Lusk, Drasites, Tolisano & Smith, P.A.

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.

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

2009-04-29T15:23:00.001-07:00

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.

Child Custody and the Law

2008-12-18T11:42:00.001-08:00

Divorce is hard on everyone, especially if there are children involved. When two divorcing parents cannot agree who should have custody of the children, the courts will decide what is in the best interest of the children. In many cases both parents will share the responsibilities; however, there are special cases where assigning one parent sole custody will be best for the children’s welfare.

The courts do not make these decisions lightly. Many aspects of the parents’ abilities are taken into consideration, including:

Emotional ties with the children
Abilities to provide essential needs, such as food, shelter, clothing, medical care
Likelihood of allowing the nonresidential parent to have contact with the children
Stability of the home
Ethical character
Physical and mental health
Propensity for child abuse or domestic violence

The children’s comfort level is also worked into the equation, including allowing mentally mature children to state which parent with whom they would like to live. The courts will also look at the children’s school records and community involvement to ensure the correct decision is made.

The wording of Florida’s child custody law is currently being revised to ensure that both the mother and father have an equal role in their children’s lives. Wording such as “custodial” and “non-custodial” and “primary residential parent” and “secondary residential parent” will be eliminated, and the word “parent” used instead so each parent’s role is not diminished.

If you and your spouse are considering divorce and children are involved, please contact our family law attorneys at Lusk, Drasites, Tolisano & Smith, P.A. We will help you through this difficult decision and help you decide what is in the best interest of your children.

Your Dog and Leash Laws

2008-11-10T13:09:00.000-08:00

There is no statewide leash law in the state of Florida; however some counties in Florida, such as St. Johns County in St. Augustine, have enacted their own leash ordinances to help control the incidents of dog bites and spread of disease. Some homeowner associations in various municipalities enact their own bylaws that require animals to be leashed.

Regardless of whether or not leash laws are in effect, it is a good idea to keep your dog on a leash when outside your home. In Florida, if you own a dog and your dog bites another person, you will be held responsible for any personal injury your dog causes. There is no way to determine whether or not your dog may have the propensity to bite an adult or child. While there are certain breeds of dog that are more prone to such behavior, any dog can bite, especially if that dog is overly excited, scared, sick or acting to protect its property or family.

If you or a loved one has suffered psychological trauma, injury or disfigurement because of a dog bite, please contact our attorneys at Lusk, Drasites, Tolisano & Smith, P.A. today for a claim evaluation and get you the compensation you deserve.

Wills and Trusts: What You Need to Know

2008-10-08T12:42:00.000-07:00

Wills and trusts are legal documents to help you have control over where your estate or property is distributed and how it is managed after your death. After you die, any property you own typically will go through the legal process of probate, which transfers the property’s ownership to your beneficiaries. These can be large, quite valuable estates or smaller-scale estates involving real estate and personal properties.

What are trusts?
In order to avoid having your property subject to probate, you may opt to set up either a revocable or irrevocable trust. A trust allows you to transfer the legal title of your property to a different person or entity of your choosing while you are still alive. Revocable trusts can be changed by you at any time; irrevocable trusts are permanent. A trustee, the person or entity named by you, will control the trust according to your instructions. Upon your death, because the property is owned by the trust, your beneficiaries may not have to go through the probate process, which can be less costly for your heirs.

Why is a will important?
Wills are important legal documents that help provide for your family after your death by stating:

How your property and assets will be distributed
Who you want to care for your children or disabled adult children
Who will be the personal representative of the will

If you die without a legal will in place, the state will decide these issues for you, and the selections may not be what you would have chosen. Depending on your family situation, your estate and the custody of your children could be given to your spouse, parents, siblings or other family members.

Make sure you have a plan for your family’s future. Do not wait until it is too late. Please contact our estate planning attorneys at Lusk, Drasites, Tolisano & Smith, P.A. today to set up a will or trust to protect the estate and assets you worked so hard to accumulate.

When Do I Need a Personal Injury Lawyer?

2008-09-04T10:02:00.000-07:00

A person can become injured from a wide variety of circumstances, and those injuries can be physical or even psychological in nature. When injuries are caused by the negligence of another person or company, the injured party has the right to sue for damages. Common personal injury claims include:

Auto, motorcycle or truck accidents
Slip and fall accidents
Work accidents
Hospital or nursing home malpractice
Dog bites
Defective products
Wrongful death
Brain or spinal cord injury

Personal injury cases can be complicated and lengthy. By retaining the services of one of our experienced, qualified personal injury attorneys, we may be able to recover substantially more in damages than if you tried to pursue a claim by yourself. We will investigate the circumstances surrounding your injury and will give you realistic expectations of how much money you may recover. We are familiar with the laws surrounding personal injury cases and will work to get you compensation for lost wages, medical care, emotional trauma, property damage and pain and suffering.

Please contact a personal injury attorney at Lusk, Drasites, Tolisano & Smith, P.A. as soon as possible after your injury so we can get started on your case.

Auto Accidents

2008-08-21T10:17:00.000-07:00

Volvo recently announced that they were going to eliminate death and injuries in auto accidents involving their cars by 2020. Not only is this an improbable feat, it will prove impossible. There is no way to make a car so safe that no deaths, let alone personal injury will ever occur. While a noble idea, there are simply too many external factors and too many other unsafe drivers on the roadways to meet this objective.

According to the National Highway Traffic Safety Administration, there were more than 43,000 deaths on the nation's roadways and almost 3 million injuries. In order to meet their goal of no accidents, they would have to reduce that number by the percentage of Volvo's on the road, to zero. That would be statistically impossible.

In order to reach this remarkable goal, Volvo would have to change people's behavior, which as you know is practically impossible. According the NHTSA, most car accidents are related to preventable human action that takes the driver's attention away from actually driving.

81 percent of accidents were caused by drivers talking with passengers
66 percent involved playing with the radio or cd player
49 percent were occupied eating or drinking (not necessarily alcohol)
25 percent were using a cell phone

Volvo may make great strides in reducing the number of injuries and fatalities involving their vehicles, but reducing it to zero is impossible because humans will continue to be humans.

If you or someone you know was involved with an accident with any type of vehicle, the attorneys at Lusk, Drasites, Tolisano & Smith, P.A., can help you file a claim and obtain compensation for damages. We have offices in Ft. Myers and Cape Coral. Please contact us today to find out how we can help you.

Foreclosure Defense

2008-08-06T10:25:00.000-07:00

Is danger lurking ahead? Do you foresee not being able to make your mortgage payments in the immediate future due to job loss, medical issues, an adjustable rate, or merely the result of having bought more house that you really could afford?

It may be time to see an attorney.

At first glance, the prospect of taking a foreclosure defense case is about as exciting for a lawyer as defending a known criminal, who committed his latest act in front of about 100 witnesses. After all, in the overwhleming majority of cases, your client signed a note, agreed to repay it, and has failed to do so. In the end, if the case goes to trial, even an extremely saavy lawyer (like myself) will have an extremely hard time preventing the fact that payments have been missed from coming out in front of the Judge.

Do not despair - Relief is possible...

Many lenders today are willing to accept a "deed in lieu of foreclosure" allowing you to simply turn over your home and avoid a deficiency judgment (representing the difference between the value of the home and the total amount owed to the lender). Most require that you are truly facing a hardship (out of state investors looking to shift the risk of loss to the bank due to their own poor real estate investment decisions usually do not qualify). The concept also allows you to avoid the negative marks on your credit reports associated with a formal foreclosure, although the missed payments will often still show up.

Unfortunately, deeds in lieu are becoming less popular with banks, as the real estate market continues to tank. Property taken by a bank (referred to in the industry as "REO's" or "real estate owned") cost money. The bank has to pay property taxes, hazard insurance, flood insurance, and maintenance just like you, or risk losing their asset. This is a "real drag" to the banker. Bankers get rich making loans at interest, not by having to manage real estate. As such, another option is the "short sale."

A "short sale" refers to the scenario where the lender will agree to a sale of the property to a 3rd party for less than what is owed. Just be careful with these, as the term "short sale" is often misunderstood or misused. The last thing that you want to end up with is tax liability associated with "forgiveness of indebtedness" income. Trust me, The Mortgage Forgiveness Debt Relief Act of 2007 is frequently insufficient protection to avoid this type of "phantom income." As such, I like to structure this transactions in 4 stages - first, we find a buyer, second, we obtain bank approval for the transaction, third, we convey the property to the bank in exchange for a satisfaction of mortgage, and fourth, the bank sells the property to the new buyer. The bank might end up with a loss to write off, but no debt has been forgiven - you sold the property to the bank for the full amount of the mortgage. You win, and the banks win too, in that at least they are ending up with cash rather than another REO.

Sometimes, neither option works. There are other ways to settle. Some banks are willing to reduce principle or cut the effective interest rate so that you can afford to make your payments. Check out this amortization calculator. Some will accept a "deed in lieu" plus some additional sum, but at least that additional sum is less than the deficiency judgment that you could expect if a full foreclosure went through.

The key to this is patience. Most lawyers prosecuting foreclosures are not used to highly contested proceedings, or frankly proceedings where any defense is alleged at all. The overwhelming majority of foreclosures go through as "defaults" where the delinquent homeowner does not even respond. When there is a response, it usually comes from a "pro se" litigant (someone without a lawyer) who simply pleads for "more time" from the Court. Judges have few options in situations like this - the law is pretty clear that if you want to stay, you have to pay.

As a result, many attorneys prosecuting foreclosures have become lazy. Legal descriptions are often incorrect. Often times, the loan has been assigned to a new lender, and new lender did not even record the assignment prior to filing suit. This creates a "standing" issue. One must own a note to foreclose on the mortgage associated with said note. A lack of standing is a defense that can get a case dismissed entirely.

In the end though, my goal is to find a way to get the property owner out of the loan in a fashion that the property owner can live with, not to try and somehow invalidate the mortgage or obtain a windfall judgment. This is the "victory" we fight for in the foreclosure defense industry.

Here's what you should not believe. If a lawyer tells you that somehow you should expect some type of substantial settlement from the bank (where the bank pays you), rewarding you for blowing off your "upside down" mortgage, don't believe it. The term "predatory lending" might be all the rage in the media, but there are some that still believe in accountability for one's actions, and many of those who believe in this age old moral concept are on the bench. Is there such a thing as "predatory lending"? Yes. How often does it actually apply? Not often.

A decent lawyer can keep you in your home for a while and delay foreclosure for many months (or even a couple of years), and usually can even help you reach a settlement that would be better than being hit with a huge deficiency judgment. There are even some "fees for keys" programs where the lender will pay you up to a few thousand dollars to just turn over your keys and sign a deed, allowing them to take possession of the home without the expense of a foreclosure. However, nobody gets rich by not paying their bills, even in 21st century America.

For more information, check out the rest of our website.

The dawning of a new era

2008-08-06T07:08:00.000-07:00

My name is Matthew Toll, and I am the partner at the firm in charge of the civil litigation department. My associates bill on an hourly basis. We handle real estate litigation (including but not limited to contract disputes, landlord/tenant matters and construction disputes), family law (including but not limited to divorce, paternity, dependency (dealing with the Department of Children and Families), child support (dealing with the Department of Revenue), custody disputes, and adoption cases), and just about all other types of commericial disputes and general civil litigation.

We also accept flat fee criminal cases.

Another key department at the firm is our personal injury department (if you've been involved in a car accident or even if someone close to you has been killed, we certainly can help you). The partners overseeing this type of work are Domenic Valentine (pre-suit) and Mark Smith (for ongoing litigation). For any of your transactional needs, including but not limited to commercial and residential real estate closings, wills, and trusts, you can contact Joan Henry.

All of this can be determined elsewhere on our website. The important thing is that we have now, albeit a little later than some, entered the world of blogging. I will try to make an entry to this blog at least once a week, detailing my latest cases and the results that clients can expect given changes in the law and the identity of the Judges who preside locally. I will also shortly begin my "Power of the Pen" series, where I detail how you "can get what you want merely by asking for it" (of course, by asking for it forcefully and in writing).

I encourage your response, and hope you find this process enjoyable. I have never been known for being anything other than entirely blunt, so you can expect nothing more than the cold, hard truth on this site. If you ever have any questions, I'll be here to respond as soon as I can. Let the new era begin!

Slip and Fall Accidents

2008-07-11T13:10:00.000-07:00

Have you ever noticed how when you trip or slip on something, you always look around to see what you can blame for causing it? That is because people don't usually have a problem walking across a level surface. A slip and fall accident that causes personal injury frequently has some sort of external factor that catches you by surprise.

Some factors that go into a spill are:

Personal coordination
Physical ability (or disability)
Environmental conditions

Even if you have a disability of some sort, it is typically some external factor like a slick surface, a broken sidewalk, or a foreign object that upsets your navigation and causes you to fall. If the environmental conditions of the property cause you to slip and fall, the owner of the property could be liable for damages. Under premises law, property owners need to ensure that the conditions of the property are reasonably safe for all potential visitors.

The conditions of a sidewalk, for example, might change through the seasons. Wet sidewalks become slippery and if not properly cleaned and maintained, puddles and mud can interfere with foot traffic. Not everybody who is going to be traveling along the sidewalk will have perfect balance and physical ability. Elderly people who must use a walker or cane to get around might find it difficult to traverse a sidewalk that is broken up by tree roots or other damage. If the damage forces you to leave the sidewalk and walk on unstable grass, or move out into the street, the property owner might be liable if you get hurt.

In some states, even if it is found that you were trespassing on someone's property, the proprietor could be held liable if there is a reasonable expectation that someone like you could enter the premises illegally and get hurt. The property must still provide ample warning of potential physical danger.

At Lusk, Drasites, Tolisano & Smith, P.A., we will help you establish a case against a negligent property owner in the Ft. Myers and Cape Coral areas. Please contact us as soon after your injury as possible. We understand premises law, and we will fight to obtain fair and adequate compensation for your claim.

Child Support

2008-06-19T09:44:00.000-07:00

Divorce causes all sorts of problems especially when children are involved. Approximately 28 percent of children under age 21 live in a home without a parent. Receiving child support is directly correlated with physical custody of the child. If you are a mother and have legal custody, you are awarded child support about 63 percent of the time. If you are a father however, you are only awarded child support about 38 percent of the time.

There are several different types of custody:

Physical custody – In most cases, physical custody is awarded to one parent based on the child's best interest.
Legal custody – Both parents typically share legal custody.
Joint custody – Joint custody attempts to split the time the child spends with each parent as equally as possible.
Split custody – In most cases, family courts do not like to split siblings, but if they do, that is called split custody.

If you are unmarried, most family courts will award sole custody to the mother. Fathers who seek custody must prove to the court that they are a better parent than the mom is. The unwed father however, usually takes precedence over other family members who might be pursuing custody of a child.

Approximately ¾ of custodial parents receive some form of child support from the other parent. If either of you are re-married, your chances of receiving payments from the other spouse increases.

If you are considering a divorce, or have problems collecting child support from a previous divorce, please contact a family law attorney at Lusk, Drasites, Tolisano & Smith, P.A. With offices in Ft. Myers and Cape Coral, we will help you ensure your rights, and your children's best intrest in your proceeding.

Defective Products

2008-05-29T10:47:00.000-07:00

In the U.S., the things you use in your everyday life are thought to be relatively safe. Sometimes however, despite all efforts a defective product can cause personal injury and even death. If you received a personal injury, or if a love one was killed by a defective product, you may be eligible for damages under product liability and wrongful death laws.

The responsibility for a defective product can include anybody responsible for the product's distribution.

Manufacturer
Maker of component parts
Wholesaler
Retailer

There are three types of defects in product liability cases:

Design defect
Manufacturing defect
Marketing defect

A design defect is a flaw in the design of the defective product that. In order to recover damages, you must prove that the defect was the cause of personal injury or wrongful death. Strict liability might be imposed on a product that unreasonably safe or if you can prove that the company was cutting corners to save costs.

If the defect is introduced during the manufacture of the product, that condition is defined as a manufacturing defect. The defect failed to follow the specified design of the manufacturer and resulted in your personal injury.

A product that is misrepresented by a company or advertiser could also cause a product liability claim if the misinformation is found to be responsible for the injury.

At Lusk, Drasites, Tolisano & Smith, P.A., we can help you establish a product liability claim if you have been injured by a defective product. We have offices in Ft. Myers and Cape Coral. Please contact us today to set up an initial consultation.

Lusk Drasites Tolisano & Smith P.A. receives 2008 Best of Cape Coral Award

2008-05-27T07:57:00.000-07:00

U.S. Local Business Association's award plaque honors the achievement Lusk, Drasites, Tolisano & Smith PA has been selected for the 2008 Best of Cape Coral Award in the Attorneys category by the U.S. Local Business Association (USLBA).

The USLBA "Best of Local Business" Award Program recognizes outstanding local businesses throughout the country. Each year, the USLBA identifies companies that they believe have achieved exceptional marketing success in their local community and business category. These are local companies that enhance the positive image of small business through services to their services to their customers and community. Please contact us for more information at Lusk, Drasites, Tolisano & Smith PA serving your community for over 25 years.