

An asset protection plan may be developed for a single event, such as starting a new business venture, or be more comprehensive to cover all aspects of one’s life. Additionally asset protection may be as simple as restructuring the use or ownership of a piece of property or be more complex and require the need of implementing creditor protection trusts, forming new business entities, creating defined benefit and qualified retirement plans to reduce future, potential creditor claims.

There are many techniques and strategies that people may use to protect their hard earned assets.  It is always highly recommended that one should consult with accountants, financial planners and attorneys who are experienced and skilled to establish a wealth preservation and management plan that fits one’s particular goals or needs.

Is a Generic "Fill in the Blank" Legal Form Right for Your Business?

Anyone can purchase a fill-in-the-blank form from the store or print one off the web, but are they appropriate for you and your business? 

One’s business may be as unique and creative as you are in running it. While a premade form may cover many of the issues that you need, it may not address all of your unique issues or circumstances. Manufacturers of these forms typically try to address many of the topics typically found with these forms, but you should realize that the form is being sold to the general market and not you individually.  There also exists the possibility that the form may address too much and be filled with information that you do not need (i.e. dealing with collections in pre-paid matters). If this is the case, then hopefully you bought a form that allows you to edit it so you can avoid unsightly cross-outs and possible confusion when the form is presented to a valued client.

Your business forms are only as good as the information in them. That is why a fill-in-the-blank form may not meet your legal business needs. It may behoove you to confer with an attorney to ensure your documents meet your particular legal needs and business requirements.

Independent Contractor OR Employee?

Control.  That is a key word for determining if a worker is an employee or an independent contractor. Many out there still have some confusion about how to classify their workers, and an improper classification may have severe tax and legal consequences.

To determine whether a person is an employee or an independent contractor, one must look closely at how the person is controlled by the employer.  The IRS provides some assistance in helping businesses determine the proper classification of a worker on their website, however the particular facts of the relationship is key to determining the person’s status.  A written contract or the filing of the proper papers with the IRS may help define the relationship, however they will not be definitive to the actual relationship that exists.

A few questions an employer must ask itself is:

1. Do I control or direct how the work is being done or just the end results?
2. Do I control when and where the work must be performed or just that the work be completed?
3. Do I control who the worker may use to complete the work being done or just the end results?
4. Do I control where supplies and services will come from or just that I be given the end product?
5. Do I require training about my procedures and methods or just the end results?
6. Do I reimburse expenses and costs or just pay a set fee?
7. Do I provide benefits such as insurance, pensions vacation pay or sick pay or just pay a set fee?
8. Is the work performed a key aspect of my business or something that just helps my business to run?
9. Is the work permanent or temporary?

While these questions are helpful, they are not everything that must be considered.

If a person is classified as an employee, then proper taxes will have to be withheld, unemployment taxes paid and Form W-2s issued in addition to other potential requirements.  If a person is classified as an independent contractor, then I may be required to only report the correct Form 1099 and allow the employee to pay his taxes himself. Failure to properly classify a worker may result in hefty fees and fines by the appropriate governing agencies.

It is advisable that the relationship of an employer’s workers be reviewed by experienced practitioners to ensure everything is in order and avoid legal problems later.

Business Succession Planning

Like estate planning, business succession planning is something that many put off and deal with only as a last resort.  But also like estate planning, if a business plan is not set up, the consequences to one’s loved ones could be extreme.

The livelihood of a business may change for many different reasons, including retirement, moving, death, divorce, or simply a change of heart.  Should something happen to an owner or there is a fight between the partners, the business itself may curl up and go away.  Those holding the bag will have to wonder what will happen to the employees, who work there, the clients who depend on the services and products offered, and the family and beneficiaries of the owner – all of whom depended on the success of the business.  Several famous businesses have collapsed when inexperienced family members inherited the shares of stock of the successful corporation and expected the bounty to flow to them.  Further, many business partners have jumped shipped when they realized they now had to deal with the spouse of a former partner and could not proceed with business as normal. A successful business succession plan can be set up to reduce these issues.

A successful business succession plan reviews the issues options available and determines the best route for success.  It deals with contingencies of death, disability and the like, finds the appropriate successors for the now vacant positions, and ensures proper payment is had to the correct people amongst other things.  It may also encompass different financial platforms including health care plans, life insurance, retirement plans and the like to create a package that not only deals with a possible death but also can be used for other purposes to help the business be financially stable and grow.

There are statistics that state the majority of us do not have our Wills, Powers of Attorney, Health Care Surrogates, Living Wills and other estate planning documents drafted.  There are many reasons people give; however businesses, like families, should not be harmed by such delays.  Unlike families, businesses are in the position to have the documents ready for such cases when the business is formed.  These documents can be simple bylaws, operating and partnership agreements that clearly define what happens when certain circumstances occur.  The documents can also include more complex shareholder and member agreements addressing other circumstances, issues and concerns that may or may not occur. A business is a child of the owner that needs oversight and supervision.  As many point out - without the correct person reviewing the books and doing the work, a business will not be a success.  Therefore the proper protection should be addressed in the governing documents.

Part of the fun of running a business is doing the work and seeing it succeed; however one must still have an exit strategy so the activities remain pleasurable and not a tiring event that must be endured.  A business succession plan can help reduce one’s anxiety for the future and keep a person coming back for more. No one wants to see the worst case scenario occur, but planning for the worst and hoping for the best is a practice that allows people to sleep at night during these times of uncertainty.

Should a Small Business Mediate Now or Later?

When is the right time to mediate?  The answer to the above is “that depends.” In accordance with the mediation rules, parties can mediate when they voluntarily agree to participate in the mediation process.  For a small business in today’s economic environment, the answer may be “as soon as possible.”

Think of it this way. If you cut yourself and are bleeding profusely, do you let it continue to bleed? Not likely. Instead, you would probably wash off the cut, find some healing salve and put on a bandage.  If it’s really deep, you might even visit an urgent care center or a local doctor. We treat ourselves with care and quick, carefully thought out action. Why would you treat your business issues, such as contractual breaches, disagreements, or collections, any differently?

Perhaps it’s the idea of a potential conflict with a customer, client, vendor, contractor, subcontractor or friend. Perhaps it’s the cost of litigation (both financially and emotionally). Perhaps it’s the lack of understanding of remedies and processes available.

Mediation attempts to reduce the perceived conflicts and avoid the cost of litigation. Mediation is also a process that is available to anyone at any any time. This is something businesses often do not realize. Any time includes the time prior to speaking with an attorney or filing an action in a court of law. This is not to say that attorneys are not beneficial to the mediation process; they certainly can be and many times are. However, as long as the other party is willing to voluntarily seek the assistance of a mutually agreed upon neutral third-party, then you and your business can avail yourself of the assistance of a mediator with or without the added cost of legal representation.

In my experience for collection related matters, I have seen numerous small businesses forego collection of outstanding accounts due to the amount owed (i.e. $200-400). If you add up several of these accounts, you quickly start nearing the thousand-dollar plus mark. As you know, every dollar counts, dollars that could help propel your business. Mediation is an opportunity to address each side’s issues regarding non-payment and to determine whether there is a mutually agreeable settlement opportunity available. I have seen many businesses sit on their rights, only to realize later that the other business has since dissolved, making recovery unfeasible if not near impossible.  If you participate in mediation early, you just might be able to recover some funds or find an alternative source of repayment.

In a non-collection sense, an early mediation may assist in determining each side’s position in a disagreement. Oftentimes one side just needs to feel as though s/he is being heard. Some disputes are about principle as well as principal. In these situations, an early mediation may assist in squelching emotional fires of those involved, potentially saving you and your business from a long-term headache.  Mediation is an opportunity to hear first-hand what the other side is really thinking, feeling and going to argue should the matter escalate. Even if a resolution is not reached, the process should provide you with valuable insight and information, which may aid in resolution at a later time.

Mediator rates vary and are by the hour due to the nature of the process. Hourly rates typically start around $175 per hour and can be as much as $400 (or more).  Depending on the issues, mediations can take anywhere from 30 minutes to eight hours, sometimes longer depending on the complexity of the issues and the number of parties involved. Similar to hiring an attorney or selecting a doctor, the hiring of a mediator is an important decision. Check to see what experience the mediator has with your particular issues. Do not be afraid to ask the mediator what his/her mediation style is.  His/her style can shape the mediation process.

If you live in Orange County, Florida, you may qualify for free Citizen Dispute and Family Law Mediation services through the Orange County Bar Association. Free Mediation services include the following business related issues: landlord/tenant disputes, property damages, recovery of money and/or property, harassment, disorderly conduct, and consumer complaints. Visit: http://www.orangecountybar.org/mediation.asp for more information on this free program. For others outside the area, check with your local bar associations to see if they have a similar program.

Mediation is not about right and wrong; it’s about trying to resolve your issues in a confidential forum. If you have an opportunity potentially to resolve an issue for free or little cost, why not try to stop the bleeding before you need a surgeon?
_______________________________________________________________________
[1] A mediator is not a judge or an arbitrator; s/he does not have the power or authority to make any rulings or judgments and cannot force any participant to take a particular course of action. A mediator is also not to act as an attorney and cannot offer either party legal advice.

[2]The mediation process occurs when the parties agree to abide by the rules of confidentiality and allow for a neutral, third-party to facilitate a discussion of the parties’ issues. If a resolution is reached, the mediator shall make sure the agreement is memorialized in writing.

©2011 by Innes Law Firm, P.L.

Alyson Innes, Florida Supreme Court Certified County & Circuit Court Mediator

Alyson Innes 

Phone: (407) 286-6263
Disclaimer

Microsoft vs. Apple: Can Apple successfully register a trademark for its “APP STORE”?

Why Generalities in Name Selection Can Cause Legal Issues.

One of the ways businesses successfully compete is to brand their products and/or services.  With a catchy and identifiable logo and/or name a business can distinguish itself from the masses.  However, to successfully brand oneself, the branding should be unique and distinctive. A generic term is not considered protectable, and a brand loses its potency when it becomes too commonplace.  If Apple had named itself “Computer Company” would it be nearly as successful? Granted its name is not the only reason Apple has reached the levels of success it has, but the name and the Apple logo are distinctive, remarkable and easily recognizable … and have nothing to do with computers. Furthermore, using a generic term, like Computer Company, confuses the marketplace and does not make your product stand out from the competitors. 

An example of this issue appears in Microsoft Corporation v. Apple Inc., pending case number 91195582 in the United States Patent and Trademark Office before the Trademark Trial and Appeal Board.  Here, Apple sought to trademark the name “APP STORE” for its retail store services. Microsoft objected to this trademark application and filed a Motion for Summary Judgment on January 10, 2011. In its motion, Microsoft claimed that the phrase “app store” is "generic for retail store services featuring apps [applications]," and therefore not appropriate for registration. Apple in opposition to Microsoft's Motion claimed that the common use of its name “APP STORE” is because of the popularity of and connection to Apple's services and goodwill. In short, Apple argued that “app” refers to the sale of the applications as well as the Apple brand.

The Microsoft v. Apple matter is one that should be followed closely by businesses. The significance of this matter could be huge in the software industry as many companies are using the words “app store” in marketing their own products and services.  Additionally, it may have far-reaching consequences effecting many other businesses and industries.  Others have commented that Apple’s potential registration of the phrase “APP STORE” for the sale of its applications and related services would be equivalent to a grocery store naming itself Grocery Store and seeking to prevent its competitors from using the phrase "Grocery Store" in their advertisements. 

No matter the outcome of this matter, the lesson in all of this is that to protect your company, your name, and your brand, you should have your items closely reviewed by the appropriate professional to determine whether they can be protected or registered before you become attached to them. The more colorful and unique the name, the better the chance of success; however, that, in and of itself, is not a guarantee for success.  Before wasting money on registering a name or claiming unfair business tactics by competitors, one should have the proposed mark reviewed by a professional who can competently and thoroughly research the mark and make an educated and experienced opinion regarding its success.  

©2011 by Innes Law Firm, P.L.

* Apple and Microsoft are the registered marks of their respective companies.

For more information about trademarks and copyrights, please contact the authors:

Alyson Innes 

Jonathan Innes

Phone: (407) 286-6263
Disclaimer