Wednesday, June 8, 2011

On the Lighter Side: Florida Consumer Levies on Assets at Local Bank of America Branch

I've been told that the subjects we usually discuss here are boring to many readers. With that in mind, it's nice to be able to post something funny (ok, it's probably still boring).

I recently read a story on naked capitalism about a Florida consumer levying on the assets of Bank of America to satisfy an attorney's fee award. The bank instituted a foreclosure case that it shouldn't have (hard to believe, I know), because the house they were seeking to foreclosure had actually been purchased cash. The homeowner obtained an attorney's fee award based on the meritless lawsuit, but the bank didn't pay (again, shocking). As a result, the homeowner invoked its rights under Chapter 56, Florida Statutes, which we encourage our creditor clients to consider under certain circumstances, and sent the sheriff to a local bank branch to levy upon the property there. At that point, as I understand it, the bank manager cut a check for the attorney's fees.

The story is funny to me, because it represents a reversal of the roles typically played by consumers and institutions; but there is also a lesson to be learned from it: creditors and debtors alike need to be mindful of their rights and available remedies.

Tuesday, June 7, 2011

Florida Statutory Health Care Reimbursement Dispute Resolution Process Held Constitutional


Recently, a Florida court considered the constitutionality of the dispute resolution process outlined in Fla. Stat. § 408.757 (2010). That section allows a medical provider or health insurer to submit disputed claims for review and determination by an independent organization appointed by The Agency for Health Care Administration (AHCA).

After Maximus (the organization chosen by AHCA) issued a decision favorable to the healthcare providers and ACHA adopted Maximus's decision, Blue Cross Blue Shield of Florida (BCBS) appealed the decision to the First District Court of Appeals, challenging the statute's constitutionality. The court held that inasmuch as the statute gave BCBS the right to withdraw from the dispute resolution process and file a lawsuit at any time, the statute passed constitutional muster and BCBS would be bound by Maximus's decision. The full opinion can be read here.

Providers and health plans should be aware of their rights should a payment dispute arise. In addition to the legal rights existing under ERISA and the Florida HMO Act (and other state law), alternative dispute resolution may be available, and is often a successful tool in amicably resolving payment disputes, both under contracts between the provider and the payor and under non-contracted provider payment rules.

Thursday, June 2, 2011

Florida Court Holds that Creditor, Not Creditor's Attorney, Must Sign Sworn Denial of Garnishment Exemption

A very recent ruling by Florida's Fourth District Court of Appeals discusses the procedure for denying a judgment debtor's head of household exemption to garnishment, and spells trouble for creditor's attorneys, especially attorneys representing major banks and credit card companies. At issue in Caproc Third Ave., LLC v. Donisi Ins., Inc., ___ So. 3d ____ (Fla. 4th DCA June 1, 2011) (pdf), was Fla. Stat. § 222.12, which provides that,
"When such an affidavit [of head of household] is made [by a judgment debtor facing a writ of garnishment], notice of same shall be forthwith given to the party, or her or his attorney, who sued out the process, and if the facts set forth in such affidavit are not denied under oath within 2 business days after the service of said notice, the process shall be returned, and all proceedings under the same shall cease. If the facts stated in the affidavit are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court from which the writ or process issued, in like manner as claims to property levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the process until released by the judgment of the court which shall try the issue."
The creditor's attorney attempted to file an affidavit denying the exemption himself, rather than having his client do so. Most creditors attorneys that we know have in the past done it that way. After this case, however, that practice appears to be no longer viable. The court ruled that the attorney was not "the party who sued out the process," and therefore he could not sign the affidavit of denial. As a result, the writ of garnishment was immediately dissolved without the need for an evidentiary hearing. The court also noted that the affidavit filed by the attorney was insufficient because he himself had no basis for personal knowledge as to the defendant's claim of exemption.

As a practical matter, given the strict time constraints for filing the sworn denial - 2 days - the requirements imposed by this case will make it difficult for the attorney who represents a hard to reach client to defeat a claim of head of household exemption [regardless of the claim's merit].

Friday, May 27, 2011

Florida Legislature Updates Limited Liability Company (LLC) Statute in the Wake of Last Year's Olmstead Decision of the Florida Supreme Court

Asset protection attorney Jonathan Alper, Esq. has posted an article on the Florida Asset Protection Blog reporting that the Florida Legislature has amended the LLC Statute to limit the reach of the holding of the Supreme Court's decision in Olmstead v. Federal Trade Commission, 44 So. 3d 76 (Fla. 2010), which we previously blogged about here.

The holding expanded the remedies available to creditors of the members of an LLC to include the forced sale of the member's interest. The new legislation limits application of the Olmstead remedy to single member LLCs only. It provides that the charging lien is the only remedy available to creditors of a member of a multi-member LLC.

The new legislation can be viewed here. Prior articles discussing Olmstead can be read here, here, and here.

Tuesday, May 24, 2011

United States Supreme Court Expands Remedies Available to Healthcare Providers and Patients Under ERISA


The United States Supreme Court recently ruled in CIGNA Corp. v. Amara, 563 U.S. ____, 348 Fed. Appx. 627 (May 16, 2011), that a fiduciary of an Employee Benefits Plan (including a Health Plan) can be sued for unpaid benefits under ERISA § 503(a)(3). Previously, courts had been reluctant to order payment of money under this section, which by its terms authorizes "other appropriate equitable relief," on the ground that the payment of money was traditionally a legal remedy, not an equitable one. The Supreme Court has now dismissed that idea, discussing in detail the history of courts of equity, and stating that, "[t]he power to reform contracts (as contrasted with the power to enforce contracts as written) is a traditional power of an equity court, not a court of law," and further, "[e]quity courts possessed the power to provide relief in the form of monetary compensation for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment." Therefore, a suit may now be maintained under § 503(a)(3) for reformation of a contract and for the payment of money, among other things.

This holding is of utmost importance to healthcare providers and patients who have been denied payment by a health insurance company. The only recourse for payment of benefits prior to this ruling was a lawsuit under § 503(a)(1)(B) for wrongful denial of benefits. But this lawsuit could only be brought against the Plan itself, and not necessarily against a plan administrator or fiduciary. Now, it would seem, recourse is available against the plan fiduciary as well as the Plain itself.

Healthcare providers, including hospitals, ancillary care providers, physician practice groups, and individual practitioners, are encouraged to carefully follow up on denied claims, and to seek third party review wherever possible. Medical Accounts Systems provides this service on a contingency fee basis (a fee is only owed if recovery is made), and when necessary, Jorge M. Abril, P.A. files suit in Federal Court to recover payment for services provided to ERISA participants and beneficiaries.