Choice of Forum – Deciding where to sue American Airlines, in Jamaica or the United States

January 19th, 2010

In December 2009 many passengers were injured in an American Airlines crash at the airport in Kingston, Jamaica. Liability, or whether or not the crash was caused by pilot error, mechanical failure, or any other reason is likely to be one of the main issues in any suit brought by victims of the crash before the amount of damages suffered by the victims will be considered. However, before the issues of liability or damages may be considered, any court in which the claim is filed may first have to deal with the issue of jurisdiction and venue. Is the suit filed in the right country, right state and in the right court?

Issues of jurisdiction and choice of forum depends on many factors. However, the primary factors are easily identifiable and can and should be considered by the injured and their attorneys at the early stages of the case. Jurisdiction in the United States is divided into two areas, personal jurisdiction and subject matter jurisdiction. Personal jurisdiction is the court’s authority over the parties in a case, whereas subject matter jurisdiction is the court’s jurisdiction to hear the subject issues of the case. Victims of the crash in Jamaica can either bring their case in the courts in Jamaica or the United States and either court system will have jurisdiction over them as plaintiffs, and over American Airlines as it does business in both countries and can expect to be held accountable in either place.

Subject matter jurisdiction is a bit trickier. While there may be little doubt that the Jamaican courts have subject matter jurisdiction over any claims that the victims can bring against American Airlines, some victims may want to file a claim in the United States for many reasons. For example, the court system in the United States may process the case faster than the Jamaican courts, the jurisprudence may be more settled and easier to navigate in the United States, and the likely to resolve the case may be greater in the United States. Others may choose to file their claim in Jamaica for other reasons. Before this decision is made, a thorough analysis of the benefits of each system should be made by the attorney and explained in clear easy to understand language to the victims so that an informed decision can be made by the victims.

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Jamaican citizens investing in the United States of America…Living the American Dream

January 19th, 2010

The United States of America is a very popular destination for Jamaican citizens. Many of us see the United States as the land of opportunities. We all have the idea of living the American Dream. In 1931, James Truslow Adams was the first to express the American Dream as the “dream of a land in which life should be better, richer and fuller for every man, with opportunity for each according to ability or achievement.” According to the Dream, coming to the United States includes the promise of prosperity for the people willing to take the giant leap.

While I truly believe that everything is possible in this country, investing in the United States also means complying with a strict procedure with various authorities. It is very important to apply for the appropriate visa before coming to the United States of America.

There is a wide range of non-immigrant visas frequently used for global mobility assignments. The E-visa category is the most commonly used by Jamaican investors. The E-visa category, also known as Investment visas is designed for business owners, managers, and employees who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the United States and Jamaica or that represents a major investment in the United States.

E-visa status is available to individual investors with a majority ownership interest, as well as to the employees coming to work in either a supervisory role or a position involving skills essentials to the venture.

There are three basics elements required for the E-visa category to be used.

(1) A treaty must exist between the United States and the Country. Such a treaty exists between Jamaica and the United States conferring E-visa to Jamaican Investors.

(2) At least 50% ownership or control of the investing or trading company must be held by nationals of Jamaica.

(3) Jamaican citizenship must be held by each employee or principal of the company who seeks E-visa status under the treaty.
If the E-visa is used for purposes of conducting trade between the United States and the country of majority ownership of the company, it will be an E-1 visa. However, if the investor wishes to oversee investment in the United States then, he/she will apply for an E-2 visa.

The E-1 visa for traders requires proof of substantial trading activity between the United States and the treaty country. Therefore there are special requirements in addition to the three basics elements of the E-visa category. The trader seeking for an E-1 visa status will have to prove that:

(1) The trading company is engaged in trade. Trade should be understood in a broad sense. The trade can involve the exchange, purchase, or sale of goods or services.

(2) The trade is substantial. The level of trade can be measured by volume, value and frequency.

(3) The trade is principally between the United States and Jamaica.

(4) The employee or principal serves the company in a specified capacity: either managerial or involving “essential skills.” The skill must be essential to the company’s operation which means that the employee seeking for E-1 visa should be highly trained technician familiar with the company’s products or performing the manufacturing, maintenance or repair of the product.

The E-2 visa requires proof of substantial capital investment that has either already been made or that is in the process of being made when the visa is requested. Therefore there are special requirements in addition to the three basics elements of the E-visa category. The investor seeking for an E-2 visa status will have to prove that:

(1) He/she is making an irrevocable and active investment. The investment must be made in a real operating enterprise. The investment cannot be only speculative.

(2) The investment is substantial. No minimum value threshold is set for the investment. The amount is measured in relation to the total cost of the US business.

(3) The investment will lead to job creation in the United States. It is not enough that the investment will only help the investor to support his/her family.

(4) He/she has a key role in the enterprise. He/she is a qualified manager or specially trained and highly qualified employee necessary for the development of the investment.

The E-visa is granted for an initial period of two (2) years. However, this period can be extended almost indefinitely.

When the immigration process may seem to set obstacles along the way, discouraging investors from making their dreams come true and despite the current economic situation, the United States still represent the biggest market in the world and many areas such as biotechnologies, communications and aerospace should be very attractive to investors. Investing in the United States is a great way to live and achieve your dreams with open eyes.

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Temporary Immigration Relief Measures for Haitian Nationals

January 19th, 2010

In an effort to assist Haiti following the devastating earthquake that struck on January 12, 2010, the United States Citizenship and Immigration Services (USCIS) will provide certain temporary immigration relief. The Secretary of the Department of Homeland Security, Janet Napolitano, has announced the designation of Temporary Protected Status (TPS) for Haitian nationals who were in the United States on the day the earthquake struck. This designation will allow eligible Haitians nationals to continue living and working in the United States for the next 18 months.

Additional temporary immigration relief available to Haitian nationals include favorable adjudication, where possible, of requests for change or extension of nonimmigrant status, acceptance of applications for change or extension of nonimmigrant status submitted after the Haitian national’s authorized period of admission has expired, re-parole of Haitian natioals granted parole by USCIS, extension of certain grants of advance parole, expedited processing of advance parole requests, favorable and expedited adjudications, were possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students, expedited processing of immigrant petitions for children of U.S. citizens and lawful permanent residents, and issuance of employment authorization where appropriate.

Also, USCIS will adjudicate favorably where possible applications for change or extension of nonimmigrant status following the expiration of an applicant’s period of admission. B visa non-immigrant visitors can apply for an additional 6 month extension. In cases where a Haitian national is no longer able to extend his or her current nonimmigrant status, favorable consideration will be given to requests for change of status to B-1 or B-2.

Finally, Haitian nationals who are under a final order of removal may be granted a stay of removal. Decisions will be made on a case-by-case basis. Where appropriate, Haitian nationals that receive a stay of removal may be eligible to apply for or receive employment authorization so that they may support themselves.

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Defences to Dog Bite Claims in Jamaica, West Indies

January 16th, 2010

While the law creates strict liability for injuries caused by dogs, as all that is necessary is for the party suffering from a dog bite is to show that the fact of the injury and that the person is the owner of the dog, it does not create absolute liability in that the owner or deemed owner of the dog has Defences which he may raise.

The owner or deemed owner of a dog may, in his Defence, raise the point that the person who was bitten was a trespasser on the premises. A person is a trespasser on premises if he was not given permission to be there, for eg. a burglar. If he is bitten by a dog on the owner’s premises then he is taken to have consented to being injured as the owner would then have no responsibility to keep the dog chained or away from a trespasser who had no right to be there. Naturally if a person is invited to the premises, then the owner will be liable for any injury caused as he has a duty to his guests to ensure their safety.

Contributory negligence may also be a Defence raised by the owner or deemed owner of the dog. This Defence entails showing that the person injured contributed to his own injury. This means that the injured party either did something or did not do something which partly caused the dog to bite him. This could take the form of children, or even adults, teasing a dog or a person ignoring a sign that there are dangerous dogs on the premises.

Another Defence available to the owner or deemed owner of a dog is that the injury was caused by the act of a stranger or the act of an intervening third party. This may take the form of another person untying a dog thereby causing it to escape and bite a person either on or off the premises. It may also include a person leaving the gates of the premises open and the dog leaves and bites someone on the road. This Defence is only available however if the owner can show that he had done everything reasonably possible to prevent third parties from meddling with the dog and thereby causing the dog to injure another person.

An owner or a person who could be deemed the owner of a dog should therefore take due care that his dogs are either kept within the gates of his premises or if there are visitors they should ensure that the dog is chained or kept in a place away from any visitors to the premises. In all the circumstances those who seek to enter premises that have dogs should take extra care. Indeed, a word to the wise is sufficient.

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Business litigation with no upfront fees and costs? A dream come true.

December 9th, 2009

Businessmen and women know the nightmare of business litigation. Bills, bills and more bills. Every phone call to the attorney is charged. Every copy made is charged. A one page motion may cost thousands of dollars in “research and drafting.” Cases seem to never end. You wonder if your attorney is working for you or for himself. Have you ever dreamed of being able to litigate a meritorious business claim that will not cost you a penny unless you win? If you have, your dream has come true at CPLS, P.A. We have brought into the business litigation world the concept of contingent fee litigation. We will evaluate your case and if we conclude that you have a meritorious case that will likely result in a substantial recovery of money or property, we will agree to represent you without you having to front a penny. We will be paid our fees and costs if and only if we obtain a recovery for you. The percentage of our fees may vary with the complexity of the case, the monetary amounts involved and the likelihood of collection, and will typically be in the range of 25% to 45%.

For more information, please call us at 407-647-7887 or email us at info@cplspa.com

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Do You Need An Aggressive Divorce Lawyer?

December 3rd, 2009

Many clients come to us seeking an “aggressive divorce lawyer” because they feel that if their lawyer is “aggressive ” towards their spouse, they can gain an advantage in their divorce case. However, almost everyone who asks for an “aggressive ” lawyer has a different definition of what an “aggressive lawyer” is. Some clients want us to be nasty towards to their spouse and his/her lawyer. Some want us to bombard their spouse and his/her lawyer with lots of paperwork. Others want us to do whatever we can to intimidate their spouse and his/her lawyer. When we get theserequests , our response is usually the exact opposite of what our clients expect. We prefer to be respectful, cooperative and firm with the other party and his/her lawyer. Our strategy will be to thoroughly analyze our client’s case, educate our client about his/her options, and the pros and cons of each, and advocate for the client as strongly and professionally as possible.

We believe that the true role of a divorce lawyer is to help couples through the divorce process in a manner in which they can have a successful life after divorce. To accomplish this, sometimes it is better to speak softly and carry a big stick.

To find out how we can help you, call us at 407-647-7887 or email us at info@cplspa.com

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Bank of America sued for not crediting payments to credit card accounts upon receipt

November 28th, 2009

CPLS and Morgan and Morgan have partnered in an action against Bank of America to force the Bank to credit payments made by consumers to their credit card accounts upon receipt by Bank of America. The named plaintiffs, Jennifer Mendoza and Heydee DeLeon, both had credit cards with Bank of America. They both made payments on their cards on a Saturday at a Bank of America Banking Center on or before the date due, but Bank of America did not credit their accounts until the following business day, causing a $39 late fee, despite the express terms of the Bank’s credit card agreement which requires the Bank to credit the payment upon receipt. Bank of America moved to dismiss the case, but a Federal Judge refused to dismiss the case, finding that there is a valid case for Breach of Contract. The plaintiffs seek to have the case certified as a national class action so that they can stop the Bank from violating the terms of their contract. For more information, please contact Cynthia Conlin, Esq. at cconlin@cplspa.com

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When Landlords Try to Remove a Tenant through Self Help in Florida

November 27th, 2009

Almost any Floridian who has endured a hurricane has learned the enormous discomforts and inconveniences of living without electricity or water, even if for only a day. Televisions, electric stoves, water heaters, microwaves, and more are off limits. Moreover, refrigerated food goes bad, and when the temperatures drop, cold showers are unbearable.

Occasionally, landlords, knowing too well the grim reality of these discomforts and having residential tenants they want to get rid of, will take what they think is the “easy” route to kicking out a tenant (rather than filing a formal eviction action) by disconnecting the tenant’s electricity or water. This act, a type of “constructive eviction” (or self-help eviction), is against the law in Florida. Section 83.67(1), Florida Statutes, provides that a residential landlord “shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.”

When residential tenants are the victims of constructive eviction, Florida law allows for them to fight back against the landlord by asking the Court to order the landlord to reconnect the electricity. The law also allows a tenant who is successful in such an action to recover reasonable attorneys’ fees.

In some constructive eviction situations, even the utility company can be found liable. For instance, take a situation where the utility company has actual knowledge that the landlord is disconnecting the utilities for the purpose of getting rid of a tenant and that a tenant family, for example, a single mother and four children, are still living in the house. Most courts will find that a utility company is required to act with the same duty of care that a reasonable person would exercise given the consequences of a shut-off. This duty of care is heightened by the fact that electric and water services are essentials of life.

Furthermore, many courts, especially in cases where the utility company is city-owned, have held that residential tenants have a constitutionally protected interest in continued utility service and therefore may not be deprived of this service without receiving reasonable notice. Imagine a situation where the utility account is in the landlord’s name, but each month the tenant pays the utility company directly. One month, the tenant pays the utility bill but not the rent. The landlord, angry for not having received the rent, telephones the city-owned utility company to disconnect the tenant’s electricity and water. The utility company obliges, because the landlord is the accountholder, and it fails to give notice to the tenant.

In this scenario, the tenant, who had paid the utility bill prior to its wrongful disconnection, has a legitimate interest in the continued enjoyment of the utility service for which she paid. Because a constitutional violation occurs when a government agency fails to provide due process, many courts would find the city-owned utility company in this scenario liable for having violated the tenant’s constitutional due process by having disconnected the tenant’s utilities without notice to her.

Every situation is different, of course, and not all amount to violations. Regardless, where a landlord who commits some sort of act of constructive eviction, a tenant should, at the very least, consult with an attorney who will be able to inform her of her legal rights and options.

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

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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What About Your Assets After Bankruptcy?

November 27th, 2009

As a Bankruptcy attorney, every day I come across people interested in learning about the Bankruptcy process. In most of these cases, they are interested in learning whether or not they would lose all of their assets after the filing of a bankruptcy case. The simple answer is that yes under Chapter 7, except that they will be able to retain only those assets that they will need in order to obtain a fresh start; under Chapter 13 they will be able to retain all their assets if they successfully complete their repayment plan.

Bankruptcy is a legal process started by an individual wishing to obtain the benefits that the Bankruptcy Code provides. For individual debtors that are two possible relieves provided by bankruptcy: (1) liquidation under Chapter 7 and (2) reorganization of financial matters under a Chapter 13 or 11. The purpose of a Bankruptcy process is two fold: (1) a new beginning for the debtor and (2) equity among creditors.

The Bankruptcy process starts with the filing of a voluntary petition, along with the filing of additional documents that have the purpose of presenting the debtor’s detailed financial situation. Once the petition is filed, the automatic stay starts. This allos for the stay of any collection effort against the debtor. Approximately 30 to 35 days after the filing, a meeting of creditors is held. In the majority of the cases, a discharge is received 90 days after the meeting.

Exempt Property:

Once the Bankruptcy process is started the bankruptcy estate is created, which consists of all interested that the debtor has in any property at the time of the filing of the petition. However, there are several types of property that is considered exempt, therefore the debtor will be able to retain them. The Bankruptcy Code provides a list of exempt property, however Florida opted out of these exemptions. In the State of Florida the following property is considered exempt:

1. Homestead: The debtor’s residential property is considered exempt, except against those creditors to whom the debtor granted an interest in the property;

2. Up to $1,000.00 of personal property;

3. Up to $1,000.00 in a motor vehicle;

4. Wages up to a maximum of $500 weekly. Once these have been deposited in a financial institution, they will remain exempt for aperiod of 6 months; and,

5. Certain benefits, retirement plans, and other non tangible assets are also exempt (e.g., alimony, child support, medical savings plans).

Bankruptcy is a right that has been granted every individual and provides the opportunity of a new beginning. Before seeking the relief that this process provides, it is important that each individual analyze his or her options and become informed about the process, including the advantages and disadvantages of the same.

For more information please send us an email at info@cplspa.com

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