Pamela Higer-Polani, 

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Secrets that Attorneys Want You to Know but do not always Share!

Posted on December 6, 2022 at 3:10 PM Comments comments (7)


Close the Door, Turn Off the Phone, Give the Dog a Treat and Pay Attention because I am about to reveal Secrets that Attorneys Want You to Know but do not always Share! Sometimes civil legal action is unavoidable. If and when you ever need to retain an attorney, here are some tips to help you navigate through the process:


1. Take Advice from Kenny Rogers

Potential Clients always seem surprised when I heavily discourage them from hiring my law firm to settle disputes they have, especially if other family members are involved. As a Probate & Trust attorney, I know too well that once I become retained, tensions in a legal crisis quickly escalate. Likewise, even if an injustice is obvious and blatant to you, it usually takes a lot of patience, time & money before results will be obtained, if ever. As the song says, “You’ve Got to Know When to Hold ‘Em, Know When to Fold ‘Em, Know When to Walk Away, and Know When to Run”. This is why my office also provides Estate Planning services, attempting to prevent such measures from ever being needed.


2. Don’t Hire a Podiatrist when You Need a Surgeon

Everyone has a neighbor or a colleague’s sister that practices law. To ensure you receive the best results, make sure to retain an attorney that focuses solely on the area that you need. For instance, a lawyer that handles divorces should not draft your Last Will & Testament as that person may not be aware of the most updated Elder Law statutes or understand the full ramifications of the instrument prepared, both of which will likely result in unintended Probate or court appearances. Remember: you are not hiring an attorney solely to prepare documents. Rather, you should choose a lawyer for their knowledge, expertise and experience in that specific field.


3. The Squeaky Wheel Gets the Oil

We want to Hear from You! Do not be intimidated or afraid to contact your attorney. As long as the conversations are productive and conducive to the efforts being undertaken, our office does not even charge, generally, for email or telephone communications with our clients. To represent you properly we need to know all the details regarding your legal concerns. This does not include talking incessantly about non-related issues or calling a personal cellphone at 6 am, both of which will more than likely cause your lawyer to terminate your working-relationship. Nonetheless, keeping your attorney updated and informed on a regular basis should be constant and anticipated. Likewise, if you do not understand some aspect, please ask! Being courteous and respectful of your attorney’s time is important, and so is your comfort level. Your attorney should be prepared to review details of your legal work with you, making you feel as empowered and knowledgeable as possible throughout.


4. Mimic “Sherlock Holmes”

Relying on your attorney for all the information needed, whether for transactional or litigation matters, is unrealistic. Be prepared to create the timeline, provide contact names and the research needed to assist your attorney with protecting your legal interests. Moreover, the more organized and reliable the facts are presented, the more your attorney will be able to understand how best to serve you. Conversely, the more groundwork your attorney must do, the longer your case will take to resolve and more money will be billed to your account. So save yourself time and funds by ensuring you provide your attorney in a timely manner with all the informational tools they need to represent you properly.


5. Don’t Confuse Google for a Law Degree

Advice obtained by the internet or well-intended friends generally is worth what you paid for it. If you are thinking, nothing – Exactly! Never ceases to amaze me when people will attempt to handle their own legal matters. You would likely never try to re-wire your house, your most prized asset, on your own without the assistance of a trained, licensed Electrician. So why would you try to save a few pennies and potentially lose your home by not having suitable legal representation? Improperly Changing the Title on a Deed, Defending a Foreclosure Action or Drafting Estate Documents all require expertise and experience. By the time that you realize that you made a mistake, it may be too late or extremely costly to fix. Why take the Risk? Likewise, seeking the most affordable lawyer may not be a great idea either. Too good to be true usually ends in disappointment and money wasted. There is always someone willing to do things cheaper. Again, Why take the Risk?


Remember, Before YOUR Troubles Hit the Fan,

Please Create Your Estate Plan. 

Don't Let Your Fears Become Bigger than You..

Posted on September 1, 2022 at 3:15 PM Comments comments (629)

Having enjoyed my vacation a bit too much, I decided I needed some exercise.

Unfortunately, once my mind is set on a goal, I sometimes have a difficult time changing paths, as do we all, from time to time.

For instance, on a recent bike ride, admittedly there were signs that indicated I should turn around and go home.

Maybe I should have heeded the warnings, such as when someone started driving their car in the actual bicycle lane with me in it or when my shoelace became caught in the bike gears. Yes, both things actually did happen!

Likewise, as clouds started forming quickly, perhaps you would have thought that a good time to get to a safe place.

However, you do realize that I am a very determined individual, yes?

Only when thunder rumbled and a deluge of water hit my head, did I finally stop and assess my situation.

Why had I not called for help at the first indication of impending rain? Sought shelter before the rain poured down? Changed direction when I still could?

Many of us often do not appreciate our situation, whether financial, legal or medical, until some external factor forces us to do so.

As a probate attorney, I often hear that clients had intended to address estate planning issues in their lifetime but never got around to it. Not facing reality is easier sometimes until, unfortunately, we have no choice whatsoever about that issue. Ignoring the signs of what is happening around us becomes a battle of wills, with most of us preferring to not take control or face an unpleasant situation.

Unfortunately, limiting our options rarely turns out to be a satisfactory decision for anyone.

A colleague recently retained me indicating that he wanted to arrange for all four of his children to sign in my office several basic estate-planning documents, such as a Durable Power of Attorney, Pre-Need Designation of Guardianship and HIPAA, now that each child was over 18 years old.

When I raised the topic of Living Wills and Health Care Surrogate Designation, he adamantly said “no”, and could not discuss the possibility that any of his children (or himself) would ever be diagnosed in a permanent vegetative condition. I was amazed! Here sat in front of me, an educated, worldly and highly intelligent individual, who handled many different legal complexities but could not bring himself to discuss a very real, albeit depressing, situation.

Just like you carry an umbrella, a bottle of water, and a cellphone in case of emergency, taking care of yourself must be a priority, not an after-thought.

Don’t Let Your Fears Become Bigger than You and leave you without options.

Remember, Before Your Troubles Hit the Fan, Please Make Sure to Create Your Estate Plan!

 

Tips to Protect You from Fraud!!

Posted on August 3, 2022 at 11:10 AM Comments comments (472)

Tips to Protect You from Fraud!

 

If you’re purchasing a new home in Palm Beach County – whether it’s your first time, upgrading or downsizing –please protect yourself from possible fraud!!

 

Florida is not only one of the hottest housing markets in the country but it is also one of the areas most impacted by fraudulent activity!

 

Here are some suggestions to consider as you settle into your new home:

 

Tip #1: SIGN UP FOR PROPERTY FRAUD ALERTS.

 

Once you unpack a few essentials, take the first step to protect what is likely your greatest financial asset by registering at: https://www.mypalmbeachclerk.com/services/property-fraud-alert

 

This site helps monitor your name (and include your spouse or anyone else whose name may appear on the deed) in the Clerk of Court’s Official Records system. This way, whenever a document is recorded in Palm Beach County, you will receive an alert within 48 hours, detailing what was recorded.

 

Staying vigilant is crucial and signing up is simple: Just register with an email address and the Clerk of Court will handle the rest!

 

Tip #2: DON’T OVERPAY FOR A COPY OF YOUR DEED

 

Upon recording a deed, many homeowners then receive a very official-looking notice, which states that by paying $89 for their services, you can get copies of records of your property deed and/or other property records.

 

However, all of these documents can be retrieved and viewed for absolutely no cost whatsoever!!

 

100% FREE at: https://www.mypalmbeachclerk.com/records/official-records/official-records-search.

 

Not computer-savvy? Hard-copies are available from the Clerk of Court at only $1 per page!

 

Tip #3: KNOW YOUR PROPERTY’S VALUE

 

Every August, the Palm Beach County Property Appraiser notifies taxpayers of their property’s assessed and market values.

 

If you have a legitimate and reasonable belief that the assessment, classification or exemption status for your property is not accurate, you may (and should) file a Petition with the Value Adjustment Board at https://www.mypalmbeachclerk.com/departments/value-adjustment-board.

Being Educated, Prudent and Vigilant will all help prevent you from becoming a Victim of Exploitative Predators!

 

Most important, Congratulations on you on your new home and Welcome to Paradise!

 

Remember: BEFORE Your Troubles Hit the Fan, Please Create Your Estate Plan!!!

 

 

Nearly ten years ago...

Posted on May 2, 2022 at 9:30 AM Comments comments (3503)

"Sleeping through the night"...

Posted on April 25, 2022 at 9:05 PM Comments comments (367)

Nearly every Friday ...

Posted on June 4, 2020 at 12:10 PM Comments comments (10316)
Nearly every Friday I write a post, wishing everyone Shabbat Shalom, a peaceful weekend. Not this Friday, not after seeing such hurt unfold around us. In spite of the Beautiful Weather, the thrill & miracle of the successful SpaceX rocket launch, the outpouring of love & support over our sons' Graduations and our youngest's 18th birthday, a Very Dismal cloud cast a long shadow over our Celebrations. In a year of so many global tragedies and natural disasters from wildfires, airplane crashes, earthquakes, flooding, giant murdering insects and a pandemic, my Heart absolutely Aches over the one we created for ourselves.

The irony doesn't escape me that only a short while ago, Jews celebrated the holiday of Passover, a reminder to appreciate Freedom from Tyranny, a Renewal of Faith. Just this past week, we celebrated the holiday of Shavuot, not only when the 10 Commandments were given, but also a time, a distinction not to be forgotten, when we accepted these principles by which to lead our lives. The same beliefs that have been widely espoused through the centuries, the foundation of Christianity and Islam, as well. As an attorney, the genesis of the Rule of Law fascinates me, forming the structure of all my personal and professional endeavors.

Nonetheless, injustices, large and small, prevail. Anger, Frustration and Fear rule our actions, rather than Kindness, Forgiveness and Generosity of spirit. I am very much as guilty of this as anyone, losing my temper and patience way too often, nearly every day. The consequences of my interactions may not be as impactful and publicized as recent news. However, doesn't even a minimal amount of negativity and judgement contribute to the ripple effect of the hate and violence in our community?

Political, racial, economic and other differences of thought so miserably divide our country. We judge others on not isolating themselves enough, quarantining too much, standing too far or hugging others publically. All Republicans are idiots. All Democrats hold bleeding hearts. How can issues of racial & economic discrimination be resolved when we are intent on perpetuating conflict and discord?

This also extends to acceptance of ourselves and our own shortcomings, which must be as highly valued as extending it to others. As we each decry the travesties around us, before we point fingers at others, my own hope is to remember that disharmony begins within ourselves, in every situation. This remains a personal goal I often fail to reach and yet I keep trying to achieve. Wishing each of us a safe journey, filled with inner and external peace. Shavuah Tov, hopes for an inspired week! 

Can you imagine ...

Posted on June 4, 2020 at 11:20 AM Comments comments (617)
Can you imagine going through all of this craziness and not being able to read about it?!?

Thank you so much to the Palm Beach Bar, Brad Avakian, and Kristin Calder for providing a wonderful opportunity (and distraction!!) to help others in a non-virus related way. I read and gently critiqued essays written by adults wanting to improve their level of literacy. The best part?

The topic for each paper focused on Super Powers and which one the writer would pick, if given a choice. The responses were so imaginative & heart-warming. Beyond grateful to participate!! LiteracyPBC.org ❤️

Please keep sending me your feedback!

Posted on April 30, 2020 at 10:28 AM Comments comments (522)
Write your post here.

From Lesley Shirberg PBSO...

Posted on April 24, 2020 at 9:04 AM Comments comments (560)
From Lesley Shriberg, PBSO:
Please read the below message from Sheriff Ric Bradshaw. Unfortunately, there are unscrupulous people out there just ready to take advantage of people in our community. 
The very best way to NOT get scammed is to follow the below advice. Stay strong, safe and well. 
We are always here to assist you!

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DEFICIENCY JUDGMENTS

Posted on January 4, 2015 at 12:34 PM Comments comments (1368)
Please be aware that traditionally if the bank takes your home in foreclosure by short sale or a Deed In Lieu, and you have NOT had the deficiency amount waived, then the Bank (or company to who they sell that debt) WILL likely pursue that legal action against you. You may not have a home for them to take but they can still continue to litigate against other assets to satisfy the amount owed.

However, now under the recent law passed in Florida, deficiency claims are addressed as follows:  

95.11 Limitations other than for the recovery of real property.—Actions other than for recovery of real property shall be commenced as follows: 

(2) WITHIN FIVE YEARS.— 

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and except for an action for a deficiency judgment governed by paragraph (5)(h). 

(5) WITHIN ONE YEAR.— 

(h) An action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-familydwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure. 

Section 2. The amendments made by this act to s. 95.11, Florida Statutes, apply to any action commenced on or after July 1, 2013, regardless of when the cause of action accrued. However, any action that would not have been barred under s. 95.11(2)(b), Florida Statutes 2012, before the effective date of this act must be commenced within 5 years after the action accrued or by July 1, 2014, whichever occurs first.

This means that in Florida, if your foreclosure sale occurred before July 1, 2013, the lender had until July 1, 2014 to file suit to collect on that deficiency. If it occurred after July 1, 2013 then the time period is 1 year from the date that the certificate of title is issued to the buyer at the foreclosure sale, not the foreclosure sale. Typically the difference in timing between the sale and the certificate issued is approximately a week or so, but this could be longer.

2014--a year filled with awards, recognition and good works!

Posted on December 31, 2014 at 3:14 PM Comments comments (443)




























WOMAN OF DISTINCTION AWARD 2014

Posted on October 4, 2014 at 11:26 PM Comments comments (572)
I am so honored and thank Soroptimist International of Boca/Deerfield Beach for recognizing me as their Woman of Distinction 2014, in the Professional category. The breakfast at Boca West Country Club was amazing and I am truly thrilled to have won this recognition!

Can I afford to pay a foreclosure attorney or even need one?

Posted on August 31, 2014 at 4:50 PM Comments comments (548)
Can I afford to pay a foreclosure attorney
Do I even need one?
 
This truly depends on your goals and objectives with respect to the property. If you are planning to just walk away from the property, then you may still want to negotiate a deficiency waiver,which an attorney can do on your behalf. If you want to stay in the home as long as possible and, hopefully, modify the loan terms, an attorney can again be very useful. When evaluating this situation, you must primarily decide if you can afford NOT to have a skilled and experienced lawyer defending your foreclosure action.

Many people attempt to enter the modification process and mistakenly think that they once they submit modification paperwork to the Lender/Bank, that homeowners do not need to then also address the legal side of the foreclosure process. 

This is NOT TRUE!  

A Lender/Bank is a monster with many heads and you may find yourself in the unfavorable position of not getting the modification you wanted before the Lender/Bank's attorneys have managed to take the legal steps necessary to foreclose upon your property.  

If you are facing foreclosure, either through Probate or for your own property, PLEASE do not attempt to handle this on your own. You would not attempt to re-wire your home without an experienced, licensed professional to assist you. Likewise, going through the modification and foreclosure process without a bar-recognized attorney to represent your interests in the property can prove electrifying and highly dangerous! 

The consultation won't cost you a thing; handling this on your own likely will cost more than you saved in attorneys' fees!

Recognized by the Florida Association of Women Lawyers

Posted on June 12, 2014 at 7:42 PM Comments comments (647)
Feeling very honored today to be recognized by the Florida Association of Women Lawyers as an outstanding member for my contributions this year. Thanking all of my colleagues for choosing me for this award!!

10 THINGS YOU SHOULD KNOW ABOUT FORECLOSURE DEFENSE

Posted on July 20, 2013 at 10:43 PM Comments comments (874)
1.  How long will a foreclosurecase last before the lender takes my property and how much notice will I receive?
 
It can take only 3-4 months for an uncontested foreclosure to be finalized once a borrower is served papers until the court sale. If you choose to not put up any type of defense, it can become very easy for your lender to take your property.  However, in my experience, when the borrower fights back and defends a foreclosure action, the case will almost certainly last beyond a year in court. The duration of any case depends on the facts and legal issues involved, as well as other factors.    Rest assured, nothing happens suddenly in a foreclosure action, unless you do not defend yourself against it!
There will NOT be a sudden knock on the door by the Sheriff to kick you outwithout plenty of advance notice, especially if the borrower has an attorney defending the case.
 
2. Can my lender change the locks on my property during the foreclosure action?
 
NO!!!!  A lender does not have the right to take possession of a property until the end of the foreclosure process when the lender acquires legal title. Only if the lender has confirmed that the property has been abandoned and is concerned about protecting their collateral, will the lender possibly will change thel ocks. It is illegal for lenders to lock people out of their homes when they’re still living there and would give rise for a cause of legal action against the lender.
 
3. Should I continue paying property taxes, insurance and HOA dues when my property is in foreclosure?
 
This depends on your goals and objectives with respect to the property. If you areplanning to just walk away from the property, there is less incentive to pay these bills. If you are seeking a loan modification to keep the property, there is more reason to pay. In Florida, a property owner cannot lose title becauseof a tax delinquency until 2 years have passed following the failure to pay. Lenders will usually buy a new insurance policy if that lapses and is not renewed; the lender will add this cost (which is usually a much more expensive policy) to the final judgment amount, but it is in your own interest as a homeowner to make sure that the policy is replaced. It is also always a good idea to stay current with your association dues for multiple reasons, including the fact that an HOA can foreclose just like a lender for failure to pay dues and it’s good to avoid another legal battle, one that may end quicker than the initial one with the lender!
 
4.  If I own a rental property that is currently subject to a foreclosure action , will I be able to continue renting it? 
 
Yes!!!  In Florida, the owner of a rental property may continue renting it even if it is subject to a foreclosure case. Tenants are legally required to pay the rent during that time. In fact, the borrower/owner only loses the right to collect rent upon the conclusion of the case if title is transferred. However, we suggest that you should be completely honest with your tenant and fully disclose the legal status of that property, plus explain what is being done to defend the case against the foreclosure action.  
 
 Beware: Your lender CAN file a “Petition for Assignment of Rent" if it doesn’t like the fact that you, the borrower, is collecting rent and not paying on the mortgage. This petition asks the court for an order requiring your tenant to pay the lender directly.  Good news is that lenders rarely, if ever, pursue this relief. Yet, it is another important reason why you should have a lawyer represent you during the foreclosure, to completely safeguard your interests.
 
5. Can my lender garnish my wages?
 
Most foreclosure properties are “upside down” (worth less than the mortgage debt owed).This means it’s virtually certain that unless a loan modification agreement is reached, your lender will suffer a loss at the conclusion of the foreclosure. Whether your lender receives money through a short sale or takes title to the property, your lender will not be compensated for the full value of the debt the borrower owes. When this happens, your lender may pursue a “deficiency judgment” against you, the borrower. This means that your lender can try to take certain assets belonging to you, as borrower, though there are many exceptions known as exempt assets that are off-limits. The most common exempt assets are your homestead property (only if the foreclosed property was a second home or investment property) and retirement accounts, such as 401K and IRA. Florida is a debtor-friendly state and wage garnishment can be challenging to any creditor. For example, if the debtor qualifies as “head of family” by earning more than fifty percent (50%) of the household income,garnishment is prohibited. A borrower concerned about a deficiency action should consult an attorney for asset-protection advice.
 
6.  What is a "Deed in Lieu of Foreclosure"?
 
This is a settlement agreement with a lender where the property owner/borrower signs a deedt ransferring title to the lender in exchange for not filing the foreclosure or dismissing a case that’s already been filed. The "deed in lieu" may be a good settlement option for many borrowers willing to walk away.  However,in this instance, it’s important to try to negotiate certain conditions in return for giving the property away and allowing the lender to avoid the foreclosure process, such as a deficiency waiver. This is a promise by the lender not to pursue the assets of the borrower in satisfaction of the deficiency between the value of the property they’re taking and the debt still owed. Unless the lender affirmatively waives such a right, you will still owe the remaining amount demanded in the foreclosure action!
 
7. Can a second mortgage or home equity line lender also foreclose on my property?
 
Any lender with a mortgage or equity line in second position may foreclose, butthey rarely do so because they cannot “jump over” the first mortgage lender. Asecond mortgage foreclosure may result in title to the property going to thatlender, but subject to the first mortgage in front of that lender. For thisreason, it’s more common for a second lien holder to file a simple collectionaction against the borrower, as if it were unsecured debt, like a credit card.In this scenario, the lender would go after any of your assets that it canfind. Note: In a short sale, all lienholders, including second mortgage lenders and Home Owners Associations, mustapprove of the payoff trickling to them for the deal to close.
 
8. What happens if the lender can’t produce the original promissory note?
 
This issue has received much media attention, but usually the story is incomplete.It is so common for lenders to lose original notes that there exists a remedy under Florida law which permits a foreclosing lender to rely on a copy insteadof the original. However, this is not automatically granted by the court, and the lender IS required to lay the proper foundation to enforce a lost note.That means, at a minimum, the lender must produce a copy, then convince the court that the foreclosure should be permitted to move ahead without the original. Unless the borrower is represented by an experienced and knowledgeable attorney, the court may very likely accept whatever the lender’s attorney argues, in respect to enforcing that lost note.
 
9. Should I file Bankruptcy if my property is subject of a foreclosure action?
 
It’s a common misconception that filing bankruptcy is necessary, or even a right thing to do when one is in foreclosure. Bankruptcy is not right for everyone and it won’t make a foreclosure go away, although it can delay the process somewhat.There are circumstances when a Chapter 7 liquidation or Chapter 13 reorganization may be a sound strategy, especially when the borrower has a great deal of debt apart from the mortgage, but it should not be used as a mere tool to stall a foreclosure. Anyone contemplating a bankruptcy should immediately seek the consult of an attorney experienced in handling such matters.
 
 
10.  Can I afford to pay a foreclosure attorney or even need one?
 
Yet again, this depends on your goals and objectives with respect to the property. If you are planning to just walk away from the property, then you may still want to negotiate a deficiency waiver,which an attorney can do on your behalf. If you want to stay in the home as long as possible and, hopefully, modify the loan terms, an attorney can again be very useful. When evaluating this situation, you must primarily decide if youc an afford NOT to have a skilled and experienced lawyer defending your foreclosure action.
 
 
 

HOA'S MAY LOSE RIGHT TO FORECLOSE ON HOMEOWNERS!

Posted on June 17, 2013 at 2:16 PM Comments comments (597)
Important to Florida Homeowners and Real Estate Attorneys: Seemingly, a brief reading over FLORIDA’S NEW FORECLOSURE BILL HB 87 indicates that condominium or homeowner’s association will not be able to validly assert a cause of action for foreclosure against homeowners!  Line 90 of the bill actually reads as:
 
 702.015 Elements of complaint;
 
2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives…MUST:
 
(a)Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or
(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s.107 673.3011.
 
 
Since condominium and/or HOA liens are, by their definition, “other liens” other than mortgagees,it would seem that a condominium and/or HOA CANNOT COMPLY WITH EITHER OF THE “A” OR “B”  SECTIONS, as required. According to the bill, unless the foreclosure action is initiated by the mortgagee itself, an HOA CANNOT foreclose!