Some Florida couples deal with mental incapacity issues as they overlap with divorce, and there are laws here in Florida addressing the issue. However, while Florida does allow for divorce in the event that one spouse suffers from a mental incapacity, there are particular waiting periods built into the law in order to protect infirm spouses who, in some instances, cannot defend themselves. Specifically, once determined to be officially incapacitated, an individual needs to have been incapacitated for at least three years prior to commencing dissolution proceedings.

Yet while the law has been put in place in large part to help protect those with severe injuries and conditions such as brain trauma and dementia, there are also individuals who have found themselves the victim of this particular law.

As A Hurdle

While some divorce-mental incapacity cases involve one spouse attempting to take advantage of the other, who has been deemed to be mentally incapable, there are also couples who wish to obtain a divorce, but find themselves waiting for three years or more to obtain it due to some of the loopholes in the law.

In fact, once deemed mentally incapable, it can actually be challenging for an individual to obtain their civil rights such that they can proceed to obtain a divorce.

Guardianships Vs Civil Rights?

In cases where an individual has been deemed to be incompetent, a court-appointed guardianship is sometimes established. In fact anyone can petition the court to remove an individual’s freedom to determine their own destiny. These individuals are sometimes appointed guardians by the court to act on their behalf in legal proceedings, and have historically been relied upon in cases involving severe brain injuries and/or dementia.

However, there are cases where even though this type of guardianship begins with consent, it continues against an individual’s will. Specifically, there are cases in which someone’s basic civil rights are actively being ignored, for example, in the instance where a completely capable individual has been deemed to be a “ward” in need of a guardianship to help manage their finances and life choices.

While the law in Florida is in place, in part, to protect those suffering from actual mental incapacities from being taken advantage of by a spouse seeking an unfair advantage in divorce, it is also important to note that rarely will experienced divorce attorneys recommend that clients actually actively arrange for a professional guardian to manage their property. Be careful about filing a petition for voluntary guardianship without working with an experienced attorney who has your best interests in mind.

Divorce Attorneys Serving Orlando, Sarasota, Tampa, and Surrounding Areas

If you are dealing with divorce, mental incapacity, and/or related issues, working with a caring, professional family attorney is essential. At HD Law Partners, our parenting plan lawyers have over 40 years’ combined experience in helping clients navigate Florida’s complex divorce laws. We put our knowledge, experience, and abilities to use in helping you achieve the desired results in your case. Contact us today for a free consultation.

Resources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.052.html

heraldtribune.com/news/20160820/courtroom-trauma-amicable-divorce-turned-into-guardianship-nightmare

Tags: Complex Florida Divorce Cases, Mental Incapacity and Divorce, Tampa Divorce Lawyer, Tampa Divorce Lawyers
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As recently covered by the Miami Herald, the issues created by short-term rentals (as facilitated by websites like Airbnb and others) have become one of the most pressing challenges facing both homeowners and condominium associations during the last several years. Specifically, multiple legal issues have arisen from the blatant disregard of association governing documents clearly prohibiting short-term rentals.

And yet, enforcing these restrictions has proven to be extremely difficult, warranting the development of strategic legal measures to address them. This is particularly of concern in Florida, which is one of the top home-sharing markets in the country due to the number of tourists that come through the state on a regular basis.

Municipal Restrictions & Enforcement Measures

In response, a number of Florida municipalities are now adopting stringent restrictions and regulations. For example, Miami Beach allows for some short-term vacation rentals in certain zoning districts, but bans them outright in all single-family homes and in some zoning districts. Recently, fines were also raised to $20,000 for first-time violations of these restrictions.

In addition, Miami also adopted an ordinance requiring that homeowners wishing to list their properties on Airbnb first submit an affidavit to the city verifying that they live in an area explicitly approved for offering short-term rentals. Similarly, all condominium owners must also submit proof to the city verifying that their association explicitly allows for these types of rentals. Failure to provide this required paperwork can result in fines of $1,000 to $10,000.

Governing Documents & Enforcement Mechanisms

Condo and homeowners associations also have a means by which they can use their governing documents to protect themselves. While some associations already have governing documents and bylaws that allow for short-term rentals, strict measures addressing nuisance complaints need to be in place in order to ensure that disruption is avoided and addressed, if need be. Measures ensuring that guests are properly vetted before renting these properties and security monitoring is in place are also very necessary.

Associations that do not yet address these short-term rentals in their bylaws and governing documents may want to consider adopting new rules and/or amendments addressing the issue and placing restrictions as to under what circumstances they can occur (if they are compelled to allow for these types of rentals). And for those who outright prohibit these rentals, there needs to be a clear fining policy in place.

There are services which allow associations and other landlords to detect property listings on these short-term rental sites and then take those steps necessary to prevent the rental.

Experienced Florida HOA/Property Management Attorneys

HD Law Partners focuses on finding strategic legal solutions for homeowners and condominium associations. We provide the knowledgeable, dedicated legal guidance and representation that you deserve. With over 40 years of experience representing property association interests, we have the legal solutions you need. Contact us today for a free consultation to find out how we can help.

Resource:

miamiherald.com/news/business/biz-monday/article152780789.html

Tags: Florida HOA/Property Management Attorney, Florida HOA/Property Management Attorneys, Short-Term Rentals
Posted in HOA/Property Management, Landlord Tenant | No Comments »

In one woman’s story of divorce, as recently featured in The Washington Post, she describes divorce becoming easier as a couple nears the one-year mark, where “what once seemed like an end is actually a beginning.” For many, life eventually takes them towards entering a second subsequent marriage.

But are there particular precautions and important considerations that should be taken by those who are planning to get married a second time, particularly if they have children from their first marriage? Indeed, second marriage can involve additional complications, particularly if blended families are involved. Below, we go into detail about how you can ensure that you and your family are protected.

Protecting Assets & Accounts in Marriage and Divorce

Absent an agreement indicating otherwise, Florida law mandates that marital property be split equitably. While many younger couples don’t worry about protecting assets or keeping separate bank accounts when they initially enter into marriage, for older couples who already own their own homes, retirement funds, and other assets, protecting these assets—possibly in the interest of their children’s future(s)—are often a number one priority.

In order to do so, working with an experienced family law attorney in drafting a carefully-worded prenuptial agreement is extremely important. A prenuptial agreement can not only help protect your assets, but also address your second marriage in the context of any child and/or spousal support you may be paying from your first.

In addition, your attorney can help you set up separate accounts: joint accounts to pay for expenses like the mortgage and groceries, and individual accounts to cover other bills. Remember that creditors are not always bound by divorce settlements.

Consider a Trust

If you are concerned about your children from your first marriage, a trust might be your best option, as it can protect these assets even in the event of your death and your ex-spouse’s second marriage. This not only applies to inheritance and funds, but to your home (and leaving it to your children) as well.

Social Security

Also keep in mind that if your first marriage lasted 10 years or longer, you may be entitled to a social security check based upon your ex-spouse’s income. However, if you remarry, this no longer remains the case.

Consult With an Experienced Florida Divorce Attorney

If you are in the process of getting divorced or entering into a subsequent marriage, it is critical that you consult an experienced divorce attorney. Not only is it important to keep your estate plan updated, but pre- and postnuptial agreements are only valid under certain circumstances, and an experienced family law attorney can help provide you with guidance in protecting your assets and navigating their future management.

If you or someone you know is preparing to get married or going through a separation or divorce, contact the family law attorneys at HD Law Partners today in Orlando, Sarasota, or Tampa. Our experienced Florida divorce lawyers provide the legal representation you need in these cases. Contact us today.

Resources:

washingtonpost.com/news/soloish/wp/2017/06/06/how-do-you-keep-a-family-together-after-a-divorce/?utm_term=.5de6c1f1319b

forbes.com/sites/markeghrari/2017/06/02/second-marriage-and-estate-planning-5-things-you-may-not-have-considered/

Tags: Florida Prenuptial Agreements, Remarrying, Tampa Divorce Lawyer, Tampa Divorce Lawyers
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The payment of child support after divorce is very important to families for a variety of reasons, the most obvious being that the monies are used in furtherance of the child’s well being and to establish an appropriate quality of life for the child.

Unfortunately, Florida ranks fairly poor among U.S. states, as it relates to social and economic conditions for children, making child support payments that much more important in our state. For example, in 2016, Florida was ranked 39^th in the nation in the Best & Worst States for Underprivileged Children report.  

Child Support Guidelines in Florida

Florida, like other states, has a set formula (or guidelines) for determining child support. Under Florida state law, the judge may vary this plus or minus five percent from the guideline amount after considering all relevant factors, including the needs of the child, age, standard of living, and the financial status and ability of each parent. If the amount varies more than five percent, there must be a written finding explaining why staying within the five percent guideline would be unjust or inappropriate. This can also be the case whenever the child spends a substantial amount of time with either parent, whether temporary or permanent.

In order for a modification of an existing order to be granted, the court must find that there is a substantial change in circumstances, where the mandatory the difference between the existing monthly obligation and the amount provided for under the guidelines, has to be at least 15 percent or $50 (whichever amount is greater). 

Failing to Pay Child Support

If your ex fails to comply with a court order requiring him or her to make child support payments, the best course of action is to work with an experienced family law attorney to file a Motion for Contempt/Enforcement to initiate a civil contempt and enforcement proceeding against them.

The Florida Department of Revenue, Enforcement of Child Support Orders also has some leeway in intervening when child support payments aren’t made. The Department can not only send late payment notices, but facilitate income withholding with your ex’s employer so that child support is taken out and sent directly to the Department before your ex is paid. And there are other provisions, such as driver’s license suspension, that can be implemented. However, unfortunately, there is also a pattern of families experiencing delays in obtaining child support payments from the Department of Revenue itself. In some circumstances, you may need to seek legal recourse, particularly when the delays are forcing you or your family to go into poverty.

Florida Divorce & Family Law Attorneys Serving Clients in Orlando, Sarasota, & Tampa

At HD Law Partners, we understand how important child support payments are to you and your family. The Florida divorce/family law attorneys at HD Law Partners provide knowledgeable, compassionate, experienced, and dedicated legal representation in all family law matters, including those covering child support. Contact us today for a free consultation and learn how we can help you with any child support issue.

Resources:

news.wgcu.org/post/survey-florida-kids-welfare-gives-2017-mid-year-update

wallethub.com/edu/best-worst-states-underprivileged-children/5403/

flsenate.gov/Laws/Statutes/2013/61.30

Tags: Child Support Payments after Divorce, Florida Divorce and Family Attorney, Florida Divorce and Family Attorneys
Posted in Child Support, Divorce, Family Law | No Comments »

On May 22, 2017, the U.S. Supreme Court made a unanimous decision that is being hailed by large technology companies and other patent holders, who have arguably been victimized over the years by what are known as “patent trolls,” or smaller companies that purchase patents only in order to demand royalties and sue for damages (instead of using those patents, for example). This particular type of activity was significantly interfering with the ability for these businesses to effectively run their business models.

Companies referred to as “patent troll” companies would allegedly target very specific courts in which to sue for damages—a practice known as forum shopping—because these remote federal courts had a reputation for friendliness towards plaintiffs, or the suing party. For example, more than 40 percent of all patent lawsuits were filed in federal court in East Texas, even though no major manufacturers are based there. As a result, one judge oversaw about a quarter of all patent cases filed nationwide.

Determining Forum for Business Lawsuits

Ultimately, the topic at issue in the case involved the important legal question of where a business can be sued (i.e. “where proper venue lies for patent infringement lawsuit brought against a domestic corporation”). In other words, can a business essentially be sued anywhere that they do business, or do patent suits have to be filed in the judicial district where the defendant resides? On this question, the U.S. Supreme Court pointed out that, according to precedent established by a 1957 U.S. Supreme Court case, a domestic corporation resides only in the state of its incorporation.

Decision Will Reduce Costs of Defending Patent Litigation

The decision will change the “litigation landscape” for patent suits moving forward. As some have pointed out, as a result of the decision, “forum shopping” is essentially over in these types of cases. The many patent cases previously (and purposely) filed in East Texas will now have to shift to other places, including Florida, and this will effectively reduce the overall costs of defending patent litigation for businesses.

Companies are, for the most part, grateful for the decision, especially those based in Silicon Valley, as they were allegedly often targeted by patent owners who used the threat of litigation in order to extract royalties.

Business & Corporate Law Attorneys Who Care

At HD Law Partners, our Florida corporate attorneys possess the experience, legal knowledge and commitment necessary to help prevent potential problems before they occur for businesses. With over 40 years’ combined experience in representing a variety of business clients, we provide strong legal representation to ensure your company’s assets and best interests are protected. Contact us today to find out how we can help your company—we have offices in Orlando, Sarasota, and Tampa.

Resources:

nytimes.com/2017/05/22/business/supreme-court-patent-lawsuit.html

supremecourt.gov/opinions/16pdf/16-341_8n59.pdf

Tags: Patent Lawsuits, Tampa Business Lawyer, Tampa Business Lawyers
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Child custody and visitation issues post-divorce can get messy and complicated. Violating custody agreements can even be considered a crime when they affect future custody and visitation arrangements, often to the detriment of the involved parties.

For these reasons, you always want to ensure that you are working with an attorney experienced in child custody and visitation matters. This can allow for the establishment of an arrangement that better fits the needs of the particular individuals and families involved, sometimes even preventing future conflict.

Florida Law on Violating Child Custody Orders

Under the law in Florida, anyone—including a parent—who commits interference with custody can be found guilty of a third degree felony. That being said, the law also provides for some defenses, such as when:

• The defendant (parent) reasonably believes that their actions were necessary to protect the child from danger (in terms of their welfare);
• The defendant (parent) was a victim of an act of domestic violence, or had reasonable cause to believe that their actions were necessary to protect themselves from an act of domestic violence; or
• The child was taken away at their own volition (without enticement), without the intention of committing a criminal offense with or against the child.

Protecting your Child Custody Rights

Rather than taking the risk of violating a child custody order or agreement, speaking with an attorney as a first step is the best way to ensure that you and your loved ones are protected. An attorney can help protect your rights as a parent and address any concerns you may have regarding child custody arrangements/visitation. An attorney may also assist with any necessary emergency relief, especially if you and/or your child are in danger or feel threatened. For example, working with an attorney to obtain a restraining order and/or emergency custody order from a judge.

In particular, if you are concerned that your child’s other parent may leave with your child, you may seek an order from the court barring that parent from doing so, without having to obtain notarized, written permission from both parents (or another court order), or requiring that parent post a bond or security in the amount sufficient to serve as a financial deterrent to abduction. If your concern is that your child will be taken outside of the country, there are additional measures that can be taken.

Contact Our Caring, Professional Florida Family Lawyers

Child custody issues are often the most volatile and contentious matters when it comes to family law. Decisions on when, where, and how often parents can see their children can have a lasting influence on their relationship and lives.

When it comes to these highly sensitive issues, particularly when things are volatile, you need to work with a caring, professional family law attorney who will look out for the rights and best interests of both you and your child. At HD Law Partners, our Florida family law lawyers have over 40 years’ combined experience in helping people navigate the (often complex) family court system. We put our knowledge and legal abilities to good use in helping you achieve the best results in your case, based on your family’s individual needs. Contact us today to find out how we can help.

Resource:

https://palmbeachpost.com/news/crime–law/update-mom-wanted-for-fleeing-with-baby-taken-into-custody-child-safe/LGaISYRrzvxjSYBFMYeUJL

Tags: Florida Family Law Attorney, Florida Family Law Attorneys, Florida Timesharing Disputes, Violating Florida Child Custody Orders
Posted in Divorce, Family Law, Timesharing | No Comments »

The First District Court of Appeal of Florida recently held that although HUD (Department of Housing and Urban Development) regulations are a condition precedent to foreclosure, borrowers must raise the issue and timely challenge any foreclosing bank’s compliance with the regulation in order to rely on these regulations in challenging a foreclosure.

In this case, the bank sought to foreclose a mortgage secured by a promissory note issued to the borrowers. The loan note specifically contained a provision providing that if the borrower defaulted by failing to pay in full any monthly payment, then the lender could require immediate payment in full of the principal balance remaining due, as well as all accrued interest, also known as “accelerating payment.”

HUD Regulations & Exemptions

The mortgage established the bank’s remedies in the instance the borrower defaulted on the loan, subject to limitations set forth by HUD regulations. Specifically, the issue in this case involved the right for borrowers to have a face-to-face interview with the mortgagor under some circumstances, but only if the mortgaged property was not located within 200 miles of the mortgagee, its servicer, or a branch office of either (amongst other exemptions). The trial court ruled in favor of the bank’s argument that the right to a face-to-face interview did not apply because the branch did in fact exist within 200 miles of the property.

Here, the appeal turned on both whether a HUD regulation is a condition precedent to foreclosure and whether compliance with the HUD regulations was properly and timely pled. First, the Appellate Court ruled that the HUD regulation was a condition precedent to foreclosure because contract provisions are conditions precedent or subsequent, where the express wording of the disputed provision conditions formation of a contract and/or performance of that contract on the completion of those conditions. Specifically, a condition precedent is an event that must take place before a contract is enforceable, while a condition subsequent is an event that may arise after the formation of a contract that allows for the termination of the contract. Here, the note expressly provided that it did not authorize the lender (bank) to accelerate on the loan when acceleration is not permitted by HUD regulations and the mortgage states that the bank’s right to foreclosure is limited by HUD regulations. In other words, the bank’s right to foreclosure on the mortgage arises when these conditions have been satisfied, making those conditions (the HUD regulations) a condition precedent.

However, in this case, the court also found that the borrowers failed to timely raise it as an affirmative defense, and even if they had raised it in a timely fashion, the evidence supports that the bank wasn’t required to comply because the property was more than 200 miles from the bank and its servicing branches.

Foreclosure Defense Attorneys Serving Orlando, Sarasota, and Tampa

If a bank brings a foreclosure case on a homeowner, it will need to work with an experienced attorney to ensure that any and all regulations have been complied with in conjunction with the foreclosure action. If you are dealing with a foreclosure issue, contact HD Law Partners right away to discuss your options with one of our experienced attorneys. We serve clients all over Florida, and we’re here to discuss your options.

Resource:

edca.1dca.org/DCADocs/2015/2022/152022_DC05_03102017_091041_i.pdf

Tags: Florida Foreclosure Defense Lawyer, Florida Foreclosure Defense Lawyers, Foreclosure Defense Orlando, Foreclosure Defense Tampa
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This means that the specific wording of these agreements is absolutely critical and can make all the difference between a prenuptial agreement that accomplishes what you need and one that falls short of ensuring that you and your loved ones are taken care of. It is also important to remember that even one mistake could invalidate the entire agreement.

The Prenuptial Agreement Law in Florida

Under Florida law, parties to a premarital agreement may contract with respect to the:

• Rights and obligations of each of the parties;
• Right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
• Disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
• Establishment, modification, waiver, or elimination of spousal support;
• Making of a will, trust, or other arrangement to carry out the provisions of the agreement;
• Ownership rights in and disposition of the death benefit from a life insurance policy; and
• Choice of law governing the construction of the agreement.

There are also disclosures that must be included in all of these agreements, including:

• Complete financial disclosure, including the value of the assets each party holds (to be sure, only postnuptial agreements require full financial disclosure; this is not a requirement for prenuptial agreements);
• Consideration (the marriage itself; as the premarital agreement is effective upon marriage);
• Net worth and income; and/or
• Any relevant execution formalities and/or waivers of equitable distribution of property, such as testamentary provisions, last will and testament provisions, alimony, interest in retirement plans and/or marital earnings, etc.

Divorce & Property Division Attorneys Serving Orlando, Sarasota, and Tampa

Financial planning is crucial for everyone. Coming to an agreement with your partner can help ensure that you have control over what happens instead of automatically defaulting to what Florida law dictates.

At HD Law Partners, our experienced family law attorneys understand what is at stake when it comes to marriage and divorce. We’ve been providing trusted legal representation for clients throughout Florida with over 40 years’ combined experience. When it comes to planning for your future, you want to ensure that you obtain experienced, skilled legal representation. Contact us today to find out how we can help.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html

Posted in Divorce | No Comments »

Both the Florida Senate and House passed Senate Bill 590 in May 2017. The bill will go into effect on January 1, 2018.

What does Senate Bill 590 mean?

Below are a few adjustments that will go into effect in January 2018, as discussed in a previous blog post regarding the FL alimony bill reform.

• Cap on alimony and child support combined: the combined award of alimony and child support should not exceed more than 55% of the payer’s net income. If the combined award exceeds the maximum percentage of the payer’s net income, the court will adjust the child support award to ensure that the cap is not exceeded. (Lines 361-367)
• Prohibition of changes to duration of alimony: the new bill will prohibit a court from changing the duration of an alimony award. (Lines 453-455)
• Remarriage: the remarriage of an alimony payer does not allow for a modification of alimony. The financial information for the new spouse will be off limits and inadmissible in court unless one claims that his/her income has decreased since the marriage. (Lines 559-579)

Click to read the complete Senate Florida Bill 590.

Experienced Florida Divorce and Alimony Lawyers

Are you facing divorce and have questions regarding the new alimony bill? When it’s a matter of importance, let our qualified alimony attorneys take the lead. HD Law Partner’s divorce and alimony attorneys have over 50 years of collective experience to provide you with the representation you need. Contact us today for help.

Florida Senate Bill 590 (pdf)

Posted in Divorce, Family Law | No Comments »

Wells Fargo has received its fair share of public scrutiny lately due to lax oversight and various legal violations associated with overseeing banking practices and the bank’s sham accounts scandal. Starting around 2004, internal investigations revealed an increase in “sales gaming cases,” whereby bankers were moving money into and out of customer accounts in order to make sales goals. All in all, it is estimated that Wells Fargo employees opened approximately 1.5 million bank accounts and applied for more than 560,000 credit cards that may not have been authorized by customers.

Perhaps most disturbingly, bank executives (most notably, the former chairman/chief executive officer and former head of the retail branch network) swept evidence of these practices under the rug, claiming that there were no serious, negative repercussions for customers. Many employees also reported feeling significant pressure to engage in these practices in order to meet sales goals.

Ultimately, in failing to undertake a proper investigation and involving  outside counsel in order to do so, those in charge were simply too late and too slow to take a close look at the company’s basic business model. When the scam ultimately caught up with the company, regulators assessed millions of dollars in fines and Wells Fargo’s reputation was arguably permanently affected.

Sales Goals & Stimulated Funding

One of the practices that the company engaged in is called stimulated funding, whereby employees transfer funds from one customer account to another in order to make a less active account appear to be “funded” by a customer.

Some of the employees implicated in the scam responded that the pressure to meet specific goals was so high—whereby daily and monthly “motivator” reports were constantly pitting one branch and region against another—that they experienced health problems as a result. Each January, bankers were even encouraged to submit lists naming family and friends who might open up accounts with Wells Fargo. The pressure was so strong that some would even postpone officially opening up accounts that had originally been opened in December – until January – just so that they would meet their January goals. 

Specific Legal Violations

The lawsuit brought against Wells Fargo alleges unlawful business practices, amongst other allegations. However, financial institutions that engage in practices like these also risk being prosecuted under the Racketeer Influenced and Corrupt Organization (RICO) Act for fraud—both mail and securities fraud—amongst other aspects. There have also been rumors that whistleblowers were intimidated or fired, which violates federal law as well.

Experienced Corporate Attorneys Providing In-House Counsel Services

At HD Law Partners, our experienced corporate lawyers in Tampa have years of experience assisting business clients in resolving a broad spectrum of issues such as overseeing corporate banking practices and financial services, as well as defending companies in consumer protection claims. We provide general counsel services, taking on responsibilities that are expected of in-house legal counsel. Contact us today to receive guidance on how we can help you and your business.

Resources:

nytimes.com/2017/04/10/business/dealbook/11wells-fargo-account-scandal.html?ref=business&_r=0

latimes.com/business/la-wells-fargo-live-updates-stumpf-ceo-could-wells-fargo-be-proscecuted-for-1475167015-htmlstory.html

Tags: Consumer Protection Claim Defense, Florida Business and Corporate Lawyer, Florida Business and Corporate Lawyers, Wells Fargo
Posted in Business Corporate | No Comments »