Christopher Douglas Smith's Answers

What evidence is allowed to support a MTD?

Generally no. A motion to dismiss is evaluated on the allegations in the Complaint solely to determine if they are legally sufficient. The Court, for purposes of the MTD, will assume the allegations to be true, and will not hear evidence as to the subject matter of the complaint. The only issue properly before the Judge will be whether or not the Complaint states sufficient facts, which if true, would constitute a valid cause of action. If you want to introduce evidence, you may wish to...

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Do I have to pay home owner's insurance for home discharged in Chpt 7 but not yet foreclosed on?

I was surprised by the $600 per month premium... that is a very high premium even for force-placed insurance. You might want to farm that insurance around to see about obtaining a less expensive policy. My clients ask me this quesiton all the time, and I always tell them to balance the risks. You are the title owner of that property until the foreclosure sale, and while you are the owner, you are potentially liable for any injuries sustained by persons on your property. Granted, the...

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MY HUSBAND AND I RETAINED A BANKRUPTCY LAWYER 2 YEARS AGO ALTHOUGH WE HAVE NOT ACTUALLY FILED YET. CAN MY CREDITORS OR THE

I will address this under FL law, although the answer may be different in another State. First, if you should file bankruptcy, then your inheritance would likely be, in part, reachable by the trustee (in a chapter 7) or part of the estate (in a chapter 13). You have a property right in the inheritance, and although you have not yet received it, it is still a right that can be claimed by the trustee. The life insurance was exempt while your father lived, but now that he has passed, there is...

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Can a debt collector garnish my kids bank accounts in florida?

If the accounts are set up as pure joint accounts, then the money is exposed. You will want to set the accounts up as Uniform Tranfer to Minors Act accounts, also called UTMA accounts. This is very easy to do. I would not continue to deposit monies into those accounts while this judgment remains unsatisfied. Another great, exempt savings vehicels is the Florida Pre-Paid College Fund. Monies invested there are exempt from creditor claims.

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Can a doctor/clinic get in trouble if they never asked me if I was pregnant while doing an xray on me?

They may have been negligent in not asking you, but you also may not have sustained any damages. And if you did sustain damages, proving that your loss was tied to an x-ray many months earlier will be very difficult. This would not be an easy case without more direct evidence of damage to you or your baby. This notwithstanding, you still might want to report the clinic to the Board of Health for inproper practices. You wont get any money for doing this, but you might cause the clinic to...

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Are full copies of trust given to title companies for title insurance?

Lawyers and title companies should be very resistant to the idea of filing trusts in the public record. One of the main purposes of a trust is privacy, and that would be lost by making the document available to the public eye. Under the current state of the law, there is almost no reason to ever have to file a trust in the official records. At worst, an abstract of trust which summarizes the key provisions could be filed, but even those are generally unnecessary for real estate purposes....

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Judgements and being taken to small claims court from a collection agency for medical bills.

Generally, as the debt seasons (ages), you will find that collection agencies become more and more reasonable with their settlement offers. There is no magic formula, but in my experience, debts that exceed 3 years in age are often settled at 30%. Also, collection agencies threaten lawsuits as a standard practice, but only a moderate percentage of those threats are actually carried out. Do not be threatened into taking action that would cause you significant burden and worsen your situation....

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Can a Creditor file Civil Law Suit against husband for CC balance, if wife only obtained it in 2007. Unemployed, can't pay??

Generally, no, the husband should not be liable. These cases are generally determined under contract, and if he is not on the contract (i.e., that application for the credit card), then he is not liabile. There are some common law exceptions, if he used the card or received some benefit from it (which is hard to prove), then in exceptional cases he could be liable, but that would be rare.

I just received notice to take deposition upon oral examination (no subpoena) on civil case for collection way passes sol

If the lawsuit is filed in Florida, then you should answer the complaint and include an affirmative defense of statute of limitations. Then, later, you can file for summary judgment to obtain a favorable outcome. I would also file an Offer in Settlement per Rule 1.442, which could enable you to recover attorney's fees if you have incurred such fees. You might also consider filing a sanctions motion under Fla. Stat. 57.105. Plus, if the creditor knew or should have known that the SOL had...

What are the exemptions to use to keep my car ch7/FL?

You get a $1000 wildcard to apply to any personal property, and $1000 for your car. You can stack to get $2000 total, but that would leave you with no exemption on your household items. If you claim or benefit from a homestead, which it sounds like you do, you cannot receive the additional $4000 super-exemption. Given this, it sounds like your car will have substantial value for the estate, meaning that the trustee will likely seize it to sell. You might be able to work out a repurchase...