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Can I recover my money taken in an unauthorized transfer from my bank?

Likely yes!

Under the Electronic Fund Transfer Act, you first must notify your bank about the unauthorized transfer. Your bank then has ten days to investigate the issue. Suppose the bank can’t complete its investigation within ten (or 20) business days as applicable. In that case, it must generally issue a temporary credit to your account for the disputed transaction amount, minus a maximum of $50, while it continues to investigate.

Suppose your bank determines that the transactions were authorized. In that case, it must provide you with written notice before taking the money they credited you out of your account during the investigation.

In some situations, however, your bank does not have to issue a temporary credit. For example, it can require you to provide written confirmation of the error if you initially provided the information by telephone. If they ask you to follow up in writing but you do not do so within ten business days, the bank is not required to credit your account temporarily during its investigation.

August 14, 2024

Someone hacked your bank account! Will the bank refund the money you lost?

The short answer is maybe.

First, we need to know where to look for answers. Florida Uniform Commercial Code Article 4A deals with electronic funds transfers. This law outlines the bank’s and the customer’s rights and responsibilities and explains who’s responsible for unauthorized transfers.

Under this law, banks must refund unauthorized transfers for up to one year after they’ve notified you (typically through your monthly account statement). This allows you to spot any suspicious activity and report it to the bank.

But there’s a catch. According to the law, a bank can sometimes shift the risk of loss for unauthorized transfers to you.

Here’s how:

The transfer is considered authorized if you or your authorized agent approved the transaction (even if it was by mistake).
Suppose you and the bank agreed to use a security procedure (like a PIN) to verify payment orders, and the bank followed that procedure correctly. In that case, the transfer is also considered authorized.
Additionally, suppose the security procedure is deemed “commercially reasonable,” and the bank accepted the transfer in good faith and followed all agreed-upon instructions. In that case, they might not be liable for refunding the money.

The idea behind this law is that the best way to prevent fraudulent transfers is by using robust security measures. If a bank doesn’t have a reasonable safety procedure or if it has but fails to follow these procedures and accepts an unauthorized payment order, it would have to take a loss.

So, whether or not you’ll get a full refund depends on whether the bank followed a reasonable security procedure.

What is the purpose of setting up a trust?

Florida’s Chapter 736, known as the Florida Trust Code, governs the state’s revocable trusts, or “living” trusts. The code outlines the legal requirements for creating, administering, and terminating trusts. However, the purpose of a trust should be mentioned in the Act. Then, what are the proper benefits of a trust?

Avoid Probate Process

–Why should you avoid probate?

It is a common belief that revocable trust avoid probate. The first question you should ask is why we need to avoid probate. Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to their beneficiaries. There are two types of probate administration under Florida law: formal administration and summary administration. Probate can become rather expensive, and the main cost in a Florida probate is usually the lawyers’ fees. And since, for most probate cases, Florida rules require a probate attorney, attorney fees are generally an inescapable part of the probate process.

According to Florida law, when the estate’s compensable value exceeds $40,000 and is not eligible for summary administration, a formal administration of an estate must occur.

How Does a Revocable Trust Avoid Probate?

A revocable trust avoids probate by effecting the transfer of assets during your lifetime to the trustee. This avoids needing the probate process to transfer after your death. The trustee has immediate authority to manage the trust assets at your death; an appointment by the court is unnecessary.

The “funding” of a revocable trust is critical to avoid probate successfully. Those who do not fully fund their trusts often need a probate administration for the non-trust assets and a trust administration to distribute them thoroughly. Because the revocable trust may not altogether avoid probate, a simple “pour over” will is needed to transfer any probate assets to the trust after death.

Currently, there is no estate tax in Florida. The state abolished its estate tax in 2004

Avoid Estate Planning Tax?

Many think of trust as a vehicle to avoid estate planning tax. Well, does a Revocable Trust Save Estate Taxes? Even though revocable trusts are often credited for saving estate taxes, it is only partially accurate. Although the trust can be drafted to minimize the effect of estate taxes, the effect is not that of a trust itself. What trust can do, will do.

Avoid Elective Shares?

Trust can protect the Elective Share. Again, it needs to be more accurate. Florida law provides that a surviving spouse is entitled to a minimum portion of the decedent’s estate, called elective share. This elective share equals 30% of the estate, including certain assets passing outside of probate. Generally, assets in a revocable trust will be subject to the elective share. There are some exceptions to the elective share; the spouse can waive the right to receive an elective share.

Avoid Probate Process

According to Florida law, when the estate’s compensable value exceeds $40,000 and is not eligible for summary administration, a formal administration of an estate must occur.

In comparison with the compensable value of an estate, the following examples are considered probably reasonable fees:

For estates of $40,000 or less: $1,500
For estates between $40,000 and $70,000: $2,250
For estates between $70,000 and $100,000: $3,000
For estates between $100,000 and $900,000: 3% of the estate’s value
For estates between $1 million and $3 million: 2.5%
For estates between $3 million and $5 million: 2%
For estates between $5 million and $10 million: 1.5%
For estates of $10 million and above: 1%

Although trust usually contains a pour-over Will, which states that any assets or property owned by the trustor at their death will transfer (or pour over) into the trust, a pour-over will, like all wills, must go through probate. The good news is the process is much simpler and cheaper.

How Does a Revocable Trust Avoid Probate?

Business Due Diligence: Buying Business, What Are You Buying?

Between starting a business from scratch and buying a company, you decide to buy a business. Can you explain why? Let’s say you know you should choose to buy Business Assets because buying ownership means you buy in all the debts. You are brilliant. The further question is, what are the business assets you are buying?

The benefits of buying a business are obvious: existing and future clientele. Those are the results. The goodwill of a company and the tangible concept of intangible business assets you are acquiring go beyond that. A company’s business assets usually consist of tangible assets, such as land, buildings, equipment, and inventories, and intangible assets, such as brand recognition, customer relationships, and technologies.

That said, before you sign a general buy and sell agreement, you need to know precisely what assets are being sold. This involves due diligence work. Business Due Diligence Work involves reviewing and verifying the seller’s financial and managerial documents to determine the real value of the purchase and the risk that comes with it.

The business’s future potential can be measured based on experience and real numbers rather than on financial projections (often overly optimistic).

An existing business is already generating income, reducing the need for extensive start-up capital.
An existing business already has trained and knowledgeable employees, current customers, and vendors.
It is easier to obtain or transfer existing licenses and permits from a business that has them in place than to start the process from square one.
Banks and other lenders may be more likely to loan money to purchase a going concern with a strong track record instead of capitalizing on a startup venture.
Some businesses will help finance and train a new owner to keep the operation from stagnating or losing customers during the transition.

Buying a Business – The Team

Suppose you are considering buying a business and assembling an experienced and knowledgeable team to help and advise you. In that case, your team may include a business broker, an accountant, and an attorney.

Your broker – who should be a member in good standing of the Business Brokers of Florida (BBF), the Florida Business Brokers Association (FBBA), or the International Business Brokers Association (IBBA) – will help you locate and acquire the right company at the right price; your accountant will lead you through the due diligence process and advise you on things like taxes and record keeping; and your business attorney will help you with the organizational and legal documentation.

Think of the time you bought your house: you found your real estate agent through the recommendations of friends and family, and then you thoroughly vetted them to make sure that this person knew the business, the market in which you hoped to buy, and the buying process itself. Of course, your agent also made sure to quiz you on all the essential topics: where you wanted to live, what kind of house you were looking for, how much you could afford, what your financing options were, etc.

In much the same way, you will replicate the process with your business broker. You will make sure that they are competent, trustworthy, and professional. In return, your broker will want to know why you want to buy a business, what kind of business you are looking for, where you hope it is located, what your experience is in the field in which you are searching, what you can afford to spend, what financing options you have in mind, etc., etc., etc.

Buying a Business – The Search

Based on your qualifications, desires, and ability to finance a sale, your broker will begin providing you with summaries and financial information from businesses for sale that meet your criteria. (For information about selling a business, click here.) You must sign a Confidentiality Agreement promising not to disclose any proprietary information. Then, you will be put in touch with qualified sellers so that you can tour their facilities and assess their business’s strengths and weaknesses.

Remember that in most cases, buying an existing business needs to be kept confidential from current employees, customers, suppliers, landlords, and lenders. Therefore, it is common for you to tour a prospective business after working hours so that confidentiality remains intact. Premature disclosure of a sale, or even the notion that a business is looking for a new owner, can hurt its existing operations.

Buying a Business – Due Diligence

Once you have decided upon a business to buy, have made an offer that is provisionally accepted, and have a purchase agreement, you will begin the process of due diligence to make sure that the business you are planning to buy is as financially sound as the seller has represented. This is where your accountant and attorney can be beneficial because you must review extensive financial information and many different documents. The bottom line is that before you buy an existing business, you must determine whether you will ultimately make any money from it.

If the business is a corporation, you will need to see its articles of incorporation and all of its past reports. For any business, you will need to examine, at the very least,:

All of its accounts and financial statements going back at least several years
Its auditors’ and credit reports
A schedule of any debts, liabilities, inventory, leased equipment, capital sales and purchases
An analysis of its expenses and accounting methods
Copies of leases, deeds, mortgages, titles, and insurance policies
An accounting of any owned intellectual property, patents, trademarks, and/or copyrights
A list of all employees, including all salaries, benefits, retirement plans, insurance, workers compensation, and unemployment claims, as well as a history of any labor disputes or pending legal actions
Copies of all licenses, permits, and governmental correspondence
All tax records
All current contracts, marketing and sales agreements, and purchasing policies
A summary of all existing products or services
A schedule of the company’s largest customers
The company’s current advertising programs, marketing budgets, and marketing materials
The company’s professional associations, including law and accounting firms and any other similar entities engaged by the company
All news articles and publicity materials relating to the company

In addition, Florida law places the burden upon a buyer to ensure that the seller has paid all of the business’s sales taxes.

Other items you may want to consider include:

Whether or not you will be able to obtain some amount of financing from the seller
Having a non-competition clause in place preventing the seller from competing with the business after the sale
Whether the seller will agree to train the new buyer on how to run the business effectively
Having the right to terminate the purchase agreement for any reason during the due diligence period with a fully refundable deposit that is kept in escrow pending closing

How complicated is the L1 Visa Petitioning Process?

The L-1A visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This visa also enables a foreign company that still needs an affiliated U.S. office to send an executive or manager to the United States to establish one.

You may be qualified for an L-1A visa if

The US company is either a parent company, a branch, a s, subsidiary or an affiliate company to a foreign company;
The US company is or will be doing business directly or through foreign companies in the United States and in at least another country. That means the foreign company is doing business, and the US company’s current or future business endeavors are related to those of the foreign company.
The beneficiary must have been working for a foreign company for one continuous year within the three years immediately preceding their admission to the United States and
The beneficiary is seeking to enter the United States to provide service in an executive or managerial capacity for the US company.

If the US company is a new office,

The US company has secured sufficient physical premises to house the new office;
The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition and
The intended U.S. office will support an executive or managerial position within one year of the petition’s approval.

The compilation lies in the terms.

What is managerial capacity?

What is executive capacity?

What constitutes doing business?

What constitutes an affiliate company?

How do you prove you will support a managerial or executive position within one year of approval?

In light of the difficulties in presenting your situation to meet those standards, the L-1A petition needs to be simplified.

How Hard Is It to Receive a National Interest Waiver?

What is being waived?

Individuals seeking employment-based immigration must apply for work authorization before filing the petition. The application needs to be filed by a U.S. employer. That is to say, the alien must have had a job offer. USCIS’s updated guidance dated Jan. 21, 2022, specifies that the national interest waiver is the waiver of the labor certification requirement in Employment-based immigration classification. Usually, this process takes a long time.

The matter of Dhanasar was a significant decision by the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) in 2016. It revised the criteria for obtaining a National Interest Waiver (NIW) under the EB-2 category of the Immigration and Nationality Act.

Before Dhanasar: The NIW process was often complex and required a high burden of proof, making it difficult for many qualified individuals to obtain a green card.

Dhanasar’s Impact:

Revised Criteria: The AAO established a new three-part test for NIW eligibility:
1. Substantial Merit and National Importance: The foreign national’s proposed endeavor must have significant merit and be of national importance.
2. Well-Positioned to Advance: The foreign national must be well-positioned to advance the proposed endeavor.
3. Benefit to the U.S.: It must benefit the United States to waive the job offer and labor certification requirements.
Broader Eligibility: This revised framework made NIWs more accessible to a more comprehensive range of individuals, including entrepreneurs and self-employed professionals, who may not have traditionally qualified for an NIW.

Overall, the Matter of Dhanasar significantly simplified the NIW process and made it easier for foreign nationals to obtain a green card based on their contributions to the United States.

However, obtaining an interest waiver is essential to prove, and hesitance is of national importance.

Temptation of a Template in Contract Drafting?

As a contract lawyer who has reviewed hundreds, if not thousands, of contracts drafted using a template, I have formed a love-and-hate relationship with contract templates.

Contract templates simplify our lives by allowing us to avoid reinventing the wheel. But the common assumption is all the wheels needed are in there. Unfortunately, many pick the template by title, trusting the terms that follow function to protect their bottom lines, and pay an astronautic price at the courthouse to learn that this is not the case.

Too many templates are not modifiable after review simply because they are the wrong templates for the business relationship. One example is the Independent Contractor Agreement. Many assume a rker becomes an independent contractor once you have a contract with the title. The law says it is different. The De apartment has issued regulations addressing analyzing whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. (FLSA) IRS has its regulations that define independent contractors. The genera rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.

Just like the doctor who googled my condition while warning me of googling my condition said, “Me googling is not the same as you googling,” a contract lawyer using a template is not the same as a business owner using a template because the former does not use them blind-folded. Please thi k twice before using a contract template.

So, your bank account was hacked. What are banks’ responsibility for scams?

You lost money after your bank accounts were hacked. So sorry. That must be devastating. Naturally, you hope your bank will do something about it, ideally refunding the money. Is it in your right to have your bank refund your money, or is it just wishful thinking?

The answer sits in the Electronic Fund Transfer Act. The Act provides important protections to consumers who suffer unauthorized withdrawals from their accounts. It limits the person’s loss to $50 so long as this person promptly notifies their bank that access to their account has been stolen, the law limits the person’s losses to $50.

In an ongoing case, the state of New York has sued Citibank for failing to respond adequately when people promptly told the bank that scammers had initiated wire transfers from the consumers’ accounts online. New York alleges that one person discovered that a scammer had changed her online banking password, transferred money from her savings to her checking account, and then stole $40,000 via wire transfer—all through Citibank’s online banking platform.

Citibank contends that the Electronic Fund Transfer Act doesn’t apply because the scammers ultimately used a wire transfer to take the money, and the Act contains an exemption for transfers made by banks “by means of” a wire service.

That’s incorrect. When a bank connects wire transfer capabilities to its online consumer banking platform and a scammer authorizes a transfer online, the Electronic Fund Transfer Act applies to the transaction except for the bank-to-bank portion of it.

The perfect marriage of E2 visa and Franchise

The U.S. is the land of opportunity. If you are a national of a treaty country, in other words, if your home country maintains a treaty of commerce, you may come and live in the United States when investing a substantial amount of capital in a bona fide U.S. business. Your family members are also eligible to follow you, as are certain employees.

Many always ask about the minimum investment for an E2 Visa. The answer is there is none. E2 visa requires substantial capital in a bona fide U.S. business. Whether an investment amount is significant depends on the cost of purchasing an established enterprise or establishing a new one. If the amount is sufficient to ensure a successful operation of the enterprise, it is substantial. The lower the cost of the enterprise, the higher, proportionately, the investment is, the more likely the investment will be considered substantial.

The best partner for an E2 visa is a FrancFranchiseranchise is a legal way for newcomers to minimize the learning curve by sharing the benefit of marketing efforts, management knowhow, and an established supply chain, without bearing liabilities of another because each francFranchisewned by individuals. For example, McDonald’s restaurants all share the same branding and similar menu items, but franchisees own them individually.

You may find the franchise business you like, sign the agreement, obtain their business plan, and show commitment by paying certain expenses. With the proper assistance, you will be qualified for an E2 visa. After you receive the E2 visa, you have a business to run and a new life to live, just like that.

Business Law Review: Lease to Own or Seller’s Purchase Money Mortgage ?

You have a “Contract for Sale and Purchase with Lease Provision”, sometimes common known for “lease to own agreement”. Pursuant to the contract, you pay a down payment, take possession of the property, and the balance is payable in a monthly payments and a balloon payment at the end of the . You also have the obligation to pay real estate taxes after the year of “sale”. You are entitled to a deed upon payment of all installments plus interest.

Unfortunately, after paying installments for a sinificant period of time, you defaulted. At certain point, you tendered to the seller the entire unpaid balance of the purchase price plus interest, and demanded a deed. The seller refused to accept payment or give a deed, and insisted that the buyer, because of his default, had forfeited further rights in the land.

The trial court in H & L LAND COMPANY, Inc. a case with the same fact pattern, agreed with the buyer’s position, and held that “the parties were in essentially the same position as if the seller held a purchase money mortgage to secure the buyer’s performance of the buyer’s contract obligations.”

The appellate court held that the vendor under a specifically enforceable installment land sale contract, who has received part of the purchase price and has given the vendee possession of the land and the benefits and burdens of ownership, is in essentially the same position as a vendor who has conveyed the legal title and taken back a purchase money mortgage, and he cannot unilaterally and summarily extinguish the vendee’s equitable title upon the vendee’s default.

What does this mean? It means a lease to own agreement is considered by the court to be a mortgage agreement between the buyer and the seller. As the result, the buyer is the owner of the property, not a tenant to the seller, and if the buyer defaults, the seller must initiate a foreclosure proceeding, as opposed to an eviction process. If the buyer tenders the full payment, the seller must deliver the deeds. This is called right of mandatory redemption.

Business Law Review: FTC’s Non-Compete Clause Rule

On April 23, 2024, Federal Trade Commission issued Final Non-Compete Clause Rule comprehensively banning post-employment non-compete clauses between employers and their workers. The Final Rule will be effective in September.

The final rule provides that it is an unfair method of competition for persons to enter into non-compete clauses with workers on or after the final rule’s effective date. The final rule defines “non-compete clause” as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work with competition or

(2) operating a business as a competition, after the conclusion of the employment that competes with the employer.

With respect to non-competes entered into before the effective date, the final rule

adopts a different approach for senior executives than for other workers. For senior executives, existing non-competes can remain in force, while existing non-competes with other workers are not enforceable after the effective date.The final rule provides no definition for executives.

The final rule preempts state laws that authorize non-compete clauses.

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