The Blog of Lusk, Drasites, Tolisano & Smith,

Why Settle Out of Court?

2010-02-04T15:31:00.000-08:00

When you are the victim of someone else’s negligence, you want fair compensation quickly and without hassle. Often times, the process for settling a personal injury case is arduous, as each side attempts to prove or disprove fault. With the experienced Fort Myers and Cape Coral, Florida personal injury attorneys at Lusk, Drasites, Tolisano & Smith, P.A. however, the stress associated with such cases can be greatly reduced.

Settling out of court is almost always in your best interest. Personal injury suits that are settled out of court not only take less time but, in a majority of cases, result in much larger compensation for the victim. We will work to present the evidence of your case in a manner that results in the largest settlement in the smallest amount of time; allowing you to get on with your life and heal. No one wants to prolong or increase their own suffering, and we want to make sure you don't need to.

If you have been injured through no fault of your own, and live in Cape Coral or Lee County, Florida, please contact the Florida personal injury attorneys of Lusk, Drasites, Tolisano & Smith, P.A. for a free consultation.

Child Custody Concerns

2010-01-08T15:38:00.000-08:00

If you are going through a divorce and have children, chances are you have dozens of questions about child custody that you need to have answered. Whether your former spouse is willing to settle the question of your children’s custody amicably in a settlement meeting, or if you will ultimately find yourself in court fighting for the custody of your children, an experienced child custody attorney may be the only support you can turn to, to help keep your children.

Several factors will be taken into account by the court when addressing the question of who will have primary custody of your children. Those factors may include:

Living arrangements
Emotional health and safety
Educational opportunities
Quality of life
Your children's preference
Parental history of drug or alcohol abuse
Parental criminal record

Even if your spouse has a higher income than you, the court will not automatically preclude you from having custody of your children. While quality of life is important, the children’s health and safety, and each parent’s parenting abilities will be of primary concern.

If you are in the Cape Coral, Lee County, or Fort Myers, Florida area and are facing a child custody decision, contact us today and let Lusk, Drasites, Tolisano & Smith, P.A., help keep your children at home.

Helping Hands in Cape Coral

2009-12-18T08:54:00.000-08:00

Lusk, Drasites,Tolisano & Smith P.A. sponsored their local Bikers Caloosahatchee Chapter (Abate of Florida). This American Bikers group was founded in 1994 and sponsor families in need throughout the Lee County area. This year Lusk, Drasites, Tolisano & Smith employees joined forces with the Abate group and the Harry Chapin Food Bank to provide dollars needed to pay electric bills and provide needed can goods for eight families that were chosen that needed that little extra Christmas blessing. An extra thanks goes to Attorney Domenic Valentine for coordinating and all the employees who wanted to make a difference in our local community in 2010!

Probate and Wills: Maps for Your Family

2009-12-07T15:53:00.000-08:00

If you have recently lost someone you loved, you are aware of the joy, sadness, surprise, and frustration that can come at the time of the reading of a will. Family members who expected to receive a particular heirloom or object may be disappointed, and loved ones who had expected nothing may find themselves the unexpected beneficiary of the deceased.

Whether the reading of a will is a happy or sad occasion, or if it can't take place due to the lack of a will, all depends on an individual's planning and foresight before he or she passed away. Even the will of an individual with few possessions can be a comforting document for children or a spouse who would otherwise be burdened with determining the division of property and possessions.

If you have not written a will, have questions about wills, or if you need to update your will, an experienced probate and will attorney can be your best friend for the task. Attorneys at Lusk, Drasites, Tolisano & Smith, P.A., can help you with difficult legal phrasing, can ask you questions you may not have considered, and can act as executors to a document which will insure the safety and wellbeing of your family and friends after you have passed away.

If you are in the Fort Myers, Lee County, or Cape Coral, Florida area and have specific questions about wills and probate, please contact us today and find the answers you need.

Real Estate Law and Review

2009-11-09T14:52:00.000-08:00

The Florida real estate market has seen a substantial dip in the past few months. For homeowners and businesses this has been a disappointing time. But for buyers, investors, and new companies, now is a great time to find a deal on a piece of real estate. Purchase demands are remarkably low and foreclosures are up, which means that if you are eligible for loans, you might be able to find what you want at a much lower cost than one or two years ago.

However, not every seller and lender is as ethical as you would like them to be. Because a real estate contract is legally binding, even if it was poorly or deceitfully written, buyers’ eagerness to find a great deal on real estate is making them a prime target for predatory lenders.

If you are considering purchasing a home or other piece of real estate, now more than ever you should be sure to have a trusted advisor with knowledge about real estate law review the contract and insure that everything is above board and easy for you to understand.

If you are in the Lee County, Fort Myers, or Cape Coral, Florida areas, please contact us today and let Lusk, Drasites, Tolisano & Smith, P.A., protect you from predatory lenders.

Florida Car Accidents

2009-11-06T07:18:00.000-08:00

The beautiful Florida sun and the warm temperatures virtually year-round bring many tourists to the state, especially during the summer and winter months. Due to the increased number of drivers on our state’s roads, there is the increased risk of serious car accidents. If you have been involved in a car accident in Florida, you should know your rights. Negligence resulting in a car accident is grounds for a lawsuit. If you are injured due to someone else’s bad driving, you should contact an automobile accident attorney. In the Fort Myers area, the car accident attorneys at Lusk, Drasites, Tolisano & Smith, P.A. have helped countless Floridians following car accidents, and we can help you, too.

If you choose not to seek out the assistance of an experienced car accident attorney and work only with the other driver and the insurance companies, you may lose out on compensation to which you are entitled. We will leave no stone unturned in investigating your case, and we will work diligently to get you compensation for:

Medical bills
Lost wages
Physical rehabilitation
Medications
Funeral expenses (if wrongful death occurred)
Pain and suffering (if applicable)

If you live in the Fort Myers, Florida area and are in need of an experienced auto accident attorney, the lawyers at Lusk, Drasites, Tolisano & Smith, P.A. can help; please contact our office today.

Why Do I Need a Car Accident Attorney?

2009-11-04T07:22:00.000-08:00

It is estimated that just about every single person will be involved in some type of car accident in his or her lifetime. Many of you have already been involved in one or more, and some of you have been involved in automobile accidents resulting in serious injury or death. If you have been involved in a car accident in Florida, you should know your rights following this traumatic event. If someone was driving recklessly or under the influence of alcohol or drugs and caused injury or death, that person is guilty of negligence; negligence is grounds for a lawsuit in Florida.

The experienced car accident attorneys at Lusk, Drasites, Tolisano & Smith, P.A. can explain your rights following a car accident and give you an idea of what compensation you may be entitled to; if a wrongful death occurred due to someone else’s negligence you may be entitled to compensation for your pain and suffering. Each car accident case differs.

Our attorneys will meet with you at the hospital or your home if you are too injured to come to us. We will work diligently to get you the compensation you deserve; in the past, we have worked tirelessly to get our clients compensation for:

Medical bills
Physical rehabilitation
Medications
Lost wages
Pain and suffering
Funeral expenses (in the case of wrongful death)

If you live in Fort Myers, Florida and are looking for an experienced car accident attorney, please contact Lusk, Drasites, Tolisano & Smith, P.A. today to schedule a confidential, no-cost consultation to discuss your case.

Do you have enough Unisured Motorist Insurace Coverage

2009-10-26T07:45:00.000-07:00

It is that time of year again when Lee County is experiencing longer traffic delays, throwing your hands up at the driver who stops in the middle of US41 to decide if he wants to turn or not, and of course you never think you are going to be involved in an accident. Call your insurance agent and make sure you have uninsured motorist coverage. This protects you against being hit by a driver from in-state or out-of-state that does not have insurance. Although it varies from person to person, a normal recommendations would be to have $100,000 in uninsured motorist coverage. If you have an accident make sure you call Lusk, Drasites, Tolisano & Smith P.A. for a free consultation.

Dog Bites: Do you have home owner coverage?

2009-10-22T13:17:00.000-07:00

Did you know that many homeowner insurance carriers exclude many types of dogs such as Pitbull Terriers, German Shepards, Bull Mastiffs, and Rottweilers from injury caused on your property. If you are planning on purchasing a certain dog breed, you should check with your own homeowners insurance to verify if you are protected from any claims made against you and your dog. Many insurance companies now are excluding all dog bites. Responsibility for medical claims and pain & suffering will fall on you personally if not covered properly. Get all the information before you plan on adopting or purchasing that next cute puppy. If you have received a dog bite on someone else property, contact us to talk to an attorney about your rights at no cost to you as an individual.

Foreclosures vs. Short Sale

2009-10-20T13:12:00.000-07:00

If you have been struggling to make mortgage payments for the last several months but things have been sliding downhill at an increasing rate, you may be faced with a foreclosure. Foreclosures can greatly affect your credit score and make it difficult for you to buy another home within the next few years. Like a bankruptcy, a foreclosure will be visible on your credit report for a very long time.

If you are faced with losing your home, someone may have recommended a short sale to you, which is different than a foreclosure in several ways.

Foreclosure
Foreclosure means the lender receives ownership of the property. You do not pass Go, you do not collect $200. Once the bank has control of your property, it will be sold at auction to the highest bidder, or sold at the lender's discretion. However, you may still be held liable for any difference between the amount you owed and the amount the new purchaser paid for the house. This is known as a deficiency ruling.

Short Sale
In a short sale, you still own the house, and the lender agrees to accept less than the amount owed on the loan. Contrary to the name, a short sale may take months to complete, and your lender may continue to send negative marks against your credit score if you do not continue to pay your monthly mortgage during this time. Although there is no deficiency ruling against a house sold by short sale, the IRS may still count the difference between your outstanding loan and the short sale amount as taxable income.

To find out more about foreclosure law, please contact Lusk, Drasites, Tolisano & Smith, P.A., serving the Fort Myers, Lee County, and Cape Coral areas in Florida.

Facing Foreclosure

2009-09-30T07:11:00.000-07:00

If you own your own home, one of your greatest fears right now may be losing your home to foreclosure. The high unemployment rate, dropping salaries and increased taxes are conspiring to create the highest percentage of foreclosure filings within the last few months since the 1980's. If you are facing foreclosure on your house, you are probably looking for the answers to dozens of questions about foreclosure.

Whether you are facing the possibility of foreclosure or if your house is already being foreclosed on, you should be aware that many homes can be saved from foreclosure. Whether by short sale or by making payment arrangements, you may not have to accept a foreclosure on your credit report.

If you are in the Fort Myers, Cape Coral or Lee County areas, resigned to your home being foreclosed on, you should be aware that Florida allows for deficiency judgments against homeowners whose homes have been foreclosed on. This means that, if your home sells at auction for less than the amount you still owe on your loan, you may be held liable by the courts to pay the difference. The best way to avoid a deficiency judgment is to get started immediately by talking to the experienced real estate attorneys here at Lusk, Drasites, Tolisano & Smith, P.A., to find out what you can do to be free of debt on a house you no longer own.

To find the answers to your foreclosure questions today, please contact us and get started on the path to protecting your future.

New Motorcycle Laws Say “Safety, Not Style”

2009-08-31T12:16:00.000-07:00

According to the Florida Department of Highway Safety and Motor Vehicles, two is better than one, and not only better, but required. As of October 1, 2008, all motorcycles and mopeds had to maintain two wheels on the ground at all times while being driven. Wheelies are a known cause of injury and death for motorcyclists. One young man who had returned from military service was killed when, while trying to pop a wheelie, he flipped his bike. In light of this and other incidents, the new law is hardly surprising and violators will receive a ticket costing them $2,000.

This law follows the one that took effect the previous July which requires all motorcyclists to complete a motorcycle safety course and receive motorcycle endorsement on their licenses by passing a motorcycle knowledge and skills test.

These new laws bear the safety of the motorcyclist in mind and lawmakers hope to prevent injuries and deaths by enforcing them. But thousands of motorcycle accidents occur every year because of other causes, often the negligence of other drivers. With those accidents, personal injury or death often occur.

If you or your loved one has been injured or killed in a motorcycle accident, please contact Lusk, Drasites, Tolisano & Smith, P.A., serving Cape Coral, Florida, and surrounding areas, and find out how we can help.

How Brain Injuries Occur

2009-07-31T15:29:00.000-07:00

The National Institutes of Health reports that fifty percent of all traumatic brain injuries (TBI) occur due to direct trauma from vehicle collisions. Approximately twenty percent occur indirectly, from violence including gunshot wounds or child abuse. For older Americans, falls are the leading cause of TBI. Millions of Americans live with TBI-associated disabilities. TBI is a leading cause of death for Americans under age 45, and occurs every 15 seconds in the United States, potentially causing a loss of brain function that can affect cognitive and memory tasks, information processing, and the performance of motor and coordination functions.

Our highly complex brains are soft and float inside the skull, cushioned by cerebrospinal fluid that protects the brain from everyday bumps. A sudden and violent blow to the head can force the soft brain against the hard skull, tearing nerve fibers and sometimes causing bleeding within the brain. In fact, research from Sandia National Laboratories proves that TBI can occur within one millisecond after the head receives a violent blow.

Types of Traumatic Brain Damage

A contusion, or bruising of the cerebral cortex, affects the brain’s frontal and temporal lobes, responsible for long-term memory, speech and hearing.

Whiplash can cause severe stretching of the axons (nerves within the central nervous system), injuring the brain’s deep white matter (the arbor vitae).

Isotropic stress occurs from fast-moving pressure waves that occur during blasts and explosions. Soldiers are at high risk for this type of injury.
Do I Have a Brain Injury?

Common signs and symptoms of TBI include:
• Concussion
• Loss of consciousness
• Pupils are Equal and Reactive to Light (PERL)
• Focal neurologic signs
• Seizures
• Amnesia
• Encephalopathy

The experienced traumatic brain injury attorneys at Lusk, Drasites, Tolisano & Smith, P.A. in Cape Coral and Fort Myers, Florida have the resources and expertise to help you manage traumatic brain injury. Please contact us today to schedule your free initial consultation.

Brain Injury Symptoms

2009-06-29T15:53:00.000-07:00

Each year in America, millions of people suffer traumatic brain injury (TBI) after a sudden and severe blow to the head.

Auto accidents are the leading reason for TBI. Even at low speeds, a blow to the head can bruise, tear and swell the brain, causing temporary or permanent injury to the more than one hundred billion brain cells that oversee the complex mechanisms controlling the body.

Beyond bruising, tearing and swelling, common symptoms of mild to severe TBI include:

Brief unconsciousness, seizures or longer-term coma
Brief or prolonged amnesia
Short-term or chronic headache
Confusion, mood changes
Dizziness, lack of coordination
Sensory or memory difficulties
Nausea, vomiting
Overwhelming sleepiness
Pupil dilation
Slurred speech
Weakness, numbness in arms, legs, hands

Young children with TBI may exhibit restlessness, disrupted sleep or school performance, refusal to eat, and general apathy.

If you or a loved one has experienced traumatic brain injury in Florida, get knowledgeable help from the legal experts at Lusk, Drasites, Tolisano & Smith, P.A in Cape Coral and Fort Meyers, Florida. Please contact us today to schedule a free initial consultation.

Someone Just Ran A Red Light & Crushed Your Car

2009-06-22T07:45:00.000-07:00

Written by: Attorney Mark P. Smith, Board Certified Civil Trial Attorney,
Lusk, Drasites, Tolisano & Smith P.A.

You're driving along, concentrating on the road, when someone who's is not paying attention runs a red light and rams into your beautiful almost paid for car. What should you do?
1. Don't lose your cool. There is no point in getting into an argument or worse with the careless driver. If possible you should call the police or have someone do it for you. Do not simply exchange insurance information and drive away since many times the other driver will deny later he/she was the one who caused the accident.
2. If you have any doubt whatsoever that you are injured, go in the ambulance or at the very least, have someone drive you to the hospital shortly after the accident. If you are worried about the cost, your own auto insurance will pay for at least 80% of the bill and your health insurance will pay the other 20%.
3. The next step is to properly document both your property and possible personal injury claims. Take a picture of the damage to your car and obtain estimates. Also review your insurance policy to determine what type of coverage you have.
If you are injured, you want to hire Lusk, Drasites, Tolisano & Smith soon after the accident because the insurance company may try to reduce any damages they are responsible for and if you are not represented by a lawyer they simply will not consider your claim as serious as if you are represented. We also know the area and the local doctors who can treat you best.
There are many factors involved in an injury such as unpaid bills, future medical expenses, past and future wage loss, pain and suffering damages, as well as how Florida law applies to all of these. Remember, it just makes sense to have an expert and professionals who can aid you in these personal injury matters at Lusk, Drasites, Tolisano and Smith P.A.

Welcome to our blog

2009-06-08T11:13:00.000-07:00

Welcome to our blog

Why Auto Accidents Happen

2009-05-31T13:39:00.000-07:00

In 2007, auto accidents claimed the lives of more than seven hundred people every day. Many of those deaths were preventable, particularly because driving under the influence of drugs and alcohol injured and killed millions of drivers, passengers, bicyclists, pedestrians and bystanders.

Driver inattention also runs rampant. Careless drivers ignore traffic signs and signals, chat on cell phones, apply makeup, change clothes, eat, read and even send text messages while driving recklessly endangering the lives of others. Improper passing, driving on the wrong side of the road and stopping unexpectedly in moving traffic also causes millions of auto accidents each year.

Young or new drivers are particularly at risk. Driver inexperience, driving too fast for road conditions, neglecting to wear a seat belt, driving when overly fatigued, drinking and driving and chatting with passengers injures and kills young drivers and others each year.

Road rage accidents also create a chaotic driving environment that leads to loss of life.

Has the mistake or recklessness of another driver caused injury or death to you or a loved one? The friendly and knowledgeable Florida auto accident attorneys at Lusk, Drasites, Tolisano & Smith, P.A. in Cape Coral and Fort Myers, Florida can help you recover damages for medical bills, lost wages and other expenses. Please contact us to schedule a free personal injury consultation.

Can I avoid having any mortgage on my house with the "produce the note" defense?

2009-05-11T09:42:00.000-07:00

Written by: Attorney, Matthew Toll at Lusk, Drasites, Tolisano & Smith P.A.

99.999% of the time, the answer is no. There was a story that was shown on a number of news stations (and is all over the internet) telling people how to "beat" the mortgage company. The defense being presented is to force the mortgagee to "produce the note" and the story implies that if somehow the promissory note that was signed at closing cannot be found, the customer who borrowed the money from the bank is "off the hook".

This is very misleading. If you borrowed money to buy a house and put up the house as collateral for the loan, you will lose the house if you don't pay back the loan. That's the law, and it is remarkably simple. People sometimes seem to lack common sense. NOTHING is free in this world, and certainly not a house.

If the original note cannot be found, the Court can still enforce a "lost note". All that a mortgagee needs to do is file a "lost note affidavit" and add a count to the lawsuit to re establish a lost note.

It is true that there was an explosion the number of mortgage backed securities being offered by investment bankers between 2002 and 2007. Basically, instead of holding onto mortgages, banks re sold them so they could loan out more money and make more fees by processing more loans.

The mortgages were "packaged together" and then sold to investors. These "mortgage backed securities" were marketed as an extremely safe investments, because up until that time, default on residential home loans was very rare. Besides, even if one or two of the borrowers defaulted, the logic was the mortgage back security was made up of hundreds or even thousands of loans so the return on investment would barely be affected.

To make matters worse, some banks would "slice off" a segment of a number of different mortgage backed securities (each "slice" was known as a "tranche") and create a new mortgage backed security called a "collateralized debt obligation" ("CDO"). These CDO's were put into a trust, and a trustee, usually a bank, would be put in charge. The trustee would be responsible to foreclosing against delinquent borrowers and marketing the trust to investors. Trustees such as the Bank of New York and Deutche Bank are very common.

Unfortunately, more than "1 or 2" of the borrowers defaulted and these securities became anything but safe. As a result of the transfer of the mortgage from the original lender to the creator of the mortgage backed security and then to trustee of the CDO, it is often hard for the trustee to prove that it owns the mortgage in question.

The "produce the note" defense is exploited by this office by forcing the mortgagee to prove that it has "standing" to file the suit. In other words, we force the mortgagee to prove that it actually owns the mortgage in question.

However, we typically fo not file a "request for production" demanding that the opposing attorney physically "produce the note". All that filing a request for production usually will accomplish is to increase attorneys fees and encourage the filing of a lost note affidavit by the opposing attorney sooner.

If you hire a law firm to represent your interests and you have information that you believe would benefit your lawyer, you should always communicate with your lawyer. We may be the ones representing the clients, but the clients are the ones personally experiencing the trauma of litigation. However, we do ask that you defer to the discretion of your counsel on matters of litigation strategy. We will always explain why a particular path has been chosen for our clients.

Auto Accident Death Statistics

2009-04-29T15:23:00.000-07:00

Florida’s Department of Highway Safety and Motor Vehicles reports traffic statistics each year. On paper, these statistics are nothing but numbers. However, every number represents an adult, child or family affected by an auto accident that, in many cases, was likely preventable.

In 2007, 256,206 traffic crashes occurred on Florida roadways. On average, this number represents 702 auto accidents every day. The 2007 death toll from auto accidents reached 3,221 and 212,149 people were injured.

Approximately 17,000 auto accidents were drug and/or alcohol related. Along with the drivers and passengers of vehicles involved in these accidents, 530 pedestrians were also killed, and 7,529 pedestrians were injured. Interestingly, many injured or killed pedestrians were under the influence of alcohol or drugs or harmed by an intoxicated driver. More than 9,000 motorcyclists and 4,400 bicyclists were injured or killed.

Across the nation in 2007, the Fatality Analysis Reporting System, (FARS), reports the number of individuals killed in auto accidents stands at 37,248. Another 41,059 were killed as pedestrians or bicyclist or bystanders. FARS is a National Highway Traffic Safety Administration (NHTSA) system designed to measure highway safety, suggest improved safety solutions, and evaluate motor vehicle and highway safety standards and programs.

If an auto accident happens to you or a loved one, the experienced auto accident attorneys at Lusk, Drasites, Tolisano & Smith, P.A. in Cape Coral and Fort Myers, Florida can help you fight for the justice you deserve. Please contact us today to schedule your free consultation.

Auto Accident? What to Do First and Next

2009-03-24T13:52:00.000-07:00

Injured in an auto accident caused by someone else’s negligence? You may be able to bring a lawsuit to recover damages. But before you call your insurance company, call your attorney. Attempting to deal with your insurance company alone, even with the most honest of intentions, can compromise your rights and affect your ability to recover compensation for medical bills, lost wages, vehicle damage, disability and more. In Florida, the auto accident attorneys to call are Lusk, Drasites, Tolisano & Smith, P.A. We understand Florida personal injury law and will work closely with you to fully pursue your legal rights.

If you are involved in an accident, stay calm and follow these tips:

If anyone is injured call 911 immediately
File a report with the police, even if the accident is minor
Talk only to the police at the scene
Write down the names, addresses, and phone numbers of drivers and witnesses. Include a description of the vehicles involved, license plate numbers and vehicle identification numbers
Exchange insurance information with other involved drivers
Contact Lusk, Drasites, Tolisano & Smith, P.A.
Contact your insurance company

The best way to decrease your risk of an auto accident is to remain aware while driving. Know who is behind you and in front of you. Keep your eye on side roads for vehicles that may dart out into traffic. Be alert for traffic signs and signals. Leave plenty of time to get where you are going, and leave plenty of room between your car and those around you. Avoid dangerous habits while driving, such as applying makeup or shaving, talking on your cell phone or text messaging, eating and reading.

At Lusk, Drasites, Tolisano & Smith, P.A. in Cape Coral and Fort Myers, Florida, we routinely represent persons injured in auto accidents. Our commitment to achieving maximum results, and our prompt attention to investigating and resolving your case protects your legal rights before important physical evidence and witnesses are lost. Please contact us today to schedule your free auto accident injury consultation.

As a Subcontractor, How can I assure payment?

2009-03-11T07:11:00.000-07:00

Written by: Attorney, Matthew Toll at Lusk, Drasites, Tolisano & Smith P.A.

Frankly, with today's housing market, the only way to obtain 100% complete assurance of payment in full is to require the General Contractor or ultimate customer pay you before you begin your work. However, since this is rarely possible in today's buyer's market, there are still many things that can and should be done to protect yourself against the risk of non-payment.
Under Florida lien law, you are given substantial protection, so long as you follow the right steps. Although it may seem complicated, once you become used to protecting yourself, you'll wonder why you failed to do so in the past. As a subcontractor, the only time you should ever find yourself without payment is when you do work on a home that is ultimately foreclosed upon and where the property is worth less than mortgagees with a higher priority than you.
First and foremost, before you ever begin work, always file a "Notice to Owner". The purpose for filing a "Notice to Owner" whenever you perform services that improve real property is to put the owner of real property on notice that you or your company, as the subcontractor (or sub-subcontractor) has a lien on the owner's real property for the services, labor or materials you provide. As such, if you don't receive payment for such services (even if the property owner paid the contractor), you can foreclose, thus providing security to satisfy a future judgment if you need to bring suit to be paid.
In order to perfect your lien, you must first have the Notice to Owner recorded in the public records in the county that the real property is located. The Notice to Owner must include your name and address, a description sufficient for identification of the real property and the nature of the services you will provide.
After you have filled it out, you must record the "Notice to Owner" and, after filing same, you will receive the "recorded" Notice back. After you have received the recorded Notice to Owner, you must serve a copy of it the Contractor and Owner. If you are a "material man" to a sub-contractor, you must serve the Notice to Owner on the contractor, subcontractor and Owner. The Notice must be served before commencing the work, or no later than 45 days after commencing the work, but in any event before the date of the Owner's disbursement of the final payment after the contractor has furnished the Contractor's Final Affidavit.
Additionally, the owner may designate in his or her Notice of Commencement a person (in addition to himself or herself) to receive a copy of the Notice to Owner. Therefore, I advise you to check the Notice of Commencement, which can be located in the public records, to see if the Owner did designate a second party before serving a Notice to Owner. A failure to provide the Notice to Owner to this second party should not invalidate an otherwise valid lien, but the more parties that are aware of your potential lien, the more likely it is that you will be paid for your services. In order to "serve" a Notice to Owner, you can have said notice delivered to the party or you can send it certified mail, return receipt requested. Please review Florida Statute § 713.18 for information on alternate methods of service.
Okay, let's say you've done everything right. You required a deposit. You filed and served a "Notice to Owner" upon everyone you were supposed to serve. You've done the job competently and on a timely basis. However, at the end of the job, you don't receive payment. Your calls and letters requesting payment are ignored. Now what?
The next step is a "Claim of Lien" pursuant to Florida Statute § 713.08. A "Claim of Lien" needs to be recorded and served in the unfortunate event you have not been paid for your work. The "Claim of Lien" can be recorded at any time during the progress of the work or thereafter, but no later than 90 days after you have finished the work. The "Claim of Lien" must be recorded and served on the owner. It must be served on the owner before recording, contemporaneously with recording, or within 15 days after recording. The service and the method of recoding is the same as stated above.
The "Claim of Lien" is good for one year from the date of recording and if you are not properly paid within that time period, you must file a suit prior to the one year expiration date in order to seek payment from the owner.
Please be advised that the foregoing does not constitute legal advice and this office assumes no liability associated with any one's reliance on same. The construction lien laws are constantly in a state of flux, and, even in the absence of any change in the law, your case may fall within an exception to any of the rules outlined above. If you are a subcontractor and you feel you have a claim for unpaid work, please schedule a consultation with one of our associates today at Lusk, Drasites, Tolisano & Smith P.A.

Know Your Legal Rights during a Foreclosure

2009-03-11T06:58:00.000-07:00

Written by: Attorney, J. Rex Powell, at Lusk, Drasites, Tolisano & Smith P.A.

Losing your home to a foreclosure is every home owner's nightmare. Unfortunately, that nightmare has become an ever-present reality for many members of the Southwest Florida community. Lee County is one of the foreclosure capitals of the United States. Displaced homeowners and "for sale" signs are everywhere.
Foreclosure is a judicial proceeding in Florida. Banks like to pretend that this is not the case, and unfortunately, our judicial system sometimes pretends that this is not the case. Procedures are not followed, lawyers prosecuting foreclosures don't do their job, and unfortunately, certain Judicial Circuits institute constitutionally questionable devices such as "rocket dockets."
Notwithstanding the questionable practices currently being practiced by banks and their foreclosure attorneys, homeowners in this state have rights. Homeowners have the right to due process, they have the right to employ an attorney to defend them in court, and most importantly, they have the right to put the bank and its attorneys to its proof.
You see, the mortgage industry no longer resembles what we grew up with. The last decade has been witness to some of the most irresponsible lending practices that this country has ever seen. Banks no longer make long term commitments when they lend to a mortgagor. Instead, banks lend money to a home purchaser, then immediately sell the loan off. Your home loan then travels a very complicated and mystifying path to its ultimate home. At the end of the day, many mortgage loans end up "owned" by thousands of individual investors.
What does this mean to you, the homeowner facing foreclosure? It means that the entity threatening foreclosure, or perhaps suing you, may not even be the owner of your mortgage. It means that your mortgage payments may not have been properly paid to the actual owner(s) of your mortgage. Ultimately, it means that you should hire an attorney who can help you unravel the confusion, and traverse the difficult path of foreclosure.
The attorneys at Lusk, Drasites, Tolisano & Smith, P.A. are experts in real estate litigation. Call us today, and set up an appointment to speak with one of our attorneys.

Can the court modify child support from another state, but not alimony?

2009-03-06T13:40:00.000-08:00

Written by: Attorney, Mellany Marquez- Kelly, at Lusk, Drasites, Tolisano & Smith P.A.

Construing the Uniform Interstate Family Support Act, just recently, I drafted a memorandum of law regarding the Uniform Interstate Family Support Act, Florida Statute, Chapter 88. The information I came across has prompted some of my clients to ask, “Why can the court modify child support from another state, but not alimony?”. I hope this insert from my memorandum sheds some light on the subject.

The Uniform Interstate Family Support Act (UIFSA), Florida Statute, Chapter 88, makes a clear distinction between the terms, “support order,” “child support order,” and “spousal support order.” Spalding v. Spalding, 886 So. 2d 1075; 2004 Fla. App. LEXIS 17806.Specifically Florida Statute § 88.2051 (1), provides that a tribunal of the state issuing the support order, consistent with the law of the state, has “continuing exclusive jurisdiction”over a “child support”order as long as the state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued. Id. 1077. Also, Florida Statute § 88.2051 (2-4), explains the procedures to be complied with while modifying a child support order. However, under section(6) of the afore mentioned statute, a court of this state may not modify a “spousal support order” issued by a tribunal of another state having“continuing exclusive jurisdiction” over that order throughout the existence of the support obligation. See § 88.2051 (6), Fla. Stat. (2003); see also Vinnik v. Vinnik, 831 So. 2d 1271(Fla. 4th DCA 2002), cited to in Spalding v. Spalding, 886 So. 2d 1077; 2004 Fla. App.LEXIS 17806. Similarly, under section 88.2061(3), a court of Florida that lacks continuing exclusive jurisdiction over a spousal support order may enforce out-of-state spousal support orders, but may not serve as a responding tribunal to modify a spousal support order of another.

Traumatic Brain Injury

2009-02-12T08:05:00.000-08:00

Traumatic brain injury, or TBI, occurs when the brain receives sudden trauma, such as from a violent blow to the head or a gunshot wound. Millions of Americans suffer from temporary or permanent effects of TBI. Falls, auto accidents and assaults lead the list of causes.

Depending on the extent of brain damage, TBI symptoms may be mild to severe and include:

Unconsciousness or concussion
Headache, nausea, vomiting
Confusion and fatigue
Dizziness or lightheadedness
Blurred vision, pupil dilation
Seizures
Cognitive difficulties
Mood changes
Weakness, numbness, lack of coordination
Coma and death

Immediate medical attention, including surgery, may be required to prevent further brain damage after traumatic injury. Additionally, many TBI patients require rehabilitation and other treatments to recover from their injuries. In some cases, the effects of TBI are permanently disabling, impacting entire families for a lifetime.

In Cape Coral and Fort Meyers, Florida, the experienced traumatic brain injury attorneys
at Lusk, Drasites, Tolisano & Smith, P.A. understand traumatic brain injury and its many effects on the life of the injured person and the family. We can help you recover damages for medical expenses, lost wages, pain and suffering, disability and more. Please contact us today to schedule your free consultation.

Auto Accidents

2009-01-26T14:33:00.000-08:00

Florida auto accidents injure, disable, and kill millions of people every year due to:

Roadway congestion
Construction
Speeding and reckless or careless driving
Alcohol or drug-impaired driving
Driver inattentiveness

Victims of auto accidents may find themselves managing a painful physical and emotional recovery in addition to costs associated with vehicle damage, lost wages, and medical bills. Consulting with an experienced Florida auto accident attorney can be extremely helpful during this difficult time.

Whiplash and back injuries are common auto accident-related injuries. The effects of both may be immediately apparent or may not appear for several days and can include headaches, neck, back and jaw pain, numbness and weakness, cognitive problems, fatigue and dizziness. Auto accident injuries can cause a lifetime of pain, discomfort, reduced mobility, permanent paralysis and death. If you are the victim of an auto accident, seek medical attention immediately, even if you “feel fine.”

When an auto accident happens, you may require medical and legal help to recover and get back to the usual activities of life. Protecting your rights at this crucial time can help you recover more quickly. To learn more about how you may be entitled to compensation for medical bills, lost wages, and pain and suffering, please contact the experienced auto accident attorneys at Lusk, Drasites, Tolisano & Smith, P.A. in Cape Coral, Florida.