Archive for the ‘CPLS, P.A. NEWS’ Category

The Regulation of State Banks

Monday, February 25th, 2013

Is a state law that is preempted from enforcement against national banks also preempted from enforcement against out-of-State, State banks? That was the question in Baptista v. PNC Bank, 91 So. 3d 230 (Fla. 5th DCA 2012).

RBC Bank was a North Carolina bank. One of its account holders wrote a check to Ms. Baptista.  Ms. Baptista went to one of RBC’s branches in Florida, and presented the check for payment. Ms. Baptista did not have an account at RBC. The teller charged Ms. Baptista a $5.00 check-cashing fee.

However, Florida Statutes, section 655.85 provides that “an institution may not settle any check drawn on it otherwise than at par.” Accordingly, we filed a class action suit against RBC. After some preliminary discovery, RBC moved for summary judgment. It claimed that because section 655.85 is preempted from enforcement against national banks, it was also preempted from enforcement against out-of-State State banks, pursuant to title 12 U.S.C. § 1831a(j)(1). Section 1831a(j)(1) provides in part: 

(1)Application of host State law. The laws of a host State, including laws regarding community reinvestment, consumer protection, fair lending, and establishment of intrastate branches, shall apply to any branch in the host State of an out-of-State State bank to the same extent as such State laws apply to a branch in the host State of an out-of-State national bank.

At the time of RBC’s motion, every court that had addressed the issue had interpreted section 1831 to mean that statutes that are preempted from enforcement against national banks are also preempted from enforcement against out-of-State State banks. The trial court granted RBC’s motion for summary judgment, and we appealed.

On appeal, we pointed out that section 1831 does not refer to the “enforceability” of State laws; only to the “applicability” of State laws. We argued that although section 655.85 is “unenforceable” against national banks it is “applicable” to them. We noted that section 655.85 is only preempted from enforcement against national banks because enforcement against national banks would conflict with 12 C.F.R. § 7.4002. However, enforcement of section 655.85 against State banks would not conflict with section 7.4002, because section 7.4002 does not apply to State banks. We argued that section 1831 only prevents States from discriminating against out-of-State State banks. In other words, if a State law provides that it does not apply to national banks, section 1831 prevents that law from applying to out-of-State State banks. Section 655.85 does not discriminate against out-of-State State banks because section 655.85 applies to all banks.

RBC argued that section 1831 was enacted to place State banks on par with national banks, and to preserve competitive equality between national banks and State banks. It said that Congress’ intent was to remove incentives for banks to charter at the federal level rather than the State level, and vice-versa, in order to insure the health and stability of our dual banking system. It argued that having to adjust to bank policies and procedures on a State-by-State basis, and having to stay current on the changes in each State’s laws would be virtually impossible for State banks, and that they would be forced to either abandon banking in foreign States or increase fees to depositors.

The court said that RBC’s arguments contorted the express language of section 1831. It said that the statute simply prohibits States from discriminating against out-of-State State banks. It concluded that section 1831 was not applicable because section 655.85 applies to all banks. Accordingly, the court reversed, and remanded the case for further proceedings.

RBC subsequently filed a petition for a writ of certiorari with the Supreme Court of the United States, but the petition was denied.

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Two Questions You Should Ask Yourself and your Attorney about Social Security Disability

Friday, March 23rd, 2012

Do I really want to be on Social Security Disability for the rest of my life? This actually is the one question you won’t have to ask yourself if you are dealing with a disability. When you get to the point you can’t work to pay your bills, you can’t cook proper meals for yourself, or you have trouble taking care of personal needs like using the toilet or bathing without assistance, that question will already be answered. But there is hope for those who have come to terms with the inevitable. Remember the deduction on every paycheck you’ve ever received labeled FICA tax? This is money deducted from every paycheck you receive, to help you if you become disabled. So you pay into this FICA tax system every paycheck and when you retire or get disabled, you get it all back like a savings account. Sounds simple right?  Well it is a little more complicated than that. And ask anyone who has been through the process of applying and getting denial multiple times by the Social Security Administration, it is not fun.

 The first question you should ask yourself is, “Have I worked enough to be eligible for Social Security Disability Benefits?” If you have worked most of your life (on the books) and are middle aged or above you, will probably be fine. But if you don’t fall in that category here are some guidelines to consider. You need to have 6 credits earned in the 3 year period immediately preceding your disability if you are under the age of 24. From ages 24- 31, you need credit for 3 years of work out of the 6 years immediately preceding your disability. Anyone 31 to 42 years of age will need a total of 20 credits. And every 2 years after that the credits needed increase by 2. If you are confused about how many credits you would need to be eligible, than you are right along with most Americans today. But if you ask your attorney this question, she will be able to let you know whether you qualify or not after you answer a few questions.

 The next question you need to ask yourself is, “How are credits for Social Security Disability earned?” We know Social Security takes money out of every pay check but how does this money transform into credits? Credits are based on the amount of your earnings. “In 2011, you receive one credit for each $1,120 of earnings, up to the maximum of four credits per year. Each year the amount of earnings needed for credits goes up slightly as average earnings levels increase. The credits you earn remain on your Social Security record even if you change jobs or have no earnings for a while.” (Source: Socialsecurity.gov) 

 Now that you have this information you can decide whether or not you are eligible. So you can apply and just sit back to wait for your monthly checks to start rolling in. Right? Wrong. Most Orlando, Florida, cases take an average processing time of 502 days. (Source: socialsecuritydisability.tv/state-socialsecurity-disability/florida)  And this is just after a hearing has been requested. At the Initial Application and Reconsideration levels, each case can take as long as 7 months to  be processed. The whole process takes about 3 years if done correctly; it can be longer if not.

 The question you need to ask your attorney is: “Are you qualified to do it correctly?”

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CPLS, P.A. launches its PREFERRED CLIENT PROGRAM to help clients manage costs

Friday, November 27th, 2009

Our PREFERRED CLIENT PROGRAM is an alternative to traditional billing; it is designed to help our clients manage their costs without compromising the legal services they receive.   Enrollment in the program requires an annual commitment and an automatic payment commitment (credit card, debit card, ACH debit).  The following are packages available for individuals and businesses:

 A. Package A – Individuals – $50.00 per month (Bank Draft or Credit Card Authorization Required)

 Phone consultations on unlimited matters.  As a Client, you can consult with a designated lawyer at CPLS, P.A. by phone during regular business hours on any matter, for up to 30 minutes per day. 

Monthly In-Office Consults.  As a Client, you are entitled to one in-office consult per month on any matter during regular business hours, for up to 30 minutes each.

Reduced Attorneys Fees on Flat Fees & Hourly Fees.  As a Client, if you retain CPLS, P.A. to represent you on any matter on an hourly fee or flat fee basis, you will receive a 10% discount on all attorneys fees charged and billed

Reduced Attorneys Fees on Contingency Fees Cases.  As a Client, you will not be charged more than 30% of any recovery for attorneys fees on any case in which CPLS, P.A. represents you on a contingency  fee basis.

Reduced Fees on Estate Planning Documents. As a client, if you retain CPLS, P.A. to prepare any estate planning documents, you will receive an additional 15% discount on the fees charged and billed.

Jail Visit.  As a client, you are entitled to one free in jail visit, if arrested and held in any of the following counties in Florida: Orange, Osceola, Seminole, or Lake.

Demand Letter.  As a Client, you are entitled to receive two demand letter per year, non cumulative, free of charge, after 3 months of membership.

 B. Package B –Family Members – $100.00 per month (Bank Draft or Credit Card Authorization Required) - As a Client, you and your immediate family members (your children and your spouse) are entitled to all benefits of Package A above, so long as there is no conflict of interest with any of CPLS, P.A.’s other  clients, including you.

 C. Package C – Small Businesses Value Program – $250.00 per month (Bank Draft or Credit Card Authorization Required) – As a client, your business is entitled to receive $400.00 of CPLS, P.A.’s timekeepers’ time per month, non cumulative.  Any time beyond the time will be billed at CPLS, P.A.’s normal hourly rates.

 D. Package D – Small Businesses Added Value Program $500.00 per month (Bank Draft or Credit Card Authorization Required) – As a client, your business is entitled to receive $900.00 of CPLS, P.A.’s timekeepers’ time per month, non cumulative.  Any time beyond this time will be billed at CPLS, P.A.’s normal hourly rates.

 E. Package E – Medium-Sized Businesses Value Program $750.00 per month (Bank Draft or Credit Card Authorization Required) – As a client, your business is entitled to receive $1,500.00 of CPLS, P.A.’s timekeepers’ time per month, non cumulative.  Any time beyond this time will be billed at CPLS, P.A.’s normal hourly rates.

 F. Package F – Medium-Sized Businesses Added Value Program $1,000.00 per month (Bank Draft or Credit Card Authorization Required) – As a client, your business is entitled to receive the $2,000.00 of CPLS, P.A.’s timekeepers’ time per month, non cumulative.  Any time beyond this time will be billed at CPLS, P.A.’s normal hourly rates for timekeepers.

FOR MORE INFORMAITON ABOUT OUR PREFERRED CLIENT PROGRAM, SEND REQEUST TO INFO@CPLSPA.COM

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Is your Bank charging your employees fees for cashing your payroll checks without your knowledge?

Sunday, November 22nd, 2009

Is your bank charging your employees to cash their payroll checks. Our firm discovered that Bank of America and other banks are charging between $5.00 to $10.00 to cash payroll checks when your employees who are not customers of the bank present their payroll checks to the bank in person. To say the least, this practice was very disturbing to us, especially since it also affects our employees. Our investigation into this practice revealed that the banks have been engaging in this practice for almost 10 years and that this fee is a major revenue source for large national banks and mid sized regional banks.

According to the Consumers Union Southwest Regional Office (http://www.consumersunion.org/finance/noncustsw1001.htm): “Those most likely to be affected by non-customer check cashing fees are individuals often referred to as the unbanked, individuals without their own bank account, who go to banks to cash their paychecks. A study of the Survey of Consumer Finances found that more than half of families without checking accounts are nonwhite or Hispanic, and 85 percent have incomes of less than $25,000. The rising costs of having a bank account combined with the lack of access to a local bank and branch offices have made keeping an open bank account difficult for some families… In an effort to increase profits, banks are looking for other revenue sources. In addition to directing resources into check-cashing operations, banks are tapping into a new market of low income and minority consumers – this time directly – by charging check-cashing fees, even for checks drawn against their own customer’s accounts. Mark Ferrulo, a public interest advocate for Florida PIRG, noted, ‘that used to be part of the package. This fee really just serves to add to the income stream. ‘ It’s almost pure profit.”

Our firm was so outraged with this practice that we sued Bank of America on bahelf of employees in Florida who have been charged for cashing their payroll checks. Not suprisingly, Bank of America vigorously defended its practice and relied upon letters from the Office of the Comptroller of Currency (OCC) addressed to Bank of America for its defense. In support, they argue that your empoyees are the bank’s non relationship “customers” and as “customers” they can charge them the fee. When we reviewed the letters from the OCC to the bank, we noted that, althought the OCC is required to provide notice and an opportunity for the public to comment on the opinion letters, it did not; instead, it relied soley on the information provided by the bank. Suprisingly, in the face of the letter the OCC acknowledged that the bank reqeusted that the informatin it provided be kept confidential and the OCC has obliged. So, there is no way of telling whether or not the information relied upon is enough to provide a sufficient and valid basis for the OCC’s opinion that your employees are customers of the bank.

If you or your emplyees are affected by this unfair bank practice and would like to find out more please feel free to email Tee Persad at attorneypersad@cplspa.com.

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