What is the difference between fraud and misrepresentation?

fraud and misrepresentationWhat is the difference between fraud and misrepresentation?

Technically, there isn’t one. Fraud is a type of misrepresentation. There is, however, a distinction between fraudulent misrepresentation and negligent misrepresentation.

In order to establish a claim of fraud or fraudulent misrepresentation, also referred to as a “cause of action,” the Plaintiff must prove to the court that the following elements exist:

  1. Defendant made a false statement regarding a material fact;
  2. Defendant knew or should have known the representation was false;
  3. Defendant intended that the representation induce plaintiff to act on it; and
  4. Plaintiff suffered damages in justifiable reliance on the representation.

ALL of these elements must be met in order to prove a claim for fraud.

In order to establish a claim of misrepresentation, the Plaintiff must prove:

  1. Defendant made a false statement regarding a material fact;
  2. Defendant knew or should have known the representation was false;
  3. Defendant intended that the representation induce plaintiff to act on it; and
  4. Plaintiff suffered damages in justifiable reliance on the representation.

WAIT! THOSE ELEMENTS ARE THE SAME! Yes, that is true, but there is an understood distinction that the difference between fraudulent and negligent misrepresentation is the intent of the offender.

If the offender knew that the representation was false, especially if he had malicious intent, then the offense is most likely a fraudulent misrepresentation.

On the other hand, if the offender was unaware that the representation was false, even if he should have known it was false, then the offense is most likely negligent misrepresentation.

Misrepresentation and fraud cases can become very complicated very quickly, which is why it is important to speak with an experienced Florida litigation attorney regarding your situation as soon as possible.

There are pre-litigation steps that we at Boyer Law Firm, P.L. can take in order to mitigate some of the expenses of litigation, so contact us today if you believe you have a potential fraud and misrepresentation case.

Family Preference Categories for US immigration

Family preference categoriesIn order for a foreign national to obtain US permanent residence, they need to have a legitimate reason to come to the US, such as for employment, to start and invest in a business, or if they have family in the country.

You cannot simply purchase a piece of residential real estate and apply for a permanent visa or green card solely on that basis.

Family petitions allow a US citizen or permanent resident to apply for permanent residence (green cards) for certain family members. The length of time it will take for the application to be processed and granted is dependent on which “family preference category” the application falls under.

Immigration family preference categories are based on two criteria: the legal status of the petitioner (US citizens or permanent resident) and the relationship between the petitioner and the applicant.

The United States Customs and Immigration Service states the following policy when it comes to green cards for family members of US citizens and permanent residents:

Some relatives of US citizens, known as immediate relatives, do not have to wait for a visa to become available. There is no limit to the number of visas that can be utilized in this category in a particular year. Immediate relatives include:

  • Parents of a US citizen
  • Spouses of a US citizen
  • Unmarried children under the age of 21 of a US citizen

Note: US citizens must be at least 21 years old to apply for their parents.

The qualified relatives of a US citizen or permanent resident in the remaining family-based categories may have to wait for a visa to become available before they can apply for permanent residency. These categories include:

  • First Preference: Unmarried, adult (21 years of age or older) sons and daughters of US citizens
  • Second Preference A: Spouses of permanent residents and the unmarried children (under the age of 21)) of permanent residents
  • Second Preference B: Unmarried sons and daughters (21 years or age or older) of permanent residents
  • Third Preference: Married sons and daughters of US citizens, their spouses and their minor children
  • Fourth Preference: Brothers and sisters of adult US citizens, their spouses and their minor children

If you are a US citizen or permanent resident who wants to apply for a green card for a family member, then contact Boyer Law Firm, P.L.’s immigration attorneys today.

Source: USCIS

What is a Breach of Contract in Florida?

Breach of Contract in Florida A Breach of Contract in Florida is a common claim in civil litigation. In order to prove this claim, the following elements must be met:

  1. Plaintiff and defendant entered a valid contract;
  2. Defendant committed a material breach of the contract; and
  3. Plaintiff suffered damages caused by defendant’s breach.

Therefore, in order to prove a claim of breach of contract, the Plaintiff must first ask themselves if they entered into a valid contract with the defendant. In order to determine this, it is important to understand what a valid contract is.

A valid contract contains the four elements: (1) Offer; (2) Acceptance; (3) Consideration; (4) Mutual understanding (meeting of the minds)

In general, a contract can be oral or written, but there are certain circumstances in which a contract is unenforceable unless it is in writing. This requirement is known as the “Statute of Frauds.”

Additionally, the contract cannot be for an illegal or impossible act, and contracts with minors are usually not enforceable.

There are many other conditions to a valid contract, which is why it is important to discuss your situation with an attorney who is experienced in both civil litigation and business law.

If you believe you have a breach of contract in Florida, or if you have a contract and you are not sure if it is legally enforceable, then contact Boyer Law Firm, P.L. today to see how we can assist you.

Celebrity Wills: Ugly Probate Process from Poor Planning

Celebrity wills
London, United Kingdom – April 28, 2008 : The Diana Princess Of Wales Memorial Walk in Hyde Park, dedicated in memory to Diana, Princess of Wales.

These celebrity wills show what can happen when you do not have a proper estate plan in place.

Although Michael Jackson had setup a trust before he died, his estate still underwent a very public probate process because his will did not properly transfer his assets to the trust, so they were subject to the probate process, and therefore public record. The general public learned about all of the fighting going on in Jackson’s estate as well as financial information, such as his mother’s monthly grooming expenses of $1,000 and his family’s monthly allowance of $86,000.

Princess Diana left a “letter of wishes” giving her godchildren ¼ of her estate, but the executors of her will convinced the court to disregard the letter without notifying the godchildren. Again, this estate because public record and the actions of Princess Diana’s executors did not reflect the same values that she showed in her lifetime.

And, as mentioned in a previous Celebrity Wills Blog, Former Chief Justice of the US Supreme Court, Warren Burger, cost his children millions of dollars in taxes because his will, which he wrote himself, failed to give his co-executors the power they needed to sell real estate, pay taxes, and otherwise manage the estate.

 

Like these celebrity wills, if you hold assets in Florida, especially if they equate to a large value, then you could be subject to a public, messy probate proceeding if you do not properly document your wishes for your assets. Failure to have a proper estate plan can result in your assets being improperly distributed. In addition, if you do not properly plan for estate taxes, then the majority of your estate could end up being paid in taxes to the IRS.

If you are a foreign individual who owns assets in Florida, then it is important to make sure that your foreign estate plan and your Florida estate plan are consistent with both applicable laws so that there will not be additional work, and therefore additional attorneys’ fees paid from the estate, during the ancillary probate process.

Whether you are a full-time Florida resident or a foreign national who owns assets in Florida, contact Boyer Law Firm, P.L. today to see how we can assist you with your Will and other estate planning needs.

What to do if Your Company is Sued in Florida

What to do if Your Company is Sued in Florida

In Florida, if a business entity, such as a Florida LLC, Florida Corporation, or other Florida company is sued in a lawsuit, the owners, managers, or directors are required by law to hire an attorney to represent the business entity.

The reason for this is because when a person represents themselves in court, known as acting “pro se,” they are not practicing law because they are representing themselves. However, since the business is considered a separate entity from the owner(s) of the business, the owner of a company cannot represent that company because it would be considered an unlicensed practice of law, even if he is the only owner, manager, and employee in the entire company.

Companies in Florida are sued for many different reasons, both legitimate and not, but if your company is sued in Florida and you do not hire a Florida attorney to represent you, the Plaintiff in the civil action may receive a default judgment against your company for failing to respond.

A court will grant the default judgment against a business entity because if the owner of a business entity were to respond to a Complaint or Summons on behalf of the company without hiring an attorney to represent the company, they would be guilty of the unlicensed practice of law, which is a third degree felony.

This Final Default Judgment could result in several different scenarios, from a judgment lien being placed against your company, to garnishment of company assets, or even worse. In some scenarios, the Plaintiff may be able to “pierce the corporate veil” and recover your personal assets as payment for the judgment.

If your Florida LLC or Florida corporation has been sued, then you need to contact an attorney IMMEDIATELY, as failure to respond by the deadline could also result in a default judgment being granted against you and/or your company.

If your company has been involved in a business dispute that you feel may result in litigation, then it is also important to contact an attorney. An experienced litigation and business law attorney may be able to take steps, such as pre-litigation negotiations, pre-litigation review of documents, and more, that could eliminate the need for a lengthy and costly court proceeding, or at the very least, be prepared for when the action is initiated by the opposing party.