Connect with us

First Amendment

Florida Bar Lawyer Grievance and Discipline Process

Lately, there has been a strong push from lawyers, judges, Florida Bar leaders, and the Florida Supreme Court to take a more aggressive stance against professionalism related complaints.

Published

on

The Bar’s procedure for investigating and prosecuting disciplinary complaints

FEB 1, 2014 | REPUBLISHED BY LIT; JUNE 2, 2021

There are a number of things that can get a lawyer in hot water with The Florida Bar’s Lawyer Regulation Department. While any violation of the rules of professional conduct could warrant a disciplinary complaint, some of the more common transgressions investigated by The Florida Bar include:

* Theft of client funds,

* Misrepresentation and other dishonest conduct,

* Failure to comply with trust accounting rules,

* Commission of a crime (in particular a felony),

* Failure to communicate with clients,

* Lack of diligence/competence,

* Conflicts of interest,

* Improper transactions with clients (for example, naming the lawyer as a beneficiary in a client’s will),

* Charging excessive fees,

* Unprofessional conduct with opposing counsel and disrespect to the judiciary.

Lately, there has been a strong push from lawyers, judges, Florida Bar leaders, and the Florida Supreme Court to take a more aggressive stance against professionalism- related complaints.

If trends continue, I would expect to see the prosecution of these types of complaints to increase in the upcoming years.

Stage 1: Complaint Intake & Preliminary Investigation

The process starts when the Bar receives a complaint against a lawyer. Clients, opposing counsel, or judges may file complaints, or the Bar may discover potential misconduct through other means, such as media reports or notice of a bounced check from a lawyer’s bank.

Not all of the thousands of inquiries and complaints the Bar receives each year are prosecuted.

After a complaint is submitted to the Bar, but before charges are filed, intake counsel conducts a preliminary investigation.

If intake counsel determines that the allegations do not warrant discipline, then the case is closed immediately without further action against the attorney.

However, if intake counsel determines that the facts alleged would constitute a violation warranting discipline, then counsel opens a file, notifies the accused attorney, and requests a response within 15 days.

Over the past five years, an average of nearly 7,600 cases each year make it to this stage.

After receiving the lawyer’s response, intake counsel can close the file if the facts do not support going forward.

However, if further investigation is warranted or if the lawyer fails to respond, then intake counsel will forward the case to the Bar’s branch office covering the judicial circuit where the lawyer practices.

The Florida Bar has branch offices in Tallahassee, Tampa, Orlando, Ft. Lauderdale, and Miami.

Stage 2: Branch Investigation

Once the branch receives the case, it is assigned to Bar counsel who will conduct a factual analysis of the case.

Bar counsel will close the case if disciplinary measures are not warranted.

For relatively minor transgressions, Bar counsel can recommend diversion, in which case the grievance committee can divert the case to a practice and professionalism enhancement program in lieu of disciplinary sanctions.

Diversionary measures can include requiring the respondent to complete ethics school, a trust and accounting workshop, a stress management workshop or an advertising workshop, enter into a contract with Law Office Management Assistance Service (LOMAS) for practice management assistance, or enter into a rehabilitative contract with Florida Lawyers Assistance, Inc., (FLA, Inc.).

Diversion is not considered “discipline,” which would stay on the attorney’s permanent record.

Finally, if Bar counsel determines that there are sufficient grounds to go forward with prosecution, the complaint is forwarded to a grievance committee in the accused lawyer’s judicial circuit for additional investigation, and The Florida Bar becomes the complainant/prosecutor in the case.

Stage 3: Grievance Committee Process

There are 81 local grievance committees across Florida – at least one in each of the state’s 20 judicial circuits. Each circuit’s grievance committees are comprised of lawyers and public members living in that circuit. The grievance committees serve like a grand jury, and are charged with further factual investigation and determining whether there is probable cause that a disciplinary violation occurred.

The grievance committee chair will assign the case to one of the committee members, who will serve as the case’s investigating member. After interviewing witnesses and reviewing evidence, the investigating member will make a recommendation to the grievance committee.

Following a hearing, the grievance committee has a number of options. The grievance committee can:

* Find no probable cause, or no probable cause with a letter of advice, which ends the case with no discipline;

* Recommend mediation or arbitration of a fee dispute;

* Issue a finding of minor misconduct, which includes an admonishment;

* Recommend diversion to a practice and professionalism enhancement program;

* Recommend deferral of grievance committee review until the conclusion of a parallel criminal or civil case against the accused; and

* Find probable cause, which sends the case to trial.

Grievance committee investigations can take from three to six months, and in some cases even longer, depending on the complexity of the case.

Stage 4: Trial

Following a probable cause finding by the grievance committee, Bar counsel will draft a formal complaint and file it with the Florida Supreme Court.

The Supreme Court then appoints a circuit or county judge in the respondent’s circuit to serve as the referee for the case.

For cases not disposed of pretrial (such as by motion to dismiss or motion for summary judgment), the referee conducts a trial of the case, and hears witnesses and receives other evidence.

The referee then issues a report that contains factual and legal findings, a recommendation of guilt or innocence, and a recommendation of the appropriate sanctions.

The referee’s recommendations are not final until approved by the Supreme Court. Once the report of referee is filed with the Supreme Court, it is reviewed by the Board of Governors.

The Board of Governors and the respondent each have 60 days to appeal a referee’s decision.

WHO IS LYIN' LAWYER CATALINA AZUERO?

Stage 5: Board of Governors Review

The Board of Governors oversees the prosecution and appeals of disciplinary cases at all stages in the process. The Board of Governors can overturn a decision to close a disciplinary file, reviews grievance committee actions, and reviews reports of referees from disciplinary trials and petitions for reinstatement and decides whether to appeal to the Supreme Court.

The initial review occurs with the designated reviewer — the Board of Governors member from the respondent’s circuit assigned to review that specific case through all stages. The designated reviewer can refer matters to the Board of Governors for review. In addition, even if the designated reviewer agrees with an underlying decision, any single Board of Governors member can request review and debate of a disciplinary case by the board.

When review of any disciplinary matter by the Board of Governors is requested, the review first occurs in the Disciplinary Review Committee (DRC) which, with 26 members, is the largest committee of the Board of Governors.

The DRC meets before each of the six Board of Governors meetings each year to review all the disciplinary cases, and to debate those cases referred by designated reviewers or other board members, as well as cases where there is a disagreement between any of the designated reviewer, Bar Counsel and the referee.

The DRC typically reviews between 25 to 40 discipline cases each meeting, and the agenda often contains more than 500 pages of materials for review by the members. The DRC makes recommendations to the Board of Governors, which then votes as a whole on the DRC’s recommendations.

Board Review of Grievance Committee Decisions:

After the grievance committee makes its decision on probable cause, minor misconduct, or referral to diversion, the findings are forwarded to the designated reviewer.

If the designated reviewer disagrees with the grievance committee’s findings, the designated reviewer can send the matter back to the grievance committee for another review, or can request review by the Board of Governors.

The board can overturn a grievance committee’s findings and enter a finding of probable cause, no probable cause or minor misconduct, or the board can order diversion.

Board Review of Consent Judgments, Disbarments on Consent, and Disciplinary Revocations:

After probable cause is found but prior to trial, Bar counsel and the respondent can enter into a proposed consent judgment (like a plea agreement) to resolve the discipline, including disbarments on consent and disciplinary revocations (the voluntary surrender of a license while disciplinary proceedings are pending, which is tantamount to disbarment).

The consent judgment will include a guilty plea, proposed sanctions, and other requirements. Proposed consent judgments are reviewed by the Board of Governors, which can accept or reject a consent judgment, or can condition its acceptance on imposing additional conditions.

Consent judgments approved by the Board of Governors are tendered to the referee, and if approved by the referee, filed with the Supreme Court for consideration.

If a consent judgment is not accepted by both the board and the referee, then the case proceeds to trial.

Board Review of Reports of Referee:

Referees’ decisions following trial, pretrial dispositive orders (such as dismissal or summary judgment), and recommendations regarding reinstatement of a suspended lawyer are reviewed by the Board of Governors.

If the board disagrees with any aspect of the referee’s decision, including recommendations of guilt or innocence, recommended sanctions, or recommendations regarding reinstatement of a suspended lawyer, then the Board of Governors can seek review by the Supreme Court.

Final Stage: Florida Supreme Court Review

The Florida Supreme Court is the ultimate and final authority on lawyer discipline matters. The Supreme Court reviews consent judgments and referee decisions from disciplinary trials or reinstatement petitions. If either the Board of Governors or the respondent petition for review of a report of referee, then the matter is briefed. If neither the board nor the respondent petitions for review of the report of referee, then the Supreme Court will conduct its review of the report of referee without briefs unless the court requests briefing.

The Supreme Court can approve or disapprove any aspect of the report of referee, including findings of guilt or innocence or recommendation sanctions. The disciplinary sanctions ordered by the Supreme Court may be harsher or more lenient than the discipline recommended by the referee. The Supreme Court’s decision on guilt or innocence and the ultimate sanction imposed, if any, is final.

The Supreme Court’s orders are enforced through the court’s contempt powers. For example, if a lawyer is accused of practicing law while suspended, the suspended lawyer will be brought before the court on a petition for contempt and new discipline may be imposed. Such discipline is typically increasingly harsh. Thus, a lawyer who is suspended, if found guilty of contempt, may be disbarred. A disbarred lawyer who is caught practicing law may be permanently disbarred and/or face additional contempt sanctions.

Conclusion

While every jurisdiction has its own process and procedures for regulating its attorneys, The Florida Bar’s disciplinary system has many participants and levels of review.

Florida Bar attorneys and professional staff, county and circuit court judges, Supreme Court justices, and a number of volunteers — from the lawyers and public members who serve on the grievance committees to the members of the DRC and the Board of Governors

— spend a substantial amount of time dedicated to ensuring fairness and integrity in the process for the profession, the public, and the respondent.

Special thanks to Ken Marvin, retired director of Lawyer Regulation, and Arne Vanstrum, associate director of Lawyer Regulation, for their contributions to this article.

Brian D. Burgoon has served as an out-of-state member of The Florida Bar Board of Governors since 2000, served as 2013-14 chair of The Florida Bar Disciplinary Review Committee, and served on The Florida Bar Executive Committee. He also served as a member of the statewide Hawkins Commission on Review of the Discipline System.

He practices business litigation, civil litigation, and personal injury with The Burgoon Law Firm in Atlanta. If you have questions about filing a complaint against a lawyer, you may contact the Florida Bar’s Attorney Consumer Assistance Program (ACAP) hotline at toll free 1-866-352-0707.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



First Amendment

Gov. Ron DeSantis Is Aligned With Totalitarianism and His Laws Confirm He’s “The Unwanted Dictator”

The Governor of Florida wants to be the President of the United States and The People’s Liberty and Free Speech Rights are being Quashed. Say No, Citizens.

Published

on

What are the 5 characteristics of totalitarianism?

1.  A one-party state where one party has a monopoly on all political activity.
2. A state ideology upheld by the ruling party that is given status as the only authority.
3. State information monopoly that controls mass media for distribution of official truth.
4. State controlled economy with major economic entities under the control of the state.
5. Ideological terror that turns economic or professional actions into crimes. Violators are exposed to prosecution and to ideological persecution.

You Can Apply a Checkmark Against Gov. Ron Desantis.

The Unwanted Dictator Fits “This Bill”.

Florida Bans Residential Picketing with “Intent to Harass or Disturb” — but What Exactly Does That Mean?

A content-neutral ban on all residential picketing would be constitutional; but the “intent to harass or disturb” limitation may make the law unconstitutional or ineffective.

MAY 17, 2022 | REPUBLISHED BY LIT: MAY 19, 2022

The law, signed by Gov. Ron DeSantis yesterday, provides:

(1) As used in this section, the term “dwelling” means a building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.

(2) It is [a misdemeanor] for a person to picket or protest before or about the dwelling of any person with the intent to harass or disturb that person in his or her dwelling….

(4) Before a person may be arrested for a violation of this section, a law enforcement officer … must go as near to the person as may be done with safety and shall command any person picketing or protesting before or about the dwelling of a person to immediately and peaceably disperse. If any such person does not thereupon immediately and peaceably disperse, he or she may be arrested for a violation of this section.

Gov. DeSantis Brags About Having the Biggest Surplus of Funds… LIF knows How That is Possible. Theft.

Now a flat ban on all “focused picketing taking place solely in front of a particular residence” would be constitutional, as the Court expressly held in Frisby v. Schultz (1988), interpreting an ordinance that used the “before or about” language.

(In Carey v. Brown (1980), the Court had held that a content-based residential picketing ban was unconstitutional, but Frisby held that content-neutral ones are fine.)

But this statute wouldn’t ban all such residential picketing, but only picketing

“with the intent to harass or disturb.”

I appreciate the desire to narrow the ordinance;

consider Justice Stevens’ dissent in Frisby, which faulted the ordinance for making it a crime

“for a fifth grader to carry [a] sign” outside a friend’s home saying, “Get well Charlie—our team needs you.”

But I think this attempt to narrow it might actually make it unconstitutionally content-based, unconstitutionally vague, or perhaps effectively meaningless.

The problem is that the ordinance doesn’t define “harass,” and the closest state law analog—the Florida stalking statute—defines “harass” to “mean[] to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.”

What counts as a “legitimate purpose”?

The stalking cases haven’t set forth a categorical test, and indeed acknowledge its uncertainty (and circularity):

Whether the purpose for contact is “legitimate” is evaluated on a case-by-case basis and the term “legitimate” seems to be lacking a precise definition.

However, courts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim.

But they have recognized that a good range of communication, including communication to a person and not just about the person, is viewed as having a “legitimate purpose.”

Indeed, One Florida appellate case made clear that a wife’s “contact[ing her husband’s lover] by phone and by messages and ‘friend’ requests on Facebook” to “tell[ the lover] to stay away from [the husband]” was a legitimate purpose.

Another held the same as to a girlfriend warning her boyfriend’s ex-girlfriend to “stay away” from him.

A third held that calling one’s daughter’s dance team coach to complain about the “daughter’s participation in a dance team competition” “was a legitimate purpose.”

A fourth held the same about “six text messages” “asking him to repay $10,000.”

It seems that

protesting outside someone’s home to tell the person to vote a particular way on a political proposal

(if the person is a legislator)

or to stop performing abortions

(if the person is an abortion provider)

or to change corporate policy

(if the person is a business executive)

would likewise be a “legitimate purpose” under that term.

(The Florida stalking law also specifically says that another element of the stalking statute, “course of conduct,” “does not include constitutionally protected activity such as picketing or other organized protests,” but that is not itself within the definition of “harass” in that stalking law.)

It thus seems to me that there are three options here:

An intent to communicate to the picketed person that one thinks his behavior is improper (whether having an affair, failing to repay money, acting a particular way as a dance coach, or doing anything else) is a “legitimate purpose,” in which case the “intent to harass” branch of the law would do little about residential picketing.

An intent to communicate to the picketed person that one thinks his behavior is improper is not a “legitimate purpose”; but where is that in the statute, especially given how “legitimate purpose” has been defined in the cases under the Florida stalking statute?

An intent to communicate to the picketed person that one thinks his behavior is improper is sometimes a “legitimate purpose” and sometimes not a legitimate purpose, depending on whether one is communicating about something one has a legitimate interest in (e.g., the target’s having an affair with one’s husband).

But that would likely be unconstitutionally vague, and likely unconstitutionally content-based.

Gov. DeSantis Attended the January Orlando Federalist Society meeting where for the first time, Media was Banned for the speech by a Justice of the US Supreme Court.

Of course, the law also bans residential picketing with the intent to disturb, which might potentially be much broader.

But that term appears to be entirely undefined within Florida law, which further suggests that it might be unconstitutionally vague.

(I did find one other Florida statute that spoke of “harass[ing] or disturb[ing],” but that had to do with manatees.)

Would, say, picketing outside a legislator’s home aiming at persuading the legislator to vote a particular way be viewed as intent to disturb, or as intent to persuade?

What if there’s evidence that the real purpose for the picketing was to draw media attention?

More broadly, the Supreme Court held in Reed v. Town of Gilbert (2015) that statutory distinctions that “defin[e] regulated speech by its function or purpose” may be content-based, presumably if the function or purpose relates to the content of the speech.

And since speech said with “intent to disturb” would often disturb precisely because of its disturbing content, that would mean the statute is content-based; as I mentioned, the Court has held that content-based restrictions on residential picketing are content-based.

Nor can one respond by saying that all residential picketing is inherently intentionally disturbing because it intentionally intrudes on the target’s privacy:

After all, the law doesn’t ban all residential picketing, but only residential picketing conducted “with the intent to harass or disturb that person in his or her dwelling,” which suggests that the legislature views some residential picketing as intentionally disturbing and some as not.

So it looks like, by trying to limit the scope of the residential picketing ban, the Florida Legislature might have either made it unconstitutional or ineffective.

Perhaps this is a flaw in the Court’s First Amendment jurisprudence; again, consider Justice Stevens’ view, both in his Frisby dissent and in his Carey dissent, that content discrimination that narrows the scope of such laws is a virtue and not a vice.

Indeed, Justice Stevens’s dissent in Frisby suggested that the better approach is for such laws to be limited “to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose”—something that might be pretty close to the Florida “intent to harass” language.

But Justice Stevens was dissenting, and for better or worse the majority opinion, with its insistence on content neutrality, is the law.

NRA's Marion Hammer Sponsored the Bill

Investigation concludes Marion Hammer must disclose NRA money for lobbying

AUG 23, 2019 | REPUBLISHED BY LIT: MAY 19, 2022

The Office of Legislative Services Friday ordered powerful gun lobbyist Marion Hammer to refile quarterly lobbying compensation reports for the past four years to reflect income from the National Rifle Association.

Those amended reports have been submitted and Senate President Bill Galvano said he considers the case closed.

Two Democratic lawmakers filed formal complaints in May about Hammer’s quarterly compensation reports.

They charged she failed to fully disclose how much money she was paid to lobby the Legislature on gun issues.

Hammer formed Unified Sportsmen of Florida in 1975 as an NRA affiliate to promote Second Amendment rights at the Capitol. She is its only employee.

OLS General Counsel Audrey H. Moore concluded that Hammer as an “in-house” employee did not have to report lobbying income from Unified Sportsmen but added the money the NRA gives to the group must be disclosed.

Gov. DeSantis openly brags at a TPPF Conference in Texas, funded by Koch Industries, Big Tobacco et al how he manipulated the judges assigned to the courts for his own political agenda.

In a statement, Hammer said it’s never been a secret she was a lobbyist.

She said she sought out and relied on advice from the General Counsel of the Florida Senate that she didn’t need to fulfill any additional filing requirements.

“I, of course, am pleased that this matter has been concluded,”

she said.

“However, I am less than happy that the officials handling and commenting on these matters did not highlight the important point that I did not do anything wrong except rely on the advice of counsel.”

Sen. Perry Thurston, D-Fort Lauderdale, and Rep. Anna Eskamani, D-Orlando, filed the formal complaints, they said, to get a better idea of who is driving a gun agenda in the Florida Legislature.

Sen. Perry Thurston, D-Broward County, Vice Chair of the ÊSenate Appropriations Subcommittee on Transportation, Tourism and Economic Development speaks at a news conference held in opposition to Senate Bill 7096 in the fourth floor Capitol rotunda Tuesday, April 9, 2019.

Thurston criticized the Rules Committee’s decision to refer the complaint to OLS and not conduct a full investigation.

“Had the Rules Committee followed this mandatory procedure, the people of Florida would have witnessed a much more transparent process, allowing both Republicans and Democrats to probe the facts, bring forward the evidence, and arrive at the appropriate conclusion,” said Thurston.

“The report issued today serves as a bitter reminder of the powerful grip Ms. Hammer and the NRA continue to maintain over the Republican-led Florida legislature,” said Thurston.

Tax filings reveal that Unified Sportsmen raises more than $200,000 annually from its membership but do not show how much money was spent to influence lawmakers.

Eskamani said the House refused to hear nearly a dozen of what she called common-sense gun legislation in 2019 and points to Hammer as the culprit for the silence.

“The public deserves to have an understanding of her level of influence and where her resources come from,”

said Eskamani about the legendary lobbyist credited with creation of the concealed-carry permit and stand-your-ground law.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Continue Reading

Bankers

Andy’s Wells Fargo Bank Account Balance is Unexpectedly $455k Lighter and He Wants Those Funds Back

The complaint clearly needs to be fleshed out as the basic information provided is insufficient to determine even the basic facts. We’re trackin’ it.

Published

on

Tong v. Wells Fargo Bank, N.A.

(3:21-cv-01236)

District Court, M.D. Florida

DEC 17, 2021 | REPUBLISHED BY LIT: DEC 18, 2021

VERIFIED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff ANDY TONG hereby sues Defendant, Wells Fargo Bank, N.A., and states as follows:

Jurisdiction

1. Plaintiff, Andy Tong (“Mr. Tong”), is an individual residing in Duval County, Florida.

2. Defendant, Wells Fargo Bank, N.A. (“WFB”) is a Foreign Profit Corporation with a principal address of 420 Montgomery Street, San Francisco, California 94163.

3. All actions material to these proceedings occurred within Columbia County, Florida.

4. Venue is proper under 28 U.S.C. 1391, as all persons, local government authorities and private business entities, involved in this dispute reside or are authorized to do business within the geographic boundaries subject to the Middle District of Florida, Jacksonville Division.

5. This Court has jurisdiction of this cause pursuant to 28 U.S.C. §1331, specifically under 15 U.S.C. §1693m(g) and 28 U.S.C. §1343. 

Background

6. At all times in question, Mr. Tong was the owner and holder of Money Market Account Number xxxxxxxxx5467 (the “Account”) with Defendant, WFB.

7. The Account is located in the United States.

8. An ATM/CheckCard Number xxxxxxxxxxxx5467 (“Check Card”) was issued on the Account to Mr. Tong.

9. At all times in question, Mr. Tong was the sole authorized signatory on the Account.

10. At all times in question, Mr. Tong was living in Columbia County, Florida.

11. On or about January 11, 2021 Mr. Tong went to the Wells Fargo branch in Gainesville to withdraw money from his account and noticed unauthorized funds were withdrawn.

12. On or about January 11, 2021, Mr. Tong advised WFB and reported the unauthorized transactions on the Account and requested all records pertaining to the Account.

13. Upon notifying WFB of the unauthorized transactions, WFB representative advised Mr. Tong that the Account was frozen so that no further unauthorized transactions could be made.

14. The Check Card was never out of Mr. Tong’s possession or control.

15. Prior to January 11, 2021, Mr. Tong never learned of or had reason to suspect of any counterfeit card or of any loss or theft of Account information used to make the unauthorized transfers.

16. With the exception of the occasional gas purchase, all of the transactions identified on the attached Exhibit “A” were unauthorized (the “Unauthorized Transactions.”)

17. As a result of the Unauthorized Transactions, the Account and Mr. Tong have lost approximately $454,636.17.

18. WFB is considered a “financial institution” per 15 U.S.C. §1693a(9).

 

19. “Electronic funds transfer” is defined as “any transfer of funds . . . which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes . . . direct deposits or withdrawals of funds ” 15 U.S.C. § 1693a(7); see also 12 C.F.R. § 205.3(b).

20. The rights, liabilities, and responsibilities of the parties to this action, with respect to the unauthorized transactions on the Account, are governed by the Electronic Fund Transfer Act (15 U.S.C. § 1693, et seq.) (the “EFTA”).

21. The purpose of the EFTA is “to provide a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer systems. The primary objective of this subchapter, however, is the provision of individual consumer rights.” (15 U.S.C. § 1693, ¶ (b) of the introduction).

22. According to § 1693m(a) of the EFTA, “ any person who fails to comply with any provision of this subchapter with respect to any consumer, except for an error resolved in accordance with section 1693f of this title, is liable to such consumer in an amount equal to the sum of (1) any actual damage sustained by such consumer as a result of such failure; (2)(A) in the case of an individual action, an amount not less than $100 nor greater than $1,000; and (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.”

23. In order to be liable to Mr. Tong under § 1693m(a) of the EFTA, WFB must have failed to resolve an error in accordance with § 1693f of the EFTA.

24. For purposes of § 1693f of the EFTA, the unauthorized transactions reported by Mr. Tong constitute errors. See, 15 U.S.C. § 1693f(f)(1).

25. Pursuant to § 1693f of the EFTA, WFB was required to investigate the unauthorized transactions reported by Mr. Tong, determine whether an error had occurred, and report or mail the results of such investigation and determination to Mr. Tong and/or the other account holders within ten (10) business days after WFB received notice of the Unauthorized Transactions (i.e., within 10 business days after January 11, 2021 or, in lieu of such requirement, WFB could have, within ten (10) business days after receiving such notice, provisionally re-credited the Account for the amount of the unauthorized transactions, subject to 15 U.S.C. § 1693g, including any applicable interest, pending the timely conclusion of WFB’s investigation and determination of whether an error had occurred on the WFB Account. See, 15 U.S.C. § 1693f(a) and (c).

26. However, during the requisite ten (10) business-day period, WFB did not report or mail the results of WFB’s investigation and determination of Mr. Tong’s claim, nor did WFB provisionally re-credited the Account for any amount of the unauthorized transactions pending the conclusion of WFB’s investigation and its determination of whether an error had occurred on WFB Account.

27. Moreover, WFB was obligated to re-credit the Account for the amount of the Unauthorized Transactions, as the Check Card used to make the Unauthorized Transactions on the Account was not an accepted card or other means of access as defined in § 1693a of the EFTA. See, 15 U.S.C. § 1693g.

28. Even if the Check Card used to make the Unauthorized Transactions on the Account had been an accepted card or other means of access, as defined in § 1693a of the EFTA, WFB would have been required to reimburse their respective portions of the Account for the amount of the Unauthorized Transactions, less a maximum of fifty dollars ($50.00). See, 15 U.S.C. § 1693g.

29. WFB never re-credited the Account for any amount.

30. By letter dated January 25, 2021, WFB denied Mr. Tong’s claim of January 11, 2021. A true and correct copy of the Claim Denial Letter is attached hereto as Composite Exhibit “B.”

31. January 25, 2021 was more than ten (10) business days after January 11, 2021.

32. In the Claim Denial Letter, WFB stated that Mr. Tong had rights to obtain records upon which WFB decision was based. See Composite Exhibit “B.”

33. WFB was required, upon request, to promptly deliver or mail to Mr. Tong reproductions of all documents upon which WFB relied on to conclude that the unauthorized transactions (i.e., errors) did not occur. See, 15 U.S.C. § 1693f(d).

34. On or about February 16, 2021, Mr. Tong requested the records upon which WFB decision was based.

35. As of the date of this filing, WFB has not reimbursed Mr. Tong for the unauthorized expenditures.

36. Mr. Tong hired the undersigned counsel to represent him in this action, and has agreed to pay a reasonable fee and costs to the undersigned counsel in connection with such representation in accordance with 15 U.S.C. §1693m(a)(3).

37. All conditions precedent to this action have been performed, have occurred, or have been waived.

COUNT I VIOLATION OF 15 U.S.C. §1693f(a)

38. Plaintiff incorporates by reference in this count all allegations set forth above in Paragraphs 1 through 37.

39. This is an action for violation of 15 U.S.C. §1693f(a), which requires WFB investigate the alleged error and mail the results of the same to the consumer within ten (10) business days.

40. WFB did not, within ten (10) business days after receiving Mr. Tong’s claim of January 11, 2021, investigate the unauthorized transactions reported by Mr. Tong, determine whether an error had occurred, and report or mail the results of such investigation and determination to Mr. Tong.

41. WFB did not, within ten (10) business days after receiving Mr. Tong’s claim of January 11, 2021, provisionally re-credited the Account for the amount of the unauthorized transactions, subject to 15 U.S.C. § 1693g, including any applicable interest, pending the timely conclusion of WFB’s investigation and determination of whether an error had occurred on the Account.

42. By failing to timely report or mail the results of its purported investigation or, in lieu thereof, provisionally re-credit the Account, WFB violated 15 U.S.C. § 1693f(a).

WHEREFORE, Plaintiff ANDY TONG demands judgment against the Defendant, WELLS FARGO BANK, N.A., for actual damages, statutory damages of $1,000.00, attorneys’ fees and costs, and interest, plus any and all other relief this Honorable Court deems just and proper.

COUNT II VIOLATION OF 15 U.S.C. §1693f(c)

43. Plaintiff incorporates by reference in this count all allegations set forth above in Paragraphs 1 through 37.

44. This is an action for violation of 15 U.S.C. §1693f(c), which permits WFB, in lieu of investigating and providing the results to the consumer within ten (10) days, provisionally recredit the consumer’s account pending the conclusion of an investigation in to the alleged errors of the account.

45. WFB did not, within ten (10) business days after receiving Mr. Tong’s claim of January 11, 2021 investigate the Unauthorized Transactions reported by Mr. Tong, determine whether an error had occurred, and report or mail the results of such investigation and determination to Mr. Tong; therefore, WFB was required to provisionally re-credited the Account, within said ten (10)-business day period, for the amount of the Unauthorized Transactions, subject to 15 U.S.C. § 1693g, including any applicable interest, pending the timely conclusion of WFB’s investigation and determination of whether an error had occurred on the Account.

46. By failing to provisionally re-credit the Account, WFB violated 15 U.S.C. § 1693f(c).

WHEREFORE, Plaintiff ANDY TONG demands judgment against the Defendant, WELLS FARGO BANK, N.A., for actual damages, statutory damages of $1,000.00, attorneys’ fees and costs, and interest, plus any and all other relief this Honorable Court deems just and proper.

COUNT III VIOLATION OF 15 U.S.C. §1693f(d)

47. Plaintiff incorporates by reference in this count all allegations set forth above in Paragraphs 1 through 37.

48. This is an action for violation of 15 U.S.C. §1693f(d), which requires that WFB provide an explanation of its findings to the consumer within three (3) business days of the conclusion of its investigation. Moreover, upon the request of the consumer, it shall promptly deliver reproduction of all financial documents relied upon in concluding that an error did not occur.

49. Upon receipt of the records request by Mr. Tong, WFB was required to promptly deliver or mail reproductions of all documents upon which WFB relied to conclude that the Unauthorized Transactions did not occur.

50. WFB did not promptly deliver or mail any documents or otherwise respond to the Mr. Tong’s records request.

51. By failing to promptly deliver or mail reproductions of all documents upon which WFB relied to conclude that the Unauthorized Transactions did not occur, WFB violated 15 U.S.C. §1693f(d).

WHEREFORE, Plaintiff, ANDY TONG demands judgment against the Defendant, WELLS FARGO BANK, N.A., for actual damages, statutory damages of $1,000.00, attorneys’ fees and costs, and interest, plus any and all other relief this Honorable Court deems just and proper.

 

COUNT IV

TREBLE DAMAGES UNDER 15 U.S.C. §1693f(e)

52. Plaintiff incorporates by reference in this count all allegations set forth above in Paragraphs 1 through 37.

53. This is an action for violation of 15 U.S.C. §1693f(e), which provides that a consumer shall be entitled to treble damages for any action if the trial court finds a violation of subsection 15 U.S.C. §1693f(c) and the financial institution did not make a good faith investigation of the alleged error; have a reasonable basis for believing the consumer’s account was not in error; or knowingly and willfully concluding the consumer’s account was not in error when such a conclusion could not reasonably have been drawn for the evidence available to the financial institution at the time of the investigation.

54. Upon information and belief, WFB (a) did not make a good faith investigation of the alleged error, or (b) did not have a reasonable basis for believing that the Account was not in error; or (c) knowingly and willfully concluded that the Account was not in error when such conclusion could not reasonably have been drawn from the evidence available to WFB at the time of its investigation; therefore, pursuant to § 1693f(e) of the EFTA, Mr. Tong is entitled to treble damages determined under § 1693m(a)(1) of the EFTA.
WHEREFORE, Plaintiff, ANDY TONG demands judgment against the Defendant, WELLS FARGO BANK, N.A., for treble the amount of actual damage suffered by Plaintiff, ANDY TONG as a result of Defendant’s violations of the EFTA, plus any and all other relief this Honorable Court deems just and proper.

COUNT V

VIOLATION OF UCC ARTICLE 4A (Fla. Stat. Chap. 670)

55. Plaintiff incorporates by reference in this count all allegations set forth above in Paragraphs 1 through 37.

56. The Unauthorized Transactions in Exhibit “A” are governed by Article 4A of the Uniform Commercial Code, codified at Fla. Stat. §§670.101, et seq. (“Article 4A”).

57. WFB’s conduct, as more fully set forth herein, violates Article 4A.

58. The Unauthorized Transactions were processed and facilitated by WFB in violation of §670.202 and/or §670.203, Fla. Stat. and is, therefore, unenforceable against the Plaintiff.

59. Specifically, the Unauthorized Transactions was not caused, directly or indirectly, by a person who was authorized to originate a wire pursuant on the WFB Account as an “Originator.”

60. By failing to contact the Plaintiff, WFB failed to comply with, and adhere to, a commercially reasonable security procedure as expressed to WFB and specifically chosen by the Plaintiff.

61. WFB failed to comply with the security procedures designed to protect the Plaintiff when it failed to contact the Plaintiff to confirm the Unauthorized Transactions. By doing so, WFB failed to accept the wire transfer require in good faith and in compliance with commercially reasonable security procedures.

62. Accordingly, the Unauthorized Transactions were not authorized and is not effective as the order of Plaintiff pursuant to §670.202, Fla. Stat. and/or is not enforceable against Plaintiffs under §670.203, Fla. Stat.

63. WFB is obligated to refund the entire amount of the Unauthorized Transactions to Plaintiff, plus interest pursuant to §670.204, Fla. Stat.

64. As a direct and proximate result of WFB’s multiple statutory violations, Plaintiff has suffered and continue to suffer damages.

WHEREFORE, Plaintiff, ANDY TONG, demands judgment against Defendant, WELLS FARGO BANK, N.A., for damages, costs and such other and further relief as this Court deems just and proper.
Demand for Jury Trial

Plaintiff, ANDY TONG, demands trial by jury on all issues so triable.

DATED this 16th day of December, 2021.

LAW OFFICE OF KELLY B. MATHIS

By: Kelly B. Mathis, Esquire
Florida Bar No. 0768588

James M. Oliver, Esquire
Florida Bar No. 0124458

3577 Cardinal Point Drive
Jacksonville, FL 32257
(904) 549-5755
Primary: kmathis@mathislaw.net
Secondary: carmen@mathislaw.net

Attorneys for Plaintiff

 

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.




U.S. District Court
Middle District of Florida (Jacksonville)
CIVIL DOCKET FOR CASE #: 3:21-cv-01236-MMH-LLL

 

Tong v. Wells Fargo Bank, N.A.
Assigned to: Judge Marcia Morales Howard
Referred to: Magistrate Judge Laura Lothman Lambert
Demand: $455,000
Cause: Civil Miscellaneous Case
Date Filed: 12/16/2021
Jury Demand: None
Nature of Suit: 430 Banks and Banking
Jurisdiction: Federal Question
Plaintiff
Andy Tong represented by Kelly B. Mathis
Law Offices of Kelly B. Mathis
3577 Cardinal Point Drive
Jacksonville, FL 32257
904/549-5755
Email: kmathis@mathislaw.net
ATTORNEY TO BE NOTICED
V.
Defendant
Wells Fargo Bank, N.A.
a foreign profit corporation
Date Filed # Docket Text
12/16/2021 1 COMPLAINT against WELLS FARGO BANK, NA with Jury Demand (Filing fee $ 402 receipt number AFLMDC-19038015) filed by ANDY TONG. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B)(Mathis, Kelly) (Entered: 12/16/2021)
12/17/2021 2 NEW CASE ASSIGNED to Judge Marcia Morales Howard and Magistrate Judge Laura Lothman Lambert. New case number: 3:21-cv-1236-MMH-LLL. (SJB) (Entered: 12/17/2021)

L21000185243
Company Name:
ANDY TONG INVESTMENTS LLC

Date of Incorporation:
2021-04-21

Status:
ACTIVE

Company Type:
Florida Limited Liability Company

State
Florida

Annual Reports
No Annual Reports Filed

Principal Address
1044 NW EADIE ST. LAKE CITY, FL 32055

Registered Agent Name:
CASE, JONATHAN A

Registered Agent Address:
4615 WESCONNETT BLVD. JACKSONVILLE, FL 32210

updated on
2021-05-05

Director details (1)

TONG, ANDY

MGR

1044 NW EADIE ST LAKE CITY, FL 32055

Other companies with agent name CASE, JONATHAN A

A-JAX LOCAL VAPE L.L.C.
2021-02-22
ACTIVE

ACS LOADING SERVICES LLC
2019-03-11
INACTIVE

JACASE INVESTMENTS LLC
2017-08-30
ACTIVE

Continue Reading

Editors Choice

The Senate Judiciary Committee Has a Responsibility to Forcefully Reject this Judicial Overreach

LIF and LIT has proven beyond a reasonable doubt that there are many rogue judges on our Federal Benches. This request is in direct violation of the US Constitution.

Published

on

Principles for Federal Judicial Privacy Legislation
Protection of Judges’ Personally Identifiable Information

Further to our article on Judges wanting God Status and Protection from Scrutiny by Tax Payers and Citizens, the following article transcribes the letter circulating congress and the Judicial Senate Committee…

September 4, 2020
Honorable Lindsey Graham Chairman
Committee on the Judiciary United States Senate Washington, DC 20510

Dear Mr. Chairman:

In my August 19, 2020 letter to House and Senate leadership, I outlined six recommendations approved by the Judicial Conference of the United States to improve judicial security.

That letter was prompted by the July 2020 attack on the family of United States District Court Judge Esther Salas that resulted in the murder of her 20-year-old son, Daniel, and the critical wounding of her husband, Mark.

Unfortunately, too many others in our judicial family have experienced similar tragedy and grief. The murders of United States District Judge John Wood (1979), United States District Judge Richard Daronco (1988), United States Circuit Judge Robert Vance (1989), United States District Judge John Roll (2011), family members of United States District Judge Joan Lefkow (2005), and now the son of United States District Judge Esther Salas were tragic targeted attacks against federal judges and their families.

Unfortunately, threats have greatly multiplied over the past five years and require immediate legislative action to enhance security protections.

Among the recommendations approved by the Judicial Conference is to seek legislation to enhance the protection of judges’ personally identifiable information (PII), particularly on the internet.

Another recommendation is to seek legislation to eliminate the sunset provision in 5 U.S.C. app. § 105(b)(3)(E), which grants the Judicial Conference authority to redact financial disclosure reports.

Other recommendations are for additional appropriations – for the upgrade, installation, and continued sustainment of the Home Intrusion Detection Systems program; for additional deputy U.S. Marshals; and for the Federal Protective Service (FPS) to fund the required upgrades for courthouse security camera systems.

A final recommendation is to support the development of a resource to monitor the public availability of judges’ PII, inform judges of security vulnerabilities created by this information, and where necessary, advise the appropriate law enforcement of an inappropriate communication.

James C. Duff
Secretary

Enclosures

cc:
Honorable Dianne Feinstein
Honorable Cory Booker
Honorable Bob Menendez

The judiciary supports the protection of and prevention of unauthorized release of personally identifiable information of federal judicial officers and their immediate families (“Judges’ Personally Identifiable Information” or “JPII”), particularly such information that is available and distributed through the internet. “Immediate family” includes a judicial officer’s spouse, child, parent, or any blood relative of the judicial officer or the judicial officer’s spouse who lives in the same residence as the judicial officer.

The goal of this legislation is to ensure that federal judicial officers are able to administer justice fairly without fear of personal reprisal from individuals affected by decisions made in the course of carrying out their professional duties. The purposes of the legislation are to remove and/or limit access to JPII from publicly displayed records, as well as to prohibit any person, business, association, or agency from posting, displaying, selling, sharing, transferring, or trading JPII with others. Federal privacy legislation shall not be construed to impair free access to decisions and opinions expressed by judicial officers in the course of carrying out their public duties.
The judiciary recommends enactment of federal legislation that incorporates the following:

1. PROTECTION OF FEDERAL JUDICIAL OFFICERS including the Chief Justice of the United States; the Associate Justices of the Supreme Court of the United States; judges of the United States courts of appeals; district judges and magistrate judges of the United States district courts, including the district courts in Guam, the Northern Mariana Islands, and the Virgin Islands; judges of the Court of Appeals for the Federal Circuit, Court of International Trade, United States Bankruptcy courts, United States Court of Federal Claims, and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior. The legislation shall extend to any individual identified above, whether in active, senior, recalled, or retired status, as well as any individual whose nomination to a position listed above has been transmitted by the President of the United States to the United States Senate and whose nomination remains pending before the United States Senate.

2. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION of judicial officers and their immediate family members, to include but not be limited to the primary home address; date of birth; social security number; driver’s license number; voter registration information that includes a home address; bank account and credit or debit card information; property tax records and any property ownership records, including a secondary residence and any investment property; birth and marriage records; marital status; personal email addresses; home or mobile phone number; vehicle registration information; family member’s employer, daycare, or school; personal photographs or photographs of a judicial officer’s home; religious, organization, club, or association memberships; identification of children under the age of 18; and any other unique biometric data or piece of information that can be used to identify an individual.

3. PROHIBITION OF PUBLIC DISTRIBUTION OF JPII BY ANY FEDERAL GOVERNMENT AGENCY. Federal government agencies shall have an affirmative duty to prevent the public disclosure of JPII, and upon written request shall remove restricted JPII from internet sites or publicly accessible federal government databases within 48-72 hours of the request.

4. MANDATORY REMOVAL OR REDACTION OF JPII UPON WRITTEN REQUEST SERVED ON ANY PERSON, BUSINESS, ASSOCIATION, OR AGENCY. Upon written request, a person, business, association or agency must, within 48-72 hours of receipt of the request, redact from the public record any existing JPII and may not thereafter knowingly post, display, sell, share, trade or transfer JPII, including publicly accessible and displayed content. No person, business or association shall solicit JPII with intent to do harm to a judicial officer or immediate family member. The written request by a judicial officer, or his or her representative, to remove and/or to redact from the public record JPII of the judicial officer or an immediate family member shall not require a showing of fear of harm or immediate threat and shall remain effective until revocation of the request by the judicial officer or a surviving immediate family member.

5. ENFORCEMENT/REMEDIES shall include a private right of action (including injunctive or declaratory relief), civil enforcement authority by an appropriate federal department or regulatory agency, and limited criminal enforcement authority.

6. PREEMPTION OF STATE LAWS. Federal legislation must mandate and/or provide incentives for the protection of JPII held at the state/county/local level – at a minimum including motor vehicle registration and driver’s license information; real estate transaction and property tax records; and voter registration information that includes a home address. Restricted JPII of federal judicial officers and immediate family members must be exempt from state public information laws. Federal legislation might include grant programs to assist states in complying with these provisions.

Permanent Authority to Redact Sensitive Security Information from Judicial Financial Disclosure Reports

PROPOSED LEGISLATION:

SECTION 1. REDACTION AUTHORITY CONCERNING SENSITIVE SECURITY INFORMATION.

Section 105(b)(3) of the Ethics in Government Act of 1978 (5 U.S.C. App.) is amended by striking subparagraph (E).

BACKGROUND AND JUSTIFICATION:

• The Judicial Conference of the United States seeks legislation to eliminate the sunset provision in 5 U.S.C. app. § 105(b)(3)(E), which grants the Judicial Conference authority to redact financial disclosure reports.

• The need to provide permanent redaction authority is a sensitive security matter. A lapse in redaction authority, which has occurred in the past, creates significant security risks to judges and judiciary employees. Federal judges and judiciary employees, like probation officers, routinely interact with disgruntled litigants and convicted criminals who may bear grudges against them. Without redaction authority, these individuals will be able to learn sensitive information such as the unsecured locations of judges, employees, and their families. Redaction of this sensitive information protects these public servants and their families from harm.

• Judges and certain judicial employees are required to file financial disclosure reports under the Ethics in Government Act of 1978, as amended. Congress has recognized judges and judicial employees have been the subject of assault, threats and harassment. Accordingly, Congress enacted legislation that grants the Judiciary the authority to redact certain statutorily required information in a financial disclosure report in limited instances when the release of the information could endanger a judicial officer or employee or his or her family (The Identity Theft and Assumption Deterrence Act of 1998, Section 7, P.L. 105-318, October 30, 1998.) We thank the Congress for their past support of this critical safeguard.

• Congress has extended the authority to redact six times since 1998. In 2012, Congress passed an extension of the sunset provision through December 31, 2017. Unfortunately, the redaction authority expired on January 1, 2018 because Congress did not take final action on eliminating the sunset provision or renewing the authority. It wasn’t until March 23, 2018, upon enactment of the Consolidated Appropriations Act of 2018 that redaction authority was again extended to December 31, 2027.

• Congress previously has indicated support for legislation to make this authority permanent. As noted in House Report 115-332, the House has consistently supported permanent reauthorization of redaction authority. The House passed permanent redaction authority in 2011 by a vote of 384-0. In October 2017, the Senate Committee on Homeland Security and Governmental Affairs favorably reported to the Senate S. 1584 which provided for permanent redaction authority (see Senate Report 115-172.)

• The Judicial Conference uses its redaction authority carefully and reasonably. Each year a very small percentage of the financial disclosure reports filed contain an approved redaction of some information in the report. In 2019, 4,379 individuals employed in the judicial branch were required to file a financial report and 155 filers, or just 3.5 per cent, requested redaction. Of those, 150 requests were granted in full or in part. Of the 34,612 reports released to the public, only 1,970 contained partial redactions. Although only a small percentage of reports released to the public are approved for any redactions, the written application to examine a financial disclosure report and the ability to withhold sensitive information remain important protections for the judicial officers and employees who are most at risk for facing serious threats and inappropriate communications.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Continue Reading

Most Read

Copyright © 2022 LawsInFlorida.com is an online brand name which is wholly owned by Blogger Inc., a nonprofit 501(c)(3) registered in Delaware | Caricatures by DonkeyHotey