As A Law Firm Our Mission Is To Provide Consumers The Freedom They Deserve
Every product available to consumers is in some way shape or form tied to a contract for stipulating product liability, expectations, and the like.
For example, in 2007, ironically right before our 2008 economic crash, the Harvard Business Review magazine published an article titled, "Companies and the Customers who hate them" by Gail MCGovern and Youngme Moo with the intent to answer the question of, "Why do companies bind customers with contracts, bleed them for fees, and baffle them with fine print?"
In summary, Gail MCGovern and Youngme Moo found it was due to, "bewildered customers, who often make bad purchasing decisions which, can be highly profitable. Most firms that profit from customers’ confusion are on a slippery slope. Over time, their customer-centric strategies for delivering value have evolved into company-centric strategies for extracting it. Not surprisingly, when a rival comes along with a friendlier alternative, customers defect".
While this great Country allows the freedom to contract, in most cases, consumers statistically are the ones who are on the worse side of an unequal deal. While the above statement and research continues to show how the consumers are put in a situation where they are responsible for something, often in an unfair way usually leaving them stuck. As long as companies have the freedom to contract, a consumer also has the freedom to determine their rights and obligations under the contract and only a licensed practicing attorney can review the contractual agreement, and explain to the consumer/client their legal rights based on what the consumer signed in order to then strategize an approach based on the consumer’s objective .
The Firm employs an experienced staff and has been engaged in this area of practice for numerous years, dealing with a wide variety of issues such as determining whether a contract can be amended or terminated amicably and if not, the ramifications and legal issues and defenses available. Even if there is an amicable way to break the contract/agreement, an attorney should still be involved to ensure the Client is protected. If there is no amicable way out, then the Client needs an attorney to defend and/or at a minimum help the Client to understand all of the ramifications of breaking or breaching said contract.
So, if you are in a contract that you need to get out of, do your own due diligence first, hire an attorney who specializes in contract law, understand exactly what you got yourself into, and we will strategize a tailored approach to fit your needs to defend you. The Firm provides legal services for issues based on contract law, specifically never-ending contracts that have no termination.
POTENTIAL LEGAL ISSUES SPECIFIC TO PERPETUITY CONTRACTS AND/OR HOMEOWNERS ASSOCIATIONS
Failed prior attempts to use property- impracticability of performance and/or frustration of purpose
Association may have materially breached the Contract
Fiduciary Relationship - rejection from properties in-house transfer of ownership programs
Various Potential Violations of Home Owners Associations
State statutory violations may have involved: Florida Vacation Plan and Timesharing Act Section 721.01 et seq.; Florida Abuse, Neglect and Exploitation of Elderly Persons and Disabled Adults Section 825.101 et seq.; Florida Deceptive and Trade Practices Act Section 501.201 et seq.; Florida Fair Debt Collection Practices Act Section 559.55 25. et seq. Florida Consumer Finance Act Section 516.01 et seq.; Florida’s Lending Practices Act, Section 687, et seq.; or Similar States’ Statutes.
Federal statutory violations may have involved: Consumer Financial Protection Act Sections 1031 and 1036 of the 12 U.S.C. §§ 5531 and 5536; the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq.; the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq., the Fair Credit Billing Act (FCBA), 15 U.S.C. § 1666 et seq; Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C.A. §5567 Enacted July 21, 2010 and their implementing regulations, or any other Federal consumer financial laws.
Tortious acts performed by the Developer/Seller may have involved: Fraudulent Inducements, Negligent Misrepresentations, Breaches of Fiduciary Duties and other lending practices which relate to the original transaction as well as ongoing payments or demands thereof.
POTENTIAL LEGAL ISSUES AFFECTING CONTRACT RIGHTS
Breach of Contract: Where the parties (1) entered into a contract; (2) the First person did all, or substantially all, of the essential things which the contract required of the First person; (3) all conditions required by the contract for Second person’s performance had occurred; (4) the Second person failed to do something essential which the contract required of the Second Person; (5) the First person was damaged by that failure.
Mitigation of Damages: The mitigation of damages doctrine, also known as the doctrine of avoidable consequences, prevents an injured party from recovering damages that could have been avoided through reasonable efforts. The duty to mitigate damages is most traditionally employed in the areas of contract law.
Fraud: Where the First person (1) makes a false statement concerning a material fact; (2) there is knowledge by the First person making the statement that the representation is false; (3) the First person has the intent that the representation will induce the Second person to act on it; and (4) reliance on the representation to the injury of the Second party. In summary, there must be an intentional material misrepresentation upon which the other party relies to his detriment.
Fraudulent Inducements: Where a First person makes (1) a misrepresentation of a material fact; (2) that the First person of the misrepresentation knew or should have known that the statement is false; (3) that the First person intended that the representation would induce the Second person to rely and act on it; and (4) that the Second person suffered injury by justifiably relying on the information.
Negligent Misrepresentation: Where a First person (1) was acting in the ordinary course of their business; (2) the First person owed a duty of care to the Second person; (3) the First person supplied false information to guide the Second person in the transaction; (4) the First person failed to exercise reasonable care in communicating the information; (5) the Second person justifiably relied on the false information; and (6) the Second person was financially harmed by relying on the information.
Breaches of Fiduciary Duties: The term `fiduciary or confidential relation,' is a very broad one. It exists in cases in which influence has been acquired and abused—in which confidence has been reposed and betrayed. The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another. The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties, that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abuse, that is sufficient as a predicate for relief. A fiduciary owes to its beneficiary the duty to refrain from self-dealing, the duty of loyalty, the overall duty to not take unfair advantage and to act in the best interest of the other party, and the duty to disclose material facts.”
Impossibility of performance: Where the purposes, for which the contract was made, have, on one side, become impossible to perform and “impossibility of performance can include extreme impracticability of performance.
Frustration of purpose: Where one of the parties finds that the purposes for which it bargained, and which purposes were known to the other party, have been frustrated because of the failure of consideration, or impossibility of performance by the other party."
Various Potential Statutory Violations: These are Florida Statutes but similar statutes may exist in other States.
Florida Abuse, Neglect and Exploitation of Elderly Persons and Disabled Adults Section 825.101 et seq.; 825.102 Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties.—
(1) “Abuse of an elderly person or disabled adult” means:
(a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(b) An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult;
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(d) Intentionally, and without lawful authority, isolating or restricting access of an elderly person or a disabled adult to family members for any length of time which could reasonably be expected to result in physical or psychological injury to the elderly person or disabled adult, or with the intent to promote, facilitate, conceal, or disguise some form of criminal activity involving the person or property of the elderly person or disabled adult. It is a defense to a violation of this paragraph that the defendant had reasonable cause to believe that his or her action was necessary to protect the elderly person or disabled adult from danger to his or her welfare.
Florida Deceptive and Trade Practices Act Section 501.201 et seq.; 501.202
Purposes; rules of construction.—The provisions of this part shall be construed liberally to promote the following policies:
(1) To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices.
(2) To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.
(3) To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.
Florida Fair Debt Collection Practices Act Section 559.55 25. et seq. Florida’s Consumer Collection Practices Act (“FCCPA”). Prohibited Practices
Section 559.72, Florida Statutes, provides 19 separate subsections describing the actions that are prohibited by the statute while collecting a consumer debt. Some of the prohibitions are rather obvious. See §559.72(1) (simulating a law enforcement officer or a representative of any governmental agency); §559.72(2) (using or threatening force or violence in collecting a debt). However, there are other prohibitions that are not as obvious and technical failures will constitute a violation of the statute. See §559.72(17) (communicating with a debtor between the hours of 9:00 p.m. and 8:00 a.m. in the debtor’s time zone). Also, there are other provisions that are easy to violate if a business has not established procedures for handling consumer debts. See §559.72(18) (communicating with a debtor if the person knows that the debtor is represented by an attorney with respect to the debt).
Florida Consumer Finance Act Section 516.01 et seq.; 516.02 Loans; lines of credit; rate of interest; license.—
(1) A person must not engage in the business of making consumer finance loans unless she or he is authorized to do so under this chapter or other statutes and unless the person first obtains a license from the office.
(2)(a) A person who is engaged in the business of making loans of money, except as authorized by this chapter or other statutes of this state, may not directly or indirectly charge, contract for, or receive any interest or consideration greater than 18 percent per annum upon the loan, use, or forbearance of money, goods, or choses in action, or upon the loan or use of credit, of the amount or value of $25,000 or less.
(b) The prohibition in paragraph (a) applies to any lender who, as security for any such loan, use, or forbearance of money, goods, or choses in action, or for any such loan or use of credit, makes a pretended purchase of property from any person and permits the owner or pledgor to retain the possession thereof or who by any device or pretense of charging for services or otherwise seeks to obtain a greater compensation than is authorized by this chapter.
(c) A loan for which a greater rate of interest or charge than is allowed by this chapter has been contracted for or received, wherever made, is not enforceable in this state, and each person who in any manner participates therein in this state is subject to this chapter. However, this paragraph does not apply to loans legally made to a resident of another state by a person within that state if that state has in effect a regulatory small loan or consumer finance law similar in principle to this chapter.