What to Bring to Foreclosure Summary Judment

Once upon a time a homeowner had not made his mortgage payments, and he went into default.  At his Foreclosure Summary Judgment, he had to admit that yes there was a note, yes it was executed, and yes he did not pay.  Though he had recently begun to recover financially, things did not look favorably on his case.  The loan servicer was all ready to win…except he had failed to attach the business records to the affidavit. Just because one side is right does not mean they win without the right evidence.  For most foreclosure lawsuits, you come up with the amount of damages from an affidavit of business records.  These records are made at the time of the transactions.  The affidavit without the business records attached is hearsay.  The Lender cannot simply say that the Borrower owes money and write that down on an affidavit as evidence.  How do you cross-examine a piece of paper that the Lender swears is true? (A business record is also an out-of-court document, but it is an exception to the Rules of Evidence for Summary Judgment.  A business record is not hearsay because it is created in the normal course of business and […] Read More

A Good Choice in a Criminal Arrest

One bad choice can lead to another…but it does not have to.  If you have criminal charges against you, legal counsel can be a good choice in an unfortunate situation. The Sixth Amendment gives you the Constitutional right to an attorney in a criminal defense.  Legal Counsel is deemed so necessary in a criminal case that if a defendant cannot afford counsel, the State provides counsel without fee. Yes, you would have been better off if you had not allegedly committed a crime in the first place, but sometimes Captain Obvious picks inopportune times to not show up.  Good legal counsel can help you work with prosecutors towards an appropriate penalty or fine. The problem is, there can be mistakes in procedure and mishandling of evidence.  The other problem is, without proper legal representation, you could receive the maximum penalty.   A criminal arrest is bad—no matter if you are a celebrity like Vanilla Ice, or just plain vanilla—but you do not have to put yourself in a worse position by shutting down choices.  Seek legal counsel for the best possible outcome in an unfortunate situation.   Read More

Misconceptions About Representing Yourself in Domestic Violence Cases

Misconception is when you think you are pregnant, and then you are not.  Misconception is also when you go to an Evidentiary Hearing after a Temporary Injunction for Protection Against Domestic Violence and think you will win because you have a note from your mother saying your ex-boyfriend is violent.  If you think you are saving money by not having an attorney represent you, you could be putting yourself at risk if your ex is violent. You cannot just say, “He hit me.”  You have to have admissible evidence and follow proper procedures in order for the court to act on your claim. In cases of Domestic Violence, you can get a Temporary Injunction separating yourself from a potentially dangerous situation until both parties appear before a judge at a hearing.  That hearing is like a mini-trial.  You can represent yourself in court, but those who do often bring affidavits that are not admissible, or they want to phone a friend.  The hearing is not a game show and it is not Judge Judy. The law is technical, and from a technical standpoint there are things you can mess up that will hurt what you are trying to accomplish.  If […] Read More

Sleeping with the Enemy

Most good legal stories start with a woman.  The first case I ever had started with a woman.  In the Bible, what happens to man?  Woman.  God asks Adam, “Who told you you were naked?”  Eve.  King David?  Bathsheba.  Sampson?  Delilah.  Do not go to an Evidentiary Hearing after a Temporary Injunction unprepared—bring legal representation. In a Temporary Injunction, fifty percent of the time the affidavit against the defendant is lies.  Say the right thing on an affidavit and hubby cannot come home, get his stuff, or even write—it does not matter if he is the homeowner or pays most or all of the rent.  A Temporary Injunction takes the defendant out of the home fast and without warning.  Hubby leaves only with what is on his back as far as personal belongings go. The Evidentiary Hearing is like a mini-trial; both parties appear before a Judge and are subject to the complex details of the law, the rules of court, and the rules of evidence.  You have the absolute right to represent yourself in court, but without legal training and experience, you can unnecessarily change the outcome of the Hearing, sometimes with disastrous results.  If you sleep on your […] Read More

Just Because It Is Written…Does Not Mean It Is Admissible

Just because something is written in a document does not necessarily mean it is true.  In law we do not like hearsay.  An out-of-court document is not reliable and cannot be cross-examined. A witness can be cross-examined, but you cannot cross-examine an Affidavit, or an Arrest Report, or even a Property Appraisal.  According to the Rules of Evidence, these are out-of-court documents, and inadmissible as evidence. What is and what is not admissible as evidence is often a falling down point of do-it-yourself legal representation.  Seek competent legal representation to properly present your case.   Read More

DNA Testing for Dogs

Doggie DNA testing is not just for pedigree anymore.  It is being used to match man’s best friend with the man who did not pick up after his best friend.  It is linking dog poop with dog owners. While most dog DNA testing has been used to trace breeds, a new market is emerging on the grounds of property owners’ associations, where unseemly piles have mounded into complaints.  According to one Orlando property owner association executive director, the DNA testing of fecal samples is less costly than hiring a crew to clean up the ‘amenity deck’ twice a day. DNA testing of humans has freed at least 300 people who were imprisoned for crimes they did not commit.  DNA testing with dogs could now be used to try to leverage fines and possible eviction of people. Read More

Cinderella & the Suppression of Evidence

Prince Charming had a whole wardrobe full of fabulous ball gowns, but his father, the King, insisted on him wearing the masculine cut of a suit—black pants, black tie, black shoes…Boring, boring, boring thought the Prince.  He would have preferred a warm chiffon graced with a diamond tiara.  His father preferred that he give the tiara to an eligible young lady. No one of any class accepted the invitation to the Prince’s ball.  The Wicked Stepmother came with the two Ugly Stepsisters and the Prince thought he would be bored all evening, for none of the town’s bachelors were on the list.  Then in walked this little thing, surely dressed by a fairy godmother, right down to the delicious glass slippers.  She was everything Prince Charming wanted—same waist size, shoulders, and inseam.  She was his exact match in every way, and he loved her instantly, more for her attire than anything. “I must have your dress,” the Prince whispered as they were dancing, but Cinderella escaped his grasp and fled from his unwanted advances on her clothes.  In her haste, however, she left behind one of her shoes.  The Prince took the glass slipper and put it on his own […] Read More

Hearsay About Small Claims Court

Small Claims Court is NOT Judge Judy.  The pre-trial hearing is your chance to ‘admit’ or ‘deny’ a debt.  It is also your opportunity to question or disagree about the debt amount or whether the company suing you has the right to collect that debt. The problem with Small Claims Court cases is… The company suing you (the Plaintiff) may not be the company you owe. The amount they are suing you for may be incorrect. And often the company suing you lacks proper documentation to prove their case. The gap between what is evidentiary and what is hearsay could be your downfall…especially if you do not question it.  A Business Record (like a document kept in the course of a company’s regularly conducted business, recording transactions at or near the time of the transactions and not for the sole purpose of litigation) qualifies as admissible evidence.  However, an Affidavit signed off by the Plaintiff, of the Plaintiff, and for the Plaintiff is hearsay.  We cannot cross-examine an Affidavit…even if it is notarized by Judge Wapner. Contact your attorney or your local Legal Aid office for more information about your rights as a Defendant, the lawsuit filed against you, the […] Read More

DUI & Legal Limits

Some say we never really grow up, we only learn to act in public.  If that breaks down, you may want to get a lawyer. DUI is an unpopular topic, often for good reason; however, if you are charged with Driving Under the Influence, it becomes a necessary discussion. The St. Johns County Sheriff’s Department booklet has this to say about DUI: “It is illegal to operate a vehicle under the influence of alcohol or drugs.  DUI can be proved by a Blood Alcohol limit of 0.08 and higher or if your normal driving faculties are impaired.  Impairment can be caused by alcohol, alcohol in combination with other medications, legal and illegal drugs.  Penalties for DUI include:  arrests, court costs and fines (a court case can cost up to $6,000), impoundment, license revocation of six months to a year, DUI School and Evaluation, ignition interlock device, probation of up to a year, 50 hours of community service and increased insurance costs.  A DUI stays on your record for 75 years.” Alcohol can impair your ability to operate a motor vehicle correctly with safety considerations to yourself and others.  Currently we deal with this problem through penalty, but there are flaws […] Read More

Pay No Attention to the Man Behind the Curtain – Jury Duty

Never mind about me; look at the merits of the case—that is the admonition to the jury.  It does not matter whether my hair is crooked and my jacket smells of milk, do not base your decision on me or any other attorney in a court case; instead, think about what was presented in the trial.  Base your verdict on the evidence and on the judge’s instruction as to the law. Listen to every question and every answer.  Do not decide anything about my client based on how good my tie looks.  You are not in Kansas anymore; you are in the jury box and your job is to be impartial.  The integrity of my shirt collar should not sway your opinion of my client. There is no wizard in justice…there is you.  As a juror, you decide.  Use your brains, your heart, and your courage to weigh the evidence and to bring a peer to justice.  Thank you for serving. Read More