Last Will and Testament Package

In May 2011, Pro Law Team’s legal clinic offered a basic Last Will and Testament for husband and wife or domestic partners, together with a Durable Power of Attorney, a Health Surrogate appointment and Health Care Directive (living will) for $189.00. More than 100 new clients responded so we have decided to make the basic Last Will and Testament package a permanent part of our program.

Last Will and Testaments are essential for people with or without children, divorced individuals, married couples, singles, widows or widowers. Without a will, your property will be distributed according to State laws of descent and distribution.

A Health Care Directive, commonly referred to as a “Living Will”, permits a person to designate medical treatment desired or not wanted in the event of a terminal illness. 
A Living Will takes effect only when a person can no longer express his or her own wishes.

While a power of attorney contains an authorization for one to act as the agent of the principal that terminates at some designated date or event, a Durable Power of Attorney becomes effective upon people becoming incompetent or unable to manage their own affairs. The durable power gives an agent the authority to act for and in place of an incompetent or incapacitated person.

Appointment of a Health Care Surrogate permits one to designate a person to make health care decisions during a period of incapacitation and to provide informed consent which is essential for proper medical treatment, surgical and diagnostic procedures. 

Please click on "Discounted Forms Online" in the right column for more forms specials. 

May 2011

For the month of May 2011, Pro Law Team’s legal clinic is offering a basic Last Will and Testament for husband and wife or domestic partners, together with a Durable Power of Attorney, a Health Surrogate appointment and Health Care Directive (living will) for $189.00.  Normally this combination of documents and services cost $500. Some providers often charge in excess of $1,000.

Last Will and Testaments are essential for people with or without children, divorced individuals, married couples, singles, widows or widowers. Without a will, your property will be distributed according to State laws of descent and distribution.

A Health Care Directive, commonly referred to as a “Living Will”, permits a person to designate medical treatment desired or not wanted in the event of a terminal illness. 
A Living Will takes effect only when a person can no longer express his or her own wishes.

While a power of attorney contains an authorization for one to act as the agent of the principal that terminates at some designated date or event, a Durable Power of Attorney becomes effective upon people becoming incompetent or unable to manage their own affairs. The durable power gives an agent the authority to act for and in place of an incompetent or incapacitated person.

Appointment of a Health Care Surrogate permits one to designate a person to make health care decisions during a period of incapacitation and to provide informed consent which is essential for proper medical treatment, surgical and diagnostic procedures. 

Please click on "Discounted Forms Online" in the right column for more forms specials. 

What A Business Should Know About Patents

By J. Nevin Shaffer, Jr.
Board Certified Patent Attorney

Every Business Has Intellectual Property
The first thing to keep in mind is that every person who is in business has at least three of the four types of intellectual property. They have words, symbols and slogans that they use to identify and distinguish their brand of stuff from their competitors’ stuff. These are their trademarks. They also have works of art and/or authorship in the form of advertising, original software and the like that is protected by copyrights and they have trade secrets such as customer lists.

Not Every Business Has A Patent (But More And More Do)
There is no requirement that your business have a patent in order to be successful in your business, but it sure helps. Twenty years ago eight out of ten patent infringement cases ended up in the court throwing out the patent. Since the establishment of the Court of Appeals for the Federal Circuit, the odds have reversed. The bottom line now is that a patent is a very powerful business tool. Think of maximum leverage.

What A Patent Is:
The Good News
The good news is that a patent gives its owner something less than a 20 year monopoly to stop other people from making, using, and/or selling the patented invention. The actual length of a patent depends upon how long the bureaucrats in Washington, and you, take to approve an application for a patent. That is, the time begins to run from the day you file the application. Typically it currently takes two to three years from the date of application to approval.

Additional Good News is that, in the United States, you still qualify for a patent even after offering it for sale or disclosing it publicly. So long as a year has not elapsed from the date of first sale or disclosure you can still file an application.

The Bad News
The bad news is that they just don’t give away patents. Everything that has ever been invented must pass three tests:

• First, the invention must be useful. A lump of lead is useful as a paperweight so it is clear that this first test is a very low threshold test.

• Second, the invention must be new. Essentially this test means that so long as the identical thing has not been done before it is new.

• Third, an invention is patentable so long as it is a nonobvious improvement over pre-existing technology. This test is the kicker. The implementation of this test requires the creation of a hypothetical person. This hypothetical person is presumed to have ordinary skill in the “art” and to know every patent and publication in that art with which the invention is related. The problem that the invention has solved is presented to this person and if they can solve it the way you did it is an obvious, therefore not patentable, improvement. If they cannot, it is a nonobvious, therefore patentable, improvement. An obvious difficulty with this test is that everything is obvious when you know how. The paper clip is pretty obvious but it was patented. Patent attorneys, patent examiners, and you will spend most of their time struggling with issues of nonobviousness.

Two Options:
Do a Patent Search
One option for a person with an invention is to do a patent search. You can spend nothing on a patent search because the law does not require one before filing a patent application. On the other hand, you can spend the gross domestic product of the United States on a patent search. Even if you spent all the money in the world on a patent search, you would never know for sure that the invention is patentable because patent applications that are pending are confidential and may not be searched. Typically, a patent attorney and you will use a patent search as “go-no go” decision-making information. The thrust of the search is to attempt to determine if the exact thing has been done before (novelty) and if it is an obvious improvement on pre-existing technology or not (nonobviousness).

File a Patent Application
Another option is to file a patent application. As a practical matter, the patent examiner is the person who says yes or no, no matter how much you have or have not spent on patent searches. The issue here is cost. The number one question asked of patent attorneys is: How much does a patent application cost? This question, and its answer, is similar to asking: How much does a car cost? The answer is, it depends. It depends on the novelty, nonobviousness, complexity, time constraints, and business strategy of your business to name a few. Each situation is different. In general, a patent attorney will ask for more information about the invention not less. Once he or she is comfortable in their understanding of the invention they will give you an estimate of the cost of the application. While I have written a patent application in a weekend, it is best to give your patent attorney more time to draft the application, not less. A normal period of time is three to four weeks.

What a Business with an Invention Should Do
1. Keep It Confidential
Most inventors are paranoid. That is a good thing. In the knowledge/information age, ideas are the most valuable assets in the world. There are lots of people in the world these days with a lot of money but there are very few people with good ideas. The longer you keep your idea confidential the greater your options. Nonetheless most inventors have a need to consult with somebody, an engineer, a draft person, a (heaven forbid) venture capitalist, and you can so long as you first have a signed Nondisclosure/Confidentiality agreement.

2. Know Your MarketThe most important thing an inventor can do after coming up with the invention is to aggressively determine the commercial viability of the invention. It is not enough to say: “The market is huge.” You should be able to tell your attorney all the “players” in this particular market and exactly what are the numbers concerning products or processes that attempt to solve the problem solved by your invention. The more accurately you understands the potential for the invention the better able you will be to evaluate the cost-benefit ratio of filing a patent application, for starters.

3. Contact A Patent AttorneyActually this is tied with number 1. The sooner you get in contact with a competent patent attorney the better served you and your business will be. 

OPENING OF PRO LAW TEAM'S LEGAL CLINIC IN PENSACOLA

I am pleased to announce the opening of Pro Law Team’s legal clinic at 202 W. Jackson Street, Pensacola, Florida. The Clinic’s legal services are also available online at www.prolawteam.com.

The Clinic is specifically designed for fixed income and low to moderate-income individuals, small businesses and the self-employed. Office appointments may be scheduled any weekday online or by calling 850-432-6000.

In these tough economic times, we all have to spend wisely. When you need the assistance of an experienced attorney, now there is a means to save money using the online chat service to consult directly with experienced attorneys or scheduling an appointment at the legal clinic’s Pensacola office.

We will help you draft important legal documents of all types from your personal last will and testament, power of attorney, contracts, employment agreements and residential lease. If you’re starting a new business, selecting the right type of company can avoid future problems and offer personal protection from lawsuits. One of the best tools for getting that loan you may need is a professionally prepared business plan. These services and much more will be offered by the Clinic at greatly reduced fees and cost.

Gary E. Southworth

DOCUMENT YOUR BP OIL SPILL CLAIM AND USE PROFESSIONALS

British Petroleum is encouraging people to file claims on the oil spill damage mainly to ward off a bigger mess later. The plan, I suspect, is to pay as little now as possible and try to convince people of its gracious efforts to help out the “little guy”. But, as with most big companies, BP has a legal staff trained and motivated to settle “small”. Don’t get caught up in the rush to settle early. Seek out experienced counsel first which is one way to insure that you will get the full measure of compensation due you for your damages. Filing your own claims will most likely insure that you are paid less than your claim is worth. Remember, the person on the other side representing BP is experienced and has marching orders from BP. There are all kinds of damage claims that can be filed. One of the most difficult to prove is devaluation of real property, but there are ways to make a case for such which should be handled by professionals. Documentation is vital! In response to a client’s complaints about the smell of oil in his beachfront home, I advised him to remove the air filter from his air conditioning unit, bag and tag it with date and time. The filter can later be examined by an expert to measure the air quality in the home. Photographs of the oil on the beach in front of your home, will be powerful at a trial. True, everyone has seen photos on the news but it will be your home that is the subject of a claim and possible trial. The purpose of this memo is not to detail all the possible claims that one might file but to remind everyone to document your claim now and use a professional trained in litigation! No matter how insignificant it may seem, the least little piece of paper, photograph or thought written down and dated may make your case later. And, remember the old adage about representing oneself…. Something about a fool for a lawyer?????

Court Authorized Foreclosure Managed Mediation Program

By: Gerald A. McGill, Attorney

If you are the owner of an owner-occupied, residential property and are the subject of a mortgage foreclosure action in the First Judicial Circuit of Florida, your case will be initially referred to the Court Authorized Foreclosure Managed Mediation Program. The First Judicial Circuit takes in the counties of Escambia, Santa Rosa, Okaloosa, and Walton. The property must be located in the State of Florida, and must be the homeowner's primary residence. The homeowner will meet with the mediator and the lender's attorney and lender's representative to try to reach an agreement which would avoid foreclosure.

What is mediation?

Mediation is a process by which a neutral third party mediator assists the homeowner and lender in trying to reach a fair voluntary negotiated agreement.

Who are the mediators?

The foreclosure mediators are Florida Supreme Court civil certified and are trained in mediation and foreclosure law. The mediators have knowledge of different community-based resources and mortgage assistance programs.

How do I apply for foreclosure mediation?

If your home is in the First Judicial Circuit and is owner-occupied and you have received notice by the Court that a foreclosure has been filed, you are eligible and you will receive a call from the Collins Center to schedule your mediation appointment. The Collins Center is a not-for-profit organization which is managing the mediations for the First Judicial Circuit. For more information, go to www.collinscenter.org or if you have questions that are not covered in this particular posting, you can ask them at questions@collinsmediation.org.

Do I need a lawyer to participate in the Foreclosure Managed Mediation Program?

No, you do not have to be represented by an attorney to participate in the program. If you do wish to have your own attorney present, it will be at your expense. If you have retained an attorney, please provide the Collins Center Customer Service Staff with the attorney's contact information. To prevent a scheduling conflict, please do not schedule your mediation without first consulting your attorney. Once your mediation date is set, the Collins Center cannot reschedule, so please confirm the date with your attorney before you schedule.

Is there a fee to participate in the Foreclosure Managed Mediation Program?

No, there is no fee to the borrower.

Do all borrowers who signed the mortgage need to attend the mediation session?

Yes, all borrowers must be present at the mediation session; for example if a husband and wife signed the mortgage then both will be need to be present for the mediation.

Where will the mediation session be held?

The mediations for the First Judicial Circuit will be held at the Collins Center Mediation Office located at 236 West Garden Street, Pensacola, Florida. This is the only place where the managed mediations are being held at the current time.

What do I bring to the mediation session?

*Completed Financial Disclosure Form

*Credit Report

*Previous Year's Tax Return

*Proof of Income

*Most Recent Bank Statement

*Current Utility Bill(s) for Property in Foreclosure

*Hardship Letter

Will the mediator issue a decision in my case?

No. The mediator, as a neutral party, makes no decision, judgment or recommendation on the outcome of the mortgage dispute. The mediator's task is to help the parties and attorneys look at the dispute more objectively, discuss various options for a workout of the mortgage, listen to each side privately if desired, and assist the participants in finding a mutually acceptable solution.

Is the mediation confidential?

Yes, any discussions in the mediation session and any information exchanged are confidential.

What happens if we cannot settle?

If the parties cannot settle at the mediation, several things might happen. The parties may agree to further negotiations, or to provide additional information or the case may go forward in court.

Why should I bother to mediate my mortgage problem?

Many difficulties with mortgages, particularly with the temporary inability to pay the full amount of the mortgage can be resolved through reasonable discussions between the homeowner and the lender. An experienced mediator can help the parties find a creative solution that they may have overlooked. Mediation, with the chance to talk privately with the mediator, has a better opportunity to reach a solution than a possibly tense or difficult one-on-one negotiation between homeowner and lender's representatives.

What happens if I recognize that there is no way that I can make even reduced payments and keep my home?

If this is the case, you should still come to the Foreclosure Managed Mediation. There are alternatives to going through a full-blown foreclosure. Some of these are: a short sale where the bank allows the homeowner to stay in the home for at least 90 days while attempting to sell the property. If the homeowner does receive an offer, even if it is substantially lower than the principal of the mortgage, the lender will generally accept a reasonable offer. In addition, there is also an option of a "deed in lieu of foreclosure" in which the homeowner deeds the property back to the lender. This must be done with caution because, in Florida, if the property when resold is for less than the amount of the mortgage, the lender could seek a deficiency judgment against the former homeowner. Obviously the best solution for the homeowner is to have a guarantee by the lender that they will not seek a deficiency judgment.

Why not just walk away from the home and the mortgage?

This is not a good solution in Florida because the lender will proceed with the foreclosure and has the option of pursuing a deficiency judgment against the former homeowner. In some western states in which the lender cannot pursue a deficiency judgment, homeowners are walking away from mortgages that they feel that they cannot pay, but they can do this just by forfeiting the equity that they had in their home, if any, and not have to worry about a deficiency judgment against them in the future.

Defending Against Foreclosure

It is difficult to believe, but there are defenses to foreclosure. Granted, most defenses merely postpone the inevitable but this may be a good thing for those debtors who are able to find funding to pay off their note and mortgage and just need the additional time to do so. There are also real defenses that may actually prevent a debtor’s lender from prosecuting a successful foreclosure action.

The scope of this writing is limited and is not intended as a substitute for a legal opinion based on a proper review of individual circumstances. My purpose is to promote hope, generate a desire to inquire into one’s situation no matter how desperate it may seem, and seek out legal counsel being fully prepared to discuss all alternatives.

One of the first considerations for debtors in foreclosure proceedings is bankruptcy. Before a judgment in foreclosure is entered, it is wise to consult with a qualified bankruptcy attorney. The lawyer may be able to provide many acceptable alternatives. One advantage is that bankruptcy, properly and timely filed, will stop a foreclosure action dead in its tracts. The bankruptcy court will issue a stay of the foreclosure proceedings and although the stay may be lifted for good cause at a later date, the time and other benefits that a bankruptcy lawyer can muster for the debtor may be the best solution for some debtors, especially in states with homestead protection laws.

Once you receive a summons from the court notifying you that a foreclosure action has been filed, the debtor should carefully review the circumstances, make an appointment with a lawyer who practices in this field within sufficient time for the lawyer to file a responsive pleading.

In preparing for your first meeting with the attorney, the following are the some of the matters you want to be prepared to discuss:

(1) Did you receive a notice from your lender that you were in default or breached any of the provisions/terms of your loan/mortgage? When?

(2) Was there any conduct on the part of your lender causing you to feel pressured you into signing the note and mortgage even though you did not really agree with all the terms and conditions?

(3) If your mortgage and note encumbers more than one parcel of real estate, did your lender fail to honor any release provisions in the mortgage upon payment of a certain number on installments or amount? Did you request release provisions when applying for the loan/mortgage?

(4) Were you made promises, which turned out later to be false promises that induced you into signing a loan agreement with your lender?

(5) Did your lender fail to disclose important, legally defined as material facts, about your loan? A lender that fails to disclose confidential information such as appraisal results, for reasons of self-interest that have an adverse affect on you as a borrower, may be held liable for the failure. In Florida, borrowers for negligent misrepresentation may pursue some fraud claims as well.

(6) Did your lender take any action that interfered with your relationship with other lenders?

(7) Did you lender take some or your entire loan collateral (including cash bank accounts) from you prior to a default date?

(8) Has your lender disclosed your account information or any information about the condition of your collateral property to any third party without your permission and has that disclosure caused you any harm such as making it impossible to borrow from another lender.

(9) Do you feel that your lender or lender’s agent used deceptive, harassing or abusive tactics in attempting to collect on your loan/mortgage?

While not complete in any respect, the above questions should be discussed with your legal advisor. Having information and being otherwise prepared in advance to discuss these matters will save you time and money. Don’t hesitate to contact a lawyer. Ask the lawyer how many cases like your he/she has handled before. Discuss fees and terms of payment. A competent lawyer will not be offended by any legitimate question. Most importantly, don’t wait to contact a lawyer; time is not on your side.