Pauly P.A. – German-American Law Firm

Category: General Civil And International Civil Practice

  • Copyright Law – Fair Use Index

    In the United States, one of the most important principles of copyright law is the “fair use” doctrine. While the author of a work typically possesses an exclusive right to the use of the work, the “fair use” of the copyrighted work is a defense to an infringement claim. See 17 U.S.C.  § 107.  The tasks for the courts is to apply a 4 factor test to determine whether or not the use of the copyrighted work is “fair use.”

    With the goal to make the principles and application of the fair use doctrine better understandable for the public, the website of the US Copyright Office includes a link to a searchable database which contains annotated summaries of judicial decisions. This Fair Use Index should serve as a helpful additional source for anyone considering the use and reproduction of copyrighted material.

  • Corporate Representation

    Clemens W. Pauly has successfully advised and represented individual managers and corporate boards with respect to their obligations in light of shareholder accusations of mismanagement. Informed and careful planning will go a long way in reducing the exposure of individual board members and executives in discharging their duties.

  • Supreme Court holds Padilla Does Not Apply Retroactively

    The Supreme Court found that Padilla v. Kentucky, in which the Supreme Court held that counsel must inform noncitizen clients whether a plea carries a risk of deportation, does not apply retroactively.

  • Florida Supreme Court Confirms Constitutional Homestead Rights of Certain Homeowners

    On October 4, 2012, the Florida Supreme Court clarified that even certain non-immigrants who own property in the State of Florida and whose families live permanently on this property may qualify for ad valorem tax relief (so-called homestead exemption). The Florida Supreme Court held that “the plain language of article VII, section 6(a), [of the Florida Constitution] permits every owner of Florida real property to apply for and receive ad valorem tax relief where it is sufficiently demonstrated that the owner has maintained on that property the permanent residence of another legally or naturally dependent on the owner.”

    With this decision, the Florida Supreme Court also held a Florida statute partially unconstitutional which required the property owner himself to establish his legal ability to permanently reside on his property in order to qualify for the homestead exemption.

    In the case at hand, Honduran husband and wife E-2 visa holders who owned a residence on Key Biscayne and lived there with their three US citizen children had applied for homestead exemption based on the fact that their children were residing with their parents in this residence. The Miami-Dade Property Appraiser had denied the taxpayers’ application for homestead exemption with the reasoning that the taxpayers themselves had failed to prove that their were legally able to live on the property permanently, since E-2 visas are non-immigrant visas. That decision had been overturned by the Miami-Dade Value Adjustment Board, and the Circuit Court as well as the District Court of Appeal later affirmed that the the taxpayers were indeed entitled to homestead exemption based on the evidence of their children’s permanent residence in this home. The Florida Supreme Court has now finally affirmed this decision. Please see the text of the full decision here.

    This case is not limited to E-2 visa holders; in fact it really has nothing to do with the immigration or visa status of the homeowner so long as a legal dependent lives on the property who has the legal ability to make it his or her permanent home. Therefore, children who hold legal permanent residence or US citizenship can thus qualify their parents’ homes in Florida for homestead exemption.

  • Is Avoidance Under CISG Art 64 a Powerful Remedy?

    Comparison of the CISG Remedy with Third-Party Rights – October 2004

    Please click here for the downloadable PDF.

     

     

     
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  • Recognition of Foreign Money Judgments

    Foreign creditors who find that their debtors have absconded and found refuge in the USA are often faced with holding money judgments from foreign jurisdictions but lack the knowledge or capacity to enforce those judgments in the US.

    While the question of how to enforce foreign money judgments in the US is left for each individual state to determine, a number of states have adopted and are following the Uniform Foreign Money Judgment Recognition Act which seeks to streamline this procedure and which gives foreign creditors a basic outline of how to register their foreign judgments.

    Two of the states which have adopted this act are Florida and New York. In these jurisdictions, the creditor will first have to register the foreign money judgment with the court having jurisdiction over the debtor. Notice of the registration is then sent to the debtor allowing him to raise certain defenses against the recognition. Should the debtor not raise any defenses then the court will recognize the foreign money judgment which can then be recorded and is enforceable in the same manner as any other money judgment of that state.

    Should the debtor object, then the recognition proceedings become a regular lawsuit; however with the exception that the court will not second-guess the foreign courts findings of fact and law and the basis of the judgment. Rather it will address only jurisdictional questions, such as if the debtor had an opportunity to participate in the foreign proceedings, if the foreign court had jurisdiction over him or if the recognition would violate “ordre public” of the recognizing state.

    Once the foreign judgment is recognized, it must be enforced in the same manner as US judgments are enforced. Most notably, some creditors are surprised to find out that in the US enforcement of money judgments will not be done as a matter of course by the courts, Sheriff or US Marshal, but rather the creditor must direct and seek enforcement procedures.

    The lawyers of this firm have sufficient experience in this field of law and are available to evauate your foreign money judgments and assist in their enforcement.

  • Foreclosure Defense

    South Florida is evidence of the real estate and economic crisis that this country currently faces. Foreclosure lawsuits are on the rise and bring a sudden end to the American dream. When in 2006 the number of foreclosure lawsuits filed in Miami-Dade County was less than 10,000, that number has increased to more than 56,000 in 2008 and the trend seems to further increase in 2009.

    Owners either react to TV and radio advertisements and end up paying high fees to companies promising “guaranteed results,” or feel forced into bankruptcy proceedings. And while bankruptcy may be the only option for some owners, other alternatives, such as attempts at loan modifications and short sales should be explored first. Such attempts should not be left in the hands of unregulated advisors but rather should be left to licensed and experienced attorneys.

    The law firm of Pauly P.A. advises clients with their real estate and foreclosure defense needs. Please feel free to contact us for a consultation.

  • CISG – The Concept of Breach

    In international sales transactions, the parties commonly choose to let the UN Sales Conventon (CISG) govern their rights and obligations under the contract. However, sometimes parties from different jurisdictions have a different understanding regarding the interpretation of certain rights and obligations under the contract. Case law has shown that with the availability of published CISG decisions on the internet, the interpretation of the Convention by judges in different countries have become more harmonized and predictable which is good news for a legal practitioner who must advise the client contemplating such a transaction in advance as to the risks involved and the likely outcome of litigation.

    In the year 2000, the author had published an article analyzing German and US interpretations of the concept of fundamental breach under the CISG. See: The Concept of Fundamental Breach as an International Principle to Create Uniformity of Commercial Law, 19 J.L. & Com. 221 (2000). Since then, case law both in Germany and the US has clarified previous erroneous decisions and we now have more certainty in the law.