Archive for the ‘Appellate Attorney’ Category

posted by Law Help on Oct 23

Intellectual property is one of the major types of capital assets. It is usually the result of a human brain’s intellect. It can be either tangible or intangible. Idea, process, and theory are some of the most popular forms of intangible category. Included in the tangible type is product, invention, or any such kind of tangible medium such as discovery, creation, or a specific knowledge.

Based on several factors such as background, intellectual output, dynamic technology, and economic and social interests, intellectual property in Thailand is classified into two sections: Industrial Property and Copyright. Industrial property is again categorized into patent for invention and utility model and design, trade mark, integrated circuit, trade secret, trade name, and appellations of origin.

A member of the World Trade Organization (WTO), Thailand’s each intellectual property is unique and has different requirements. Hence, they possess different legal treatments. All of the laws pertaining to the development, promotion, and protection of them are managed by the Department of Intellectual Property (DIP), which in turn is under the control of the Ministry of Commerce of the Kingdom of Thailand.

Among the responsibilities of the DIP are: protection of intellectual property rights under the Patent laws, the trade marks laws, the law of copyrights, and the trade secrets law; formulating rights for the purpose of the promotion of the creation of new intellectual property works; developing information technology systems; and restructuring and modernizing laws in order to ensure maximum efficiency and protection.

Further, a special court operates here for the protection of intellectual property laws in the Kingdom of Thailand, namely, the IP & IT (Intellectual Property and International Trade) court system. Some of the prominent features of this court system are exclusive jurisdiction on the enforcement of both civil and criminal matters of intellectual property and exclusive jurisdiction on the enforcement of arbitral awards in intellectual property and international trade matters.

Now we will discuss laws related to some of the major types of intellectual property, such as, patent laws, trade marks laws, and copyright laws.

Patent Law

– A patent is usually provided for an invention that is new as well as innovative. In some instances, petty patents are granted for the purpose of the protection of designs

– Al though, Thailand not a member of the Patent Cooperation Treaty (PCT), residents, nationals, and those with ongoing business existence in the country with a membership from the Paris Convention or the World Trade Organization can file for a patent in Thailand. However, the application for patent could be filed only in the country where the product it has been originally invented.

– Among the documents mandatory for filing of patent application are deed of assignment, power of attorney (if required), statement showing applicant’s rights, and applicant’s information

– Procedures included in a standard patent filing include steps like filing of application for patent, publication, request for examination, and the registration of the patent. All of the patent-related documents are translated to the Thai language

– It takes a period ranging 2-5 years from the date of filing for the acquisition of patent. But, the duration of patent registration varies according to the nature of patent, such as, invention, design, and petty

Trademarks

– Collection marks, service marks, and certification marks are some of trademarks that can be registered in Thailand

– Trademarks applications are usually handled by the Trademark Division of the Department of the of Intellectual Property

– For applying for trademark, the applicant must have a permanent business location in the country. A non resident can apply only through a Thai resident by granting him the power of attorney

Copyright Laws

– Copyright is usually for the protection of original works of authors engaged in various art fields, such as, literature, music, and architecture. Apart from these, it also covers works related to other fields such as computer software

A large number of law firms operate in Thailand to provide world-class services for Thai intellectual property related works. Usually, the services in connection with them are offered by local Thai law firms.

Most significant among the services offered by majority of these law firms are protection regarding patents, domain names, trade mark, and copyright registration; intellectual property management covering several aspects like drafting, negotiation, and business support; and investigation regarding patents and copyright. Also, covered in the services are trademark registrations, infringement challenges, compliance and protection of trade secrets, licensing, and providing confidentiality with regard to agreements.

However, before approaching a law firm in Thailand for acquiring intellectual property law services, a thorough investigation must be conducted with regard to its professionalism, reputation, and the way it renders the services. The internet also serves as a great way to hunt for the most suitable Thai law firm, since many of the service providers have their sites on the web with such details as services they render and their fee.

By: Wolfgang Jaegel

About the Author:

For nearly 30 years, Bamrung Suvicha Apisakdi Law Associates (BSA Law) has focused on providing reliable legal advice and services to the Thai and foreign business community in Thailand. We provide international standards of legal services while retaining the customs of the Thai business culture.

posted by Law Help on Oct 23

Arbitration is a legal term for the resolution of disputes outside the courts. For the resolution to take place through arbitration there must be an agreement between two or more parties to have the dispute resolved by an arbitrator. An arbitrator is generally a well qualified, impartial attorney who reviews the evidence, hears testimony and acts as the judge and jury by rendering an opinion based on the facts. Arbitration is becoming more common, and may be in your best interest.

Arbitration can be extremely beneficial for the following reasons:

– Arbitration can be much cheaper than litigation in court. Litigation in court generally lasts for several days, weeks or even months. This can be a long process because each party is required to bring in several witnesses. Expert witnesses can be extremely expensive to bring into court. An arbitration is less formal than a jury trial. This allows the parties to use expert reports instead of live testimony from a witness. In some cases this can save the parties several thousands of dollars in litigation expenses.

– Arbitration is typically shorter than a jury trial. Since arbitrators generally have a vast amount of expertise in the area of law at issue, it is not necessary to explain everything in detail as you would a jury. Parties to the lawsuits are required to be at the trials and arbitrations. Since arbitrations can be much faster than a trial, you will not have to miss as much work or be away from your responsibilities.

– Unlike trials, arbitration proceedings and arbitral awards can be private. Once a case has been tried in the court system it becomes public record, including the documents and allegations. If the parties agree ahead of time, arbitration awards can remain confidential and private.

– Unlike judges, arbitrators can be chosen. In a traditional court system are almost always selected at random. The parties to an arbitration can choose a single common arbitrator. When parties cannot agree on a common arbitrator, a panel will be used. Each party will choose one arbitrator and then the two arbitrators will agree on a third.

– Arbitration decisions are generally binding and final. There are limited avenues for appeal from arbitration awards. Because of the expense and time associated with appellate litigations, arbitration can be extremely economic and beneficial to ensure your case is not appealed and retried to a jury.

Numerous courts have adopted a strong policy in favor of arbitration and other types of alternative dispute resolutions for the reasons listed above. When faced with a legal matter that cannot be resolved short of litigation, consider the benefits of arbitration; it may be in your best interest.

By: Kenneth Christensen

About the Author:

Kenneth L. Christensen founded The Christensen Law Firm, PLLC, a personal injury law firm in Salt Lake City, Utah. He specializes in car accident, dog bites, wrongful death and serious injury cases. Learn more about Mr. Christensen at www.utahpersonalinjurylawfirm.com

posted by Law Help on Oct 17

Introduction – When we surf through the web we see many entities selling American Trusts, Corporations and other structures that they consider to be asset protection strategies. These run the gamut of corporations in the states of Wyoming, Delaware or Nevada, trusts of various types in different jurisdictions and other structures all based in the USA.

What is wrong here is that nothing in the USA can protect you from an aggressive judge who feels your assets should be seized to satisfy some sort of debt or perceived debt. You are subject to the mercy of any Judge who may or may not be following the law. Now if the Judge over steps his bounds you are faced with paying massive legal bills to correct the situation in the appeals process. Your odds of winning an appeal are probably under 1%. Ask some of these law firms that do these asset protection structures what their rate per hour is going to be to try and protect your assets if they come under attack from a financial enemy of yours. Figure on rates starting at $325.00 per hour (very low) and going up to $1250.00 per hour for a partner in a top-drawer law firm in the USA. Ouch.

So the point is judges do not always follow the law in this country therefore no asset protection structure is going to be very protective. Litigation in the USA is too prevalent and expensive to allow one to comfortably use this jurisdiction for asset protection. The legal expenses of defending the asset protection structure can wipe out your assets. If you locate your assets offshore the odds of ever having to defend them against a financial adversary are miniscule.

USA Private Detectives – Now we can talk about private detectives in America getting bank information, credit card information, phone records etc. Go look at the ads on the Internet and call these private detectives up, they even take credit cards. The credit card fraud perpetrators use these people to get dossiers on potential victims they are going to fleece through an identity theft scam, and they even use stolen credit cards to pay for the files for their next victims. They will get your bank statements, cell phone statements and bills, phone bills and records, credit reports, driving records, public records – just about anything you wish to pay for. Big law firms have retainer relationships with private detectives.

We can also go on to discuss identity theft from security violations perpetrated by private detectives concerning bank accounts, credit cards, public records. If you vest your Panama real estate in the name of an anonymous bearer share corporation how could that possibly help someone do an identity theft on you? If your bank accounts were covered by bank secrecy laws wouldn’t that help insulate you from identity theft? If your credit card came from a bank under bank secrecy laws wouldn’t that help protect you? Panama is a much safer place legally and practically.

Confiscation of Funds and Assets – Next problem is civil court ordered pre-trial confiscation of funds. This can happen in a civil matter such as divorce. Remember any judge on a Federal, State, County or City level can pretty much get at any asset located anywhere in the USA. Usually this is a temporary hold or confiscation pending some court date but could be permanent in theory and/or practice. They usually refer to these actions as liens, levies, seizures, garnishments, attachments, and even injunctive relief. The terms vary with the jurisdiction. In the USA some government agencies can confiscate funds without taking you to court, thus no trial, no being judged guilty by a court of your peers, no due process, no trial by judge etc.

There are other government agencies that would need to get a court order to confiscate your funds in a civil matter and other assets but the courts tend to listen hard to these agencies and usually give them what they want which is going to be your assets. There are no really anonymous corporations in the USA. There is no bank secrecy or privacy at all. There is really no secure way to protect your assets from confiscation from any judge for any reason the judge deems lawful in his or her opinion as a jurist. Sure you might be able to go to court later on after the confiscation and convince a judge to return all or some of your assets but with what funds are you going to pay for your legal defense since your bank accounts, real estate etc is now all frozen.

Now you have to convince a lawyer to take your case hoping he can get the judge to allow your money to be used to pay for your legal defense. These lawyers that want to confiscate your funds without you even getting to give any testimony don’t even want you to be able to pay for your defense. They will argue that they are so sure of winning it is a waste of money to let you use the funds to pay for a high-powered law firm. How can there be asset protection in this legal environment? The ONLY way to accomplish asset protection where the USA is concerned is to liquidate the assets and move the funds offshore where the money is placed in a corporate or foundation bank account, stock brokerage account or into real estate in Panama.

USA Civil Lawyers Methods – Let me explain what an Ex-Parte proceeding is to start off. It is a legal proceeding where one of the other parties is not present and probably does not even know such a proceeding is taking place, usually the defendant. Let us assume you “feel” you have a good case in a court of law against a person or corporation. You hire a reputable law firm and prepare a complaint with whatever evidence you may or may not have. Next you file a complaint but do not serve the complaint and at the same time file an emergency motion with the court for an Ex Parte hearing in the Judges chambers in private, before the other party even knows you are suing them. You basically tell the Judge that you feel you have an excellent chance of winning and you are most concerned that the defendant will attempt to flee with their assets when the lawsuit commences thus causing you irreparable harm in that the money damages you suffered will then never be recoverable from this alleged culprit who has never had a chance to say one word in his or her defense so far. You then ask the court to freeze the defendant’s bank accounts, real estate and other property of the defendant so the defendant cannot flee with the assets thus allowing you to recover your debt when the court rules in your favor, which you are so very sure, they will do. You of course post a bond to cover any damages in case you lose. This plays much better when you are using a large politically active law firm. Now it is going to be an unlikely event that you lose since your adversary now has all his money frozen so how is he or she going to pay for an adequate legal defense.

Essentially the victim (defendant) is suffering as if he were broke, all before he had a trial in court, and in this case even before he knew anyone is even suing him let alone having been convicted by a jury of his peers. Imagine you wake up one morning find all your bank accounts, stock brokerage accounts, and real estate all frozen by a court as a result of an ex-parte motion. Your cars, boats, planes have been towed away by the sheriff, all based on the allegations of some large rich corporation or plaintiff claiming you did something to them in a secret tribunal with the judge.

Secret tribunals are a very bad thing for asset protection. If the defendant argues that he needs the money for defense the plaintiff argues that it is going to be a waste of time and money to let the defendant blow money that should go to them on a legal defense, which will never prevail. They are arguing to prevent the fair trial by jury guarantees provided in the constitution and instead substituting in unconstitutional confiscation without due process and secret tribunals all of which are acceptable practices these days.

So now the defendant is essentially broke, how can he manage his business and retain adequate legal counsel? Mind you all of this happened without the defendant ever having a chance to defend himself in court. What if the plaintiff forged or falsified evidence against the defendant? This is one-tactic wealthy corporations and individuals employ against small business people that get in their way.

Don’t let your lawyer tell you this is rarely done. If it happens to you they will still insist it is rare. It is a common procedure in the USA just restricted to those who can afford to pay large law firms unscrupulous enough to do it. To your lawyer it may be rare because your lawyer doesn’t work in a firm with 750 other lawyers defending billion dollar conglomerates that routinely will spend a few million dollars on a legal case. Most of the Internet giants do this in their litigation; look up their court cases to see it happening. Government regulatory agencies have a very similar way of doing this in the court system as well. It operates slightly more openly but has the same effect – frozen assets before you get your day in court thus preventing you from operating your business and mounting a good legal defense since you have no money.

The Summary Judgment Scam – This is another one unscrupulous tactic lawyers use to get your assets away from you. They file a case in court and serve you. They wait the 20 or 30 days for you to respond. Assuming you respond with a denial or rebuttal against the claim they then file a summary judgment motion. The argument will be your defense is frivolous and you cannot possibly win and thus it is a waste of the courts time to allow this case to proceed to a full trial. It is a way to guarantee that you never win. They want the judge to summarily dismiss your counter claim if you filed one and summarily award the case to the plaintiff.

The more ethical use of this procedure is when the defendant is properly served and ignores the complaint. Thus the defendant is not fighting back so why have a full trial and waste the courts time and money. In a summary judgment you have no chance to confront witnesses against you, or be tried before a jury of your peers, not even a trail before a judge. No day in court for you. These summary judgment motions are nasty in that they in themselves are often unfounded and designed to make the defendant (you) spend money to defend against them. Sometimes in the course of a civil case there could be seven or eight summary judgment motions all of which are expensive to defend against. If the plaintiff decides to run up a legal bill by taking numerous depositions the defense could decide to ignore going to the depositions thinking these witnesses are basically irrelevant and thus saving money.

A dangerous game for sure but if the other side is taking depositions frivolously to run up a bill on both sides (common tactic) and one has limited funds you could still stay in the game by conserving funds and ignoring the depositions letting the plaintiff go to the depositions themselves. You could also ignore overly broad subpoenas served on the defendants or on witnesses. Rather than filing protective orders to restrict the discovery power of the plaintiff back to being on point you could elect to let them run wild on fishing trips to save money and you would still be alive in the lawsuit awaiting trial where you could win. The summary judgment motion cannot be ignored. To ignore it means an automatic loss for you. Technically if you had an ethical judge and you were defending yourself the judge would look at the summary judgment motion and protect your rights. While operating pro per (acting as your own attorney) may help spare you from a summary judgment your odds of winning at trial would be statistically extremely low, too low for wisdom.

Running Up the Legal Bill – Many lawyers practice this as an integral part of their practice in the USA. They bring the other side to their knees for a settlement by making the litigation very expensive. Forget the facts, the fight now becomes surviving the lawsuit long enough to make it to trial and thus pre-trial preparation is likely to suffer greatly. If you can’t keep paying the lawyers, you will not make it to trial (think summary judgment) and lose. The ways of them doing this are numerous. They must always appear to be legitimate in their quest for useful knowledge to help them make their case or the judge may award sanctions against them for filing frivolous motions (rarely ever awarded). The lawyers that practice this are expert at it since this is how they practice law. Below are some methodologies that are used to run up the legal bill for the other side. Of course these practices favor the one with the most money. Essentially with offshore asset protection we are reversing the game and making the plaintiff spend a big fortune if they want to chase your assets to Panama or Guatemala with little or no chance of success.

Excessive Discovery – All sorts of records are subpoenaed. Tons of witnesses are set for deposition. In one instance the large law firm set a witness for deposition every day for several months continuously, knowing it would shut down the small lawyers practice. He had to go to court and was fortunate enough to get the judge to limit the depositions to one per week but this dragged everything out much longer. All sorts of records are subpoenaed. This is to bait you to spend money limiting the discovery. All sorts of motions are made up. Some motions will have names never to be found in any law books. The large firms have databases of all sorts of motions they have gotten away with over the years.

Emergency Arbitration – This is a real gem. Here the plaintiff drags you and your expensive lawyers in to try to settle. Judges love this stuff since it can clear their calendar. If you are far from the court it can really run up your bill. Very wasteful way to get legal bills high.

Long Trials – Plaintiffs ask for many days for trial. This makes it harder to get on the calendar and drag things out longer so hopefully more discovery can take place, which means bigger legal bills. Courts have found ways to streamline litigation but lawyers have also found ways to get things perverted again so they can run up the legal bills.

Venue Shopping – Plaintiffs try to file their lawsuits in a jurisdiction that will be the most expensive for you to defend in or where they can have the best chance of winning due to prejudices based on the past rulings of the court. Courts and Judges do not like to reverse on themselves. There is even a way where they can file in a federal court for violation of state civil laws. Imagine that, sounds incredible to get a federal court to enforce a state law but have seen it done successfully. They do this to get a judgment that they can enforce anywhere in the USA and also to take advantage of the way the courts have ruled on sensitive issues in this district in the past. If you have to hire counsel thousands of miles away it gets expensive. Then add in all the travel time they can inconvenience you with like with their emergency arbitration, regular arbitration, and the 25 day trial itself for which your lawyer charges $3000 to $25,000 per trial day.

John Doe Lawsuits – Do you know what a John Doe lawsuit is? I will explain this unusual tool of legal chicanery that we know works in the USA.

Let us say you are a large billion dollar corporation and you feel you have been harmed in some way but are not able to identify the party or parties responsible for the tortuous act. Say someone has been violating copyright protected material of yours by distributing it for free or for gain. You file a lawsuit in Federal Court against John Does 1-99 stating that you will identify the actual defendants, as their identities are uncovered in the course of discovery. You send a law clerk down to the courthouse and he has the court clerk officially stamp the lawsuit and now this lawsuit is live. OK now you have the subpoena power of the federal court at your disposal and there is no opposing counsel to block your subpoenas and depositions. There is no opposing counsel because the people you are suing have no idea they are going to be sued and you are not yet sure who they are or if you can even sue them yet.

So you go about your merry way issuing subpoenas for bank accounts, phone records, stock brokerage accounts, insurance records, internet records (like every website they ever visited, all email sent – yes the big ISP’s there keep copies of all this forever), credit card bills, email accounts, etc. all very lawful USA subpoenas and the judge has no idea you are issuing these subpoenas unless he decides to read the files (not likely with no opposition) and there is no opposing counsel to fight to protect the privacy of the records on behalf of their client. The company receiving the subpoena has no obligation in the USA to let the customer (think phone, bank, credit card, credit bureaus, or internet records) know that a subpoena has been served on them requesting your records. They prefer not to tell you so they do not get caught up in a fight over the records and then they may have to retain their own lawyer and run up a bill.

If it is a lawful subpoena they can just submit to it and have no liability unless there is some sort of agreement in place to notify you or protect your privacy, which would be most rare. The lawyer might even take a few witness depositions to get the facts explained in more detail. The judge need not individually approve these subpoenas for them to be valid. Normally subpoena copies are sent to the opposing counsel who can make a motion to block or limit them called a protective order. Here with a John Doe lawsuit there is no opposing counsel to get in the way of the plaintiff who can run amuck using the power of the court to get all sorts of records violating the privacy of countless people without their knowledge.

What a great tool if you are an unscrupulous lawyer. By the way this tool could be used against you at any time to get your bank records, phone records, internet records, email copies, credit card bills etc all without your knowledge lawfully. This probably does not make you feel warm and mushy inside about having assets in the USA. So basically you don’t even need to sue a real person or corporation to get to use the subpoena power of the mighty US Federal Courts.

This works best in the Federal Courts by the way but could be applied to some state and local courts. Remember the entity being served with the subpoena like the bank or stock broker has no obligation to tell you the owner of the bank account that a subpoena was served on them for your records and they could even be ordered to keep their mouth shut so as to prevent flight with the assets. Another fine example of the sheer lack of privacy and asset protection laws in the USA whereby a stranger can examine your bank records based on a lawsuit with nobody.

If you haven’t thought of it consider what happens to your bank records after the opposing law firm has lawfully obtained them. Can they enter them as evidence into the lawsuit and thus make them public record? Sure. They enter them as evidence and file the copies of the bank records, phone bills, internet records like all your emails, every website the logs show you visited, credit card bills, stockbroker records all in the courthouse into the file. This file is a lawsuit against no one but still they got it into the public records where it could be picked up and put on the Internet, in newspapers etc. Once the information gets into the public domain anyone can use it lawfully, yes even law enforcement agencies for criminal prosecutions. Can they share this information with others? Good question to ask yourself now, not after something like this happens to you.

Defendants Fight Back – To illustrate the absurdity of their civil court system gone amuck we will site some unethical tactics that defendants use against the big law firms and Judges who favor the big firms.

Recusing the Judge – A recusal is a court action where you motion the judge to remove themselves for some reason usually pertaining to his bias or lack of objectivity (prejudicial) in the case. The motion must be presented to the judge at first. A judge will rarely recuse himself or herself. If they know one of the parties in their private life they would probably recuse themselves. Appellate courts are slow to reverse a judge who refuses to recuse himself unless there is overwhelming evidence. An example would be he was once married to one of the parties in the case. So if the big slick law firm got a judge for a reason then you can recuse the judge if you have grounds, which is rare.

What is done is the defendant files a lawsuit against the judge, which now gives objective grounds for a recusal and then asks the judge to recuse himself. The judge may get mad and try to get a summary judgment dismissing the case but then again you and the judge were still adversaries in a lawsuit and recusal is proper and if the judge refused the appellate court would probably grant the recusal.

Suing the Opposing Counsel – In this scenario one side starts personal lawsuits against the opposing counsel. This lets them take depositions and is mostly to harass the lawyers. Sometimes they even sue the wife and relatives of the lawyers. A dangerous and expensive game reserved for wealthy people but it does go on. This illustrates the actual absurdity of the court systems in that country.

Locking the Other Side Out From Decent Counsel – If you live in a small town this can work. Lets say it is a divorce case. Before filing for divorce go visit all the competent divorce lawyers in the city. Have a paid consultation with them to discuss the case. Explain some non-essential particulars to them and make sure you take notes at the meeting. Then when the other party to the divorce finds out they are being divorced they go out and look for a good lawyer and find out you have created a conflict of interest with all the experienced lawyers in the area. This drives them to go out of town. The out of town lawyer will generally as a rule do worse in court than a local lawyer who knows the judges and how they like to run their courtroom. Again another manifestation of a judicial system run out of control by aggressive lawyers.

USA Trusts and USA Corporations – I know one can argue that their USA trust or corporation is not responsible for personal debts and there are court cases to back this up. Then inquire as to how much money it is going to cost you to defend the asset protection strategy against aggressive collection lawyers who know just how to make it real expensive for you to defend against them so as to bring about a painfully expensive settlement. Unless you have many millions it will not be cost effective to fight. It is a legal jungle in the USA and we cannot see any daylight in trying to protect assets in the USA using any USA based vehicle including trusts, corporations, foundations etc.

USA Real Estate Asset Protection – We get calls constantly from people who want to change the title of real estate from their own name into the name of a Panama Corporation or Foundation to shelter the asset from litigation. This can be done but is probably not going to accomplish too much in terms of asset protection unless the other side is sloppy, careless and does not have much money to spend.

The lawyers pursuing you will be curious that you no longer own a house you live in that you used to own. They will find out about it from credit reports, public record checks, having private detectives talk to neighbors, and other means. Then they will ask you if you sold the house? If so where are the sale proceeds, where was the escrow etc. They will smell a rat and eventually will ask you questions in deposition and then go to the judge and ask the judge to set the transfer aside as a fraudulent transfer in that the property was not really sold it was just a straw man transaction to avoid creditors attaching the asset and also stick you with the additional legal expense they incurred setting the transaction aside. The judge may want to hear from the Panama Corporation before he sets the transfer aside but that isn’t going to do much good unless there is an actual escrow and real money changed hands and then they are going to ask you where the money you got from the sale is now.

The same thing would happen in the case of putting a mortgage on the property through a Panama Corporation. Where was the escrow? What did you do with the money, etc? Their plan would be to have the judge set the mortgage aside as fraudulent allowing the creditor to take the real estate away to satisfy a debt. If a piece of real estate never in your name was acquired through a Panama Corporation and paid for from Panama and your name never came up in any escrow etc then that would be hard for a collection attorney to associate with you and could be overlooked. The collection attorney could take your deposition and ask you questions about any and all assets you had if there is a judgment. This is post-judgment discovery and could occur in the form of interrogatories (written questions) about your assets including any assets transferred or sold in the last few months or sometimes they go back a year or longer depending on the state laws (they call this a look back period).

We never advocate lying as part of an asset protection strategy. This sort of lying is perjury, which is generally criminal so that is not a viable plan. They will ask about any corporations you own. If a structure can be created to let you survive the questioning without lying you would be ok. Not easily done and we are not going to get into this with someone inquiring on the phone or by email who is not a paid client even if they say things like “We are not going to pay you if we do not know what you are going to suggest we do”. Sorry we will remain non-responsive to such queries, which are reserved for paid clients only. The safest position is to liquidate real estate and move the funds to a safe jurisdiction. Hopefully, this is done before any court orders are issued.

USA Attorneys and Conflict of Interest – In the USA if you go to an attorney and ask them to help you shelter your assets offshore they are going to be unlikely to help you do it effectively or even take you as a client. Why?

First of all they do not understand the offshore world in all likelihood. The laws are different than what they are used to. Secondly they cannot operate offshore and must retain an offshore law firm in the jurisdiction they would need to operate in. This means they could get sued in the USA for something the offshore law firm did that the mutual client did not like. Thirdly if the client is evading a debt and the lawyer does a good job of protecting the assets he can be sued in the USA for assisting in a fraudulent conveyance. A fraudulent conveyance is an act whereby assets are removed from the reach of a creditor to avoid attachment.

What a creditor is, is ill defined in the USA. It could be adjudicated that there was a fraudulent conveyance even though there is no judgment or court order. The reasoning is you should have known that there was a likelihood of being sued or if you were sued it would be likely that you would lose. So even if you were in an active and costly legal defense and moved assets offshore it could be argued that you were doing so to fraudulently convey the assets out of the reach of the person that might one day be a creditor. Please note that not all movements of capital offshore are fraudulent conveyances. One can relocate their domicile offshore, one could buy real estate offshore, make investments offshore, start or buy a business offshore etc. The burden of proof should be on the plaintiff to prove that the movement of assets was to take the assets out of the reach of the creditor and if you could show other reasons why the funds were put into another jurisdiction then the case is far harder for the plaintiff to win and of course much more expensive. If it comes out in the debt recovery case that the lawyer assisted the client in moving assets offshore and then the lawyer is complicit and gets sued. Remember the lawyer most likely has malpractice insurance, which means he has deep pockets. Just getting sued means the malpractice carrier will minimally raise the rates on the lawyer or drop him, this is America and that is how things work there.

What the USA “asset protection” lawyer will most likely try to do is put the client into some sort of a superficial USA based asset protection structure. This will not be effective against many classes and types of financial adversaries. The lawyer gets to charge you legal fees and earn some money. If you wind up losing your assets in court the lawyer hides behind the decision of the court to take away your assets and thus avoids any liability or exposure. After people hear the features and benefits of these USA based asset protection structures they generally do not think to ask how much it would cost to defend the structure against an attack. They also do not ask what types of an attack can be effective against getting the assets in such a structure. The list is long. The USA lawyers will not appreciate such a discourse in that it starts to expose them to liability. You will hear things like each case has its own merits, etc. You are not going to hear anything with certainty. There are lawyers who specialize in busting trusts and asset protection structures in the USA. Sometimes it can be cheaper to settle with these lawyers versus drawn out fights using law firms who bill at $650 an hour and they know this and take advantage of it. The worst part of it is that nothing in the USA will keep your assets out of reach from snooping private detectives. Once assets can be tied to you then you become a target for trouble. Private detectives get nowhere in the offshore world.

Obstructing Justice Charges Against Your Lawyer – If your lawyer in the USA is representing you in some action where the plaintiff is a governmental agency (City, County, State or Federal) the lawyer could be charged with obstructing justice. If the case seems frivolous to the prosecutor and the judge who coincidentally get paid from the same employer, decide that the defendant really has no case and mounting a defense is just running up expenses and dragging things out then the lawyer representing you can be told that he is about to be charged with obstructing justice. The prosecutor could just outright so charge your lawyer if they desired to do so. This would mean the lawyer now has a conflict of interest with you and would have to step off the case. This would mean much greater legal expenses for you. Imagine trying to convince a lawyer to step in and represent you after this happened.

Offshore Asset Protection – In Panama and Guatemala lawyer games like those described above do not exist. Corporate and foundation assets belong to the corporation or foundation. Tagging on personal debts is extremely difficult to prove and there are tight statues of limitation concerning such fraudulent conveyances to defraud creditors (three years). USA lawyers cannot practice in Panama or Guatemala; they need to retain a local lawyer if they ever wanted to do anything in these countries. Government agencies from foreign countries have no levy, attachment or confiscatory powers in Panama or Guatemala. You and your assets are much safer in Panama or Guatemala.

-Aurelia Masterson, www.panamalaw.org

By: Aurelia Masterson

About the Author:

Aurelia Masterson is an associate of Panama Legal law firm (http://www.panamalaw.org). She has years of experience in the field and now shares her observations of current events, politics, and law with the Internet community. She can be contacted at: aurelia@panamalaw.org.

posted by Law Help on Oct 9

                                        

                                      TRAIL OF SADDAM HUSSIAN

 

                                       The hanging of the Ex-President of Iraq, Saddam Hussian was an outrageous instance of “victor’s justice” on the top of a mountain of atrocities in Iraq, beginning with its unjust and illegal invasion. It was a colossal political miscalculation by the US and its puppet regime in Baghdad to execute Hussain on the day of Eid-al-Azha. This aggravates the grave crisis in which the Bush administration west Asia strategy finds itself.

 

                                       The hanging must be regarded as a wild act savagery. It became possible because of the verdict of the Supreme Court Iraqi Criminal Tribunal (SICT). The judgment held Hussain guilty of killing of 148 Iraqi Shias in 1984 massacre. As per the law of natural justice a person should be given the rights like rule against bias and rule of fair hearing called as nemo in propria cause judex esse debet and  audi alteram partem respectively, under the law. Hussian deserved to be tried fairly on the number of occasions on the basis of irrefutable evidence. But the trial was a cynically manipulated force, which violated all the norms of fairness under the law.

 

                                      SICT was established by the occupying power, which rigged its rules of procedure to favour the prosecution. Most of its judges were given legal training in Britain. SICT was not even wholly sovereign, independent, impartial and legitimate. This was the opinion of the United Nations Working Group on Arbitrary Detention, WGAD established by the United Nations Commission of Human Rights in 1951. WGAD received its mandate from the General Assembly and the United Nations Human Rights Council. WGAD’s final opinion delivered in September, determines that, “the deprivation of liberty of Saddam Hussain is arbitrary being in contravention of Article 14 of the International Covenant on Civil and Political Rights, ICCPR to which Iraq and the US are parties.”

 

                                       Hussian was denied the elementary right to defend himself. Hussain did not have unimpeded access to his lawyers nor adequate time or facilities to prepare his defense. WGAD says that, “the presence of US officials at his violated his right to communicate with” counsel, mandates by ICCPR’s articles 14(3). Two of the Hussain lawyers were assassinated in October 2005 and June 2006. This seriously undermined his right to defend himself through counsel of his own choosing.

 

                                      SICT’s first chief judge, Rizgar Mohammad Amin, resigned because of the political pressure to prevent a fair trail. Judge Abdel-Rahman, who delivered the final verdict, was totally biased. He abruptly, arbitrary ended the trail in June 2006. He was made “statements incompatible with impartiality and the presumption of innocence enshrined in article 14(2) of the ICCPR” According to WGAD, Hussain could not obtain the attendance and examination of witnesses on his behalf under the same condition ass witnesses against him. This right to do so, guaranteed by the ICCPR was undermined by the failure to adequately disclose prosecution evidence to the defendants, the reading into the record of affidavits without an adequate possibility for the defense to challenge them, and the trails sudden termination.

 

                                     WGAD says it’s impossible to verify whether (the concerned) judges meet the requirements for judicial office, whether they are affiliated with political office, whether their impartiality …….. is otherwise undermined. Amnesty International and Human Rights watch both say the trail was a mockery of justice. One of Hussain’s defense lawyers, former US Attorney General Ramsey Clerk, was ejected from the court for saying that the trail failed to meet international legal standards of justice. Even before the trail ended, the Prime Minister Nuri Al-Maliki demanded that Mr.Hussain be hanged. More recently, he declared the hanging would take place before the end of the year thus usurping the judiciary’s prerogative to set the date. The final procedural clearances were obtained in unseemly haste and secrecy.

 

                                     The, then US President G.W.Bush welcomed Hussain’s hanging as “an important milestone on Iraq’s course to become a democracy.” A university of Maryland poll says 78% of Iraqis believe US troops are “provoking more conflict” than they are preventing 71% including 74% of Shias and 91% of Sunnis, want them out. The occupation has reduced Iraq’s once-prosperous middle level human development society to penury, disease and malnourishment. As many as 1.8 million people have fled Iraq and 1.6 million have been internally displaced. Homes in Baghdad have electricity for just 7.3 hours a day. The percentage of homes connected to sewers has fallen to just 37. Over four fifths of Iraqis say they are much worse of now than under Hussain.

 

                                     The grotesque irony is that while Hussain was hanged for killing 148 people, the leaders of the US and its allies won’t be tried for killing half a million Iraqi children through the post 1991 sanctions nor for the death of 655,000 Iraqi civilians since the March 2003 invasion, estimated by the John Hopkins school of Public Health. Nor will they be brought to justice for the supreme crime of committing unprovoked aggression against a sovereign nation. When Henry Kissinger was asked why he supported the Iraq war, he replied: “Because Afghanistan was not enough.” In the conflict with ‘racial Islam’, precipitated by 9/1, he said, they want to humiliate us. And we need to humiliate them. Many American policy makers share this view. They wanted to create a “demonstration model out of Hussain to show that America will destroy anyone with the temerity to flout its authority. These motives must be forthrightly and strongly deplored by the international community. It is simply not enough for the Indian government to express ‘disappointment at Hussain’s hanging and piously hope for reconciliation’ and ‘restoration of peace in Iraq’.

 

                                   The Iraqi High Tribunal appellate chamber uphold Saddam Hussain’s death sentence in the Dujail massacre case, Judge Aref Shaheen announced and said that the court decision was final. The toppled Iraqi dictator execution must take place before January 27, Shaheen said. Iraqi law requires death sentence to be carried out within 30 days. On November 5, Hussain was sentenced to death by hanging for his role in the killing of 148 of people in Dujail a mostly Shiite town north of Baghdad. Hussain’s attorneys appealed Chamber began reviewing defense attorney, Khalil-al-Dulami, said it came from “an illegitimate and unconstitutional court.”

 

                                  Saddam’s crimes of killing 300,000 Iraqis during his thirty-five years rule (1968-2003). In less than four years, George W. Bush has more than doubled that, with no end in sight. As war criminals go, Bush wins hand down. But while the man labeled the Butcher of Baghdad has few defenses, a number of prominent human rights advocates have criticized his death sentence, and the trial that preceded, it, as a travesty of justice. During the year long proceedings three defense lawyers were murdered, a were fired, lawyers boycotted the courtroom and Saddam told the tribunal to, “go to hell.”

 

                                The man who was hanged on the day of Eid was earlier called as a dictator or butcher, and was later after his death was called as a person who was killed by the US President, who did so only to acquire the land, oil, popularity and fulfill his wish. It was Saddam Hussain who got a lot of support from around the Muslim world and gained popularity so much so like an innocent person, media even gathered a lot of sympathy for him from the world. There were a lot of agitations for in regards with US and its policies. Later because of this only the US Presidential election took a change and Obama the new President, first black President took the office of the President, in order to bring new government with new policies in US. Even because of all this, Bush was shoed by an Iraqi journalist. And Obama came as the new President, in order to bring a change in the US policies.

By: SHEIKH WALI-UZ ZAMAN

About the Author:

LAW STUDENT FROM FACULTY OF LAW
ALIGARH MUSLIM UNIVERSITY
AMU , ALIGARH, UTTAR PRADESH
LUCKNOW

posted by Law Help on Oct 6

Traditionally, the task of legal writing has been assumed by the attorney. Increasingly now, however, paralegals are being asked by their supervising attorneys to prepare a variety of legal documents. Some documents are created for internal purposes, relied upon by the attorney in preparation for litigation or an appeal. Other documents are reviewed by the attorney, revised, and ultimately filed with the court. In law offices of all sizes, it is not uncommon for experienced paralegals to write case briefs, research memoranda, motions, memoranda of points and authorities, and even appellate briefs.

Legal writing can be intimidating for the most seasoned legal professional. Approaching your next legal writing assignment does not need to be a daunting experience if you can remember this pneumonic device:

Every Outstanding Paralegal Knows How to Write Well and Effectively.

The first letter of each word corresponds with a tip to help propel your legal writing skills. If you follow these ten tips, you will be well on your way to torture-free legal writing!

Tip #1 – Establish a G.O.A.L. for your writing project.

Before you put pen to paper or fingertips to keyboard, you must first gather some essential information. This information is the GOAL of your project.

G stands for the ground rules for your project. Whether you play golf, Monopoly, or checkers, a thorough understanding of the rules of the game is paramount. The same principle holds true in legal writing. Familiarize yourself with the document format that should be followed, the type font and font size that are required, and the margins that are acceptable. If you are writing a document that will be used internally, be certain to follow the format preferred by your attorney. Use samples of previously submitted work as a guide in completing your assignment. If you are preparing an appellate court brief, you should know the procedure for incorporating references to the record and the transcript. If you have any questions about the technical requirements for your document, ask your attorney or consult the local rules of the court where the document will be filed. Or, call the clerk of court. Because failure to follow the court rules may be grounds for the clerk to reject your filing, it is always prudent to ask questions and get it right the first time.

O stands for the objective of your project. Now that you know the ground rules, you need to know how to “win” the game. What is the purpose of your assignment? Are you writing to inform or to persuade? Are you writing a research memorandum to inform your attorney about the client’s viable defenses under state law? Or, are you writing to persuade the court to deny the opposing party’s motion for summary judgment? Understanding the objective of your project enables you to better approach the way you conduct your research. Keeping the objective in mind also helps you focus and structure your writing, safeguarding against the likelihood that key information will be overlooked or omitted.

A stands for your audience. Whether you are writing to your attorney, another paralegal, opposing counsel, the client, or to the court, it is important to tailor your writing style, tone, and formality in a manner appropriate for your intended audience. For example, the use of contractions is generally considered too informal when writing to the court, but may be acceptable when writing a research memorandum to your attorney.

L stands for the limitations for your project. When your attorney gives you an assignment, you should confirm the due date. If you are preparing a document that will ultimately be filed with the court, you should also know the filing deadline. Depending upon the type of document you are preparing, it will be important to know the applicable statute of limitations for the cause(s) of action being asserted. Additionally, you should consult the court rules for any restrictions on the number of pages your document may include and the number of exhibits that may be appended.

 Tip #2 – Organize your research materials.

Hours of research are meaningless if that seminal case you need is buried somewhere under the piles of paper and stacks of folders on your desk. For easy organization and worry-free retrieval, hole-punch your research materials and file them by category in a three-ring binder. Use color-coded tabs and specially marked dividers to separate your materials into primary and secondary authority, mandatory and persuasive authority, and federal and state authority.

In the upper right-hand corner of the first page of each case you pull, note the client-matter number, the date you retrieved the case, and the legal principle(s) for which the case is important. When you file the case and need to pull it later, you won’t have to re-read it to recollect why you printed it out in the first place. Create an index or table of contents of your research materials and update it as necessary. Save the document on your PC and place a hard copy in the binder.

 Tip #3- Prepare an outline.

After you’ve completed your research, but before you begin writing, prepare an outline of the information you will include in your document. Use the required format for your document as a tool in creating your outline. For instance, if you are writing an appellate brief, your outline should mirror each section of the brief, including the statement of the issues, statement of the facts, and argument components. In your outline, for each issue you intend to discuss, include an IRAC (Issue-Rule-Analysis-Conclusion) breakdown.

If you are writing a legal memorandum or appellate brief, list the major points you will address in your argument section and the subheadings that will go under these points. Remember that stronger arguments should appear before weaker ones. After you have prepared a preliminary outline, break it down further into paragraph levels. Briefly identify the topic of each paragraph and list the information that will be included in the paragraph along with the applicable references to authority you will cite. This process may sound laborious, but investing significant time to prepare your outline will actually save you time in the long run.

Tip #4 – Keep your writing simple and short.

With apologies to your college English instructor, legal writing ain’t about using flowery phrases or melodic prose to convey your ideas. On the contrary, legal writing is about reducing the complex to the simple. The abstract to the concrete. And the superfluous to the necessary. The line in Rudyard Kipling’s poem “If”, where he writes of walking with kings but not losing the common touch, sums up what should be your approach to legal writing. Even though you may be addressing attorneys and judges with multiple advanced degrees and countless years of legal experience, you should write your document in such a way that the average person can understand your message. Assume the person who will read your document has never attended law school or graduated from a paralegal program. Keep your writing simple, but don’t sacrifice precision. State the facts, raise the issues, support your argument with the authority, and end with an appropriate “call to action.” In other words…get to the point!

Good legal writing is also short, or concise. Avoid using multisyllabic words when a shorter word choice will prove just as effective. Substitute a single word for a lengthier phrase. “Filed an action against” becomes “sue” and “with regard to” becomes “concerning.” Write in short sentences (25 words or less) to heighten your reader’s understanding. Likewise, shorter paragraphs help your reader better digest your message. You don’t eat a steak all at once. Rather, you take your time, savoring it piece by piece in several bites. Similarly, you don’t want to overwhelm the reader with a paragraph that extends three-quarters of the page. Divide longer paragraphs into more palatable two or three short paragraphs.

Tip #5 – Hold the reader’s interest.

Good writing captures the reader’s interest at the beginning, builds upon that interest throughout the middle, and satiates that interest at the end. Effective legal writing is no different. As you construct your document, remove all barriers and roadblocks to holding your reader’s attention. I suggest you include a built-in navigation device. At the beginning of your document, give your reader a roadmap of where you are going and explain how you intend to get there. Throughout your document, insert mile markers to orient your reader as to how the section he or she is reading fits within the bigger picture.

Prevent reading-induced hypnosis by varying the length of your sentences and paragraphs. Use headings and subheadings as appropriate to break up huge blocks of text on the page. Incorporate sufficient white space to give your readers a visual (and mental) resting place. Emphasize key points or phrases with special formatting such as italics and bold, but be careful not to overdo a good thing. Use bulleted lists as appropriate. Strategically placed graphs, charts, and tables add substantive value to your writing and also help further engage your reader.

Tip #6 – Tie it together with topic sentences and transition bridges.

The previous tip discussed the importance of providing your reader with direction at the outset of your document and guideposts along the way. An effective way to accomplish this is to start each paragraph with a topic sentence to introduce the subject you intend to discuss. End each paragraph with a transition bridge to the next paragraph. Words such as “however,” “moreover,” and “in addition” can help create a seamless transition between independent, but related, thoughts. Using transition language as you move from one point to the next contributes to the overall cohesiveness of your writing.

Tip #7 – Write in active voice.

It is always a good rule of thumb to use active voice in any kind of writing. To do this, arrange your sentence so that the subject performs the action expressed by the verb. In the majority of instances, a sentence written using active voice is more clear and direct than one written using passive voice. Notwithstanding this general principle, there may be times when the facts in your case dictate the use of passive voice. For example, in a criminal case where your attorney represents the accused, you certainly would not want to write, “The defendant assaulted the victim.” Instead, you would write, “The victim was assaulted.”  

Tip #8 – Write in positive voice.

Use a glass half-full approach in your legal writing by using positive voice. Change negative statements into affirmative statements. Compare “The defendant should not be prohibited from asserting a contributory negligence.” with “The defendant must be permitted to assert a contributory negligence defense.” Notice how the second sentence reads better and is more direct.

Tip #9 – Avoid legalese and legal jargon whenever possible.

As creatures of habit, we often find it challenging to embrace new ways of doing things. We have a tendency to fall back on the familiar. Thankfully, the foothold this kind of resistance has gained in the area of legal writing is going the way of the pet rock. Law school professors and legal practitioners alike are eschewing the use of archaic legal jargon and legalese. So should you. Legalese and jargon only function to obscure the meaning of your message. Include them only if absolutely necessary. (If you come across an “absolutely necessary” instance, let me know.)

Tip #10 – Edit your writing for the 7 Cs.

After you complete your first draft, carefully review your work and edit for the following:

Clarity – Aim for specificity. Add information if needed to clarify your point. Remove information that makes your point muddy. Rephrase or re-work passages to ensure your point is conveyed clearly and meaningfully.

Completeness – Use the outline you prepared from Tip #3 as a checklist to determine if your document is complete. Review your document to see if you included the required elements and necessary information.

Conciseness – Eliminate unnecessary words and fillers. Remove redundancies. Remember to keep your sentences and paragraphs simple, short, and to the point.

Concreteness – Eliminate lengthy legal phrases and substitute shorter concrete words and phrases. “Apprehended the suspect” becomes “arrested Mrs. Johnson.”

Consistency – Read through your writing to ensure your use of tenses and pronouns is consistent from beginning to end. Check to see that you used the same word or phrase each time you referred to the same concept. For example, if you use the word “terminated” to characterize what happened to your client in the first section of your writing, you’ll want to change any references to your client being “dismissed” or “fired” that appear later in your document.

Continuity – Review your work for organizational continuity. Sentences and paragraphs should flow logically from one to the next. Read the first and last sentences of each paragraph. If you are able to glean the major points by reading these sentences alone, your writing has excellent continuity.

Correctness – Verify the legal authority you cited is still valid. Double-check your citation format. Review your work to see that you have accurately stated the facts. Finally, carefully proofread your work for spelling, grammar, typographical and other kinds of errors that will detract from your message.

After you have made these revisions, ask a friend or family member who does not have a legal background to read your work. Then, listen to the feedback. Make a second round of revisions as necessary. And then? Breathe easy because you are done. Congratulations.

By: Lisa M. Newman

About the Author:

Lisa M. Newman is the Founder and CEO/President of Marigold Consulting in Atlanta, GA. The firm offers interactive personal growth classes, professional development workshops, and corporate training seminars on a variety of topics designed to help participants bloom out of proportion. For additional information on these services or to schedule a session for your group, please visit www.marigoldconsulting.com.

posted by Law Help on Sep 24

 

BANKRUPTCY LITIGATION IN USA

 

INTRODUCTION

 

A bankruptcy case is a special kind of a civil case, involving people or companies who can no longer pay their debts.

 

Congress has established a special court, called as the bankruptcy court to adjudicate bankruptcy matters. Bankruptcy protects both the debtors and creditors

 

HIERARCHY OF COURTS

 

Ø     US Supreme Court

 

Ø     The Circuit court of appeals

 

Ø     The district courts or bankruptcy appellate tribunal (BAP )

 

Ø     The bankruptcy courts

 

GOVERNING LAWS

 

Ø     Title 11 Federal rules of bankruptcy procedure

 

Ø     Title 18 Crimes (sec.151 through 158 deals with bankruptcy fraud and other bankruptcy crimes). E.g.

 

Ø     Title 26 IRC Implication of tax avoidance

 

Ø     Title 28 Judiciary and judicial process

 

Ø     Federal rules of appellate procedure

 

Ø     Federal rules of Evidence.

 

BANKRUPTCY JUDGESHIPS

 

The judges to the bankruptcy courts are appointed by the judges of US circuit courts for such circuits for the period of 14 years. Currently there are 324 judgeships in the US.

 

THREE MAIN CHAPTERS ON BANKRUPTCY

 

There are mainly three chapters under the bankruptcy law in USA.

 

Chapter 7: liquidation

 

Chapter 11: Reorganization

 

Chapter 13: Adjustment of debt of the persons, having regular income.

 

CHAPTER 7: LIQUIDATION

 

Bankruptcy under this chapter offers a fresh start for the individuals. In this chapter, most of the debtor’s property will be sold to raise the amount of the creditor. If the value of the asset is more than the debt owed, the remaining amount will be paid to the debtor.

 

After, 2005 enactment by the congress, it is mandatory to pass the Means test in order to qualify for the filing bankruptcy under chapter 7.

 

How the case move through under chapter 7

 

1. Petition

 

The case begins with the filing of voluntary petition with the clerk of the bankruptcy court. Debtor must also file the following documents shortly after filing the petition, they are

 

1. the list if creditors

 

2. the schedule of assets

 

3. the statement of financial affairs

 

If the debtor is not in position to pay the fees at once, he can request for payment in installments.

 

It is not necessary that always the creditor must file the petition. Even the creditors can initiate the bankruptcy proceedings; these are called as the involuntary petitions. If the debtor has not more than 11 creditors, then the one creditor can file an involuntary petition. If it is more than 12 creditors, three creditors must join together to file a petition.

 

2. Automatic stay

 

Once the petition filed before the bankruptcy court, there will be an automatic stay. It stays the suits, claims, appeals filed against one another before or after

 

3. Trustee selection

 

After filing a voluntary petition in the bankruptcy court, a notice will be sent to all the creditors. The creditors are required to be present at the trustee selection. Then the case will be assigned to bankruptcy judge and added to the docket of the US Trustee. US trustees maintains the list of case trustees.These case trustees will liquidate the debtor property at the auction or at the private transactions and collect the money, deposit it in the account maintained for that purpose.

 

4. Creditors meeting

 

It is also called as the Sec.341 meeting. Interim trustee will preside over this meeting. After a notice issued to the creditors, creditors have to come before the court and attend the meeting. If the creditor is not found, it will be published in the newspapers on which date the creditors have to attend the court.

 

It is compulsory that the debtor must be present at the meeting. The debtor will be put under oath and he will be asked several questions by the creditors. The purpose of this meeting is get to know hidden assets or undervalued assets of the debtor. And finding out is there any claim by the debtor which would yield more money if pursued. And the goal is to accumulate more money for the bankruptcy estate.

 

5. Liquidation of assets

 

After the creditors meeting, the case trustees will sell the asset of the debtor either at the auction or at he private transactions.

 

If the debtor is the business, it will cease to exist. If it is an individual he will be discharged. However certain debts are not dischargeable such as the alimony, taxes etc.

 

6. Collection of the bankruptcy estate

 

Once the assets are liquidated, case trustee will deposits the amount in the bank account, along with any other amount accumulated from the legal suits.

 

7. Distribution of the bankruptcy estate

 

After the deposit of amount in the account, the amount deposited will be distributed among the creditors.

 

Majority of the cases are no asset cases. If there are no assets to distribute then the case trustee will simply file before the court a report no assets to distribute.

 

Even if there is money to distribute, sometimes the creditors would not get the whole amount which is due to him by the debtors. Sometimes some creditor will get less, some creditors will get more.

 

The question arises in our mind is that, who will be paid first. At the stage of distribution, the administration of the estate such as the professional fees of the trustee, attorney or accountant appointed by the bankruptcy estate will be paid first.

 

8. Claims

 

There are two kinds of the claim and creditors in the bankruptcy. One is the Secured claims and other one is an unsecured claims. Secured claims are one that gives the creditor an interest in property as assurance of payment. For example people will mortgage house in secure of loans. If the loan is not paid there will be foreclosure and sale of the house. Holder of unsecured claims cannot look into any such payments.

 

Under unsecured claims are again divided into two: Unsecured priority claims and unsecured non priority claims. Unsecured creditors who have priority must be paid first before paying to unsecured non priority claims.

 

In Campbell v. Countrywide Home Loans, Inc., 2008 U.S. App. LEXIS 21405 (5th Cir. October 13, 2008, Filed)

 

It was held that an automatic stay serves to protect the bankruptcy estate from actions taken by creditors outside the bankruptcy court forum, not legal actions taken within the bankruptcy court.

 

9. Conversion

 

A chapter 7 debtor has right to convert the chapter 7 case to one under chapter 11 or 13 at any time during the proceedings.

 

In re South Star Oil Co.,2008 Bankr. LEXIS 2426 (Bankr. D.Or., September 15, 2008, Decided) 

 

Held that a cause for conversion or the dismissal includes a number of criteria, including substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation

 

In Toibb v. Radloff, 501 U.S. 157 (1991)

 

In this case the voluntary petitioner, after discovering stock in an electronic power company, has substantial value, decided to avoid its liquidation by seeking conversion to chapter 11. His motion was granted and he was allowed to file a reorganization plan. But the court dismissed his petition finding that he did not qualify for relief under Chapter 11 because he was not engaged in an ongoing business. The District Court and the Court of Appeals affirmed.

 

10. Dispute resolution

 

The petition may be contested after filing the bankruptcy petition through the adversary proceedings. for example one party may initiate proceeding against the other by filing the complaint and questioning the validity of the petition such will be adjudicated if the parties are willing to adjudicate. There may even be motions objecting to the discharge of the debtor, objections to the sale of debtor’s property.

 

In Dewsnup v. Timm et al].

 

Petitioner Dewsnup, the debtor in a case under Chapter 7 of the Bankruptcy Code, filed an adversary proceeding, contending that the debt of approximately $120,000 that she owed to respondents exceeded the fair market value of the land securing the debt and that, therefore, the Bankruptcy Court should reduce respondents’ lien on the land to the land’s fair market value pursuant to 11 U. S. C. § 506(d), The court determined that the then value of the land in question was $39,000, but refused to grant the requested relief and entered a judgment of dismissal with prejudice. The District Court and the Court of Appeals affirmed.

 

Held: Section 506(d) does not allow Dewsnup to “strip down” respondents’ lien to the judicially determined value of the collateral, because respondents’ claim is secured by a lien and has been fully allowed pursuant to § 502 and, therefore, cannot be classified as “not an allowed secured claim” for purposes of the lien-voiding provision of § 506(d). Pp.414-420.

 

11. Discharge and closing of case

 

After the property of debtor is sold and distributed among its creditors, the debtor will get discharged. However the debts like alimony, child support and certain taxes which are due to the government cannot be get discharged.

 

In Roe v. College Access Network , 2008 U.S. App. LEXIS 21362 (10th Cir., October 9, 2008, Filed) 

 

It was held that a permanent medical condition will certainly contribute to the unlikelihood of a debtor earning enough money to repay her student loan debt, but such a condition is not a prerequisite to discharging the debt.

 

In re Hlavin, 2008 Bankr. LEXIS 2397 (Bankr. D. Ohio, September 30, 2008, Decided) 

 

It was held that under 11 U.S.C.S. § 707(b)(1), the court may dismiss a case filed by an individual debtor under Chapter 7 whose debts are primarily consumer debts if it finds that the granting of relief would be an abuse of the provisions of Chapter 7.  

 

12. Appeal

 

When there is a discharge of the debt or dismissal of the bankruptcy petition, there may be an appeal. If the petition dismissed, the debtor may go an appeal. If there is discharge without any payment to the creditors, the creditors may go an appeal. Appeal may be preferred either to the district court or to the bankruptcy appellate panel. Where there is no bankruptcy appellate panel, appeal is always preferred to the district court.

 

CHAPTER 11: REORGANIZATION

 

This chapter is known as the business reorganization chapter. Sometimes individuals may also seek remedy under this chapter. Once the petition is filed under this chapter the debtor shall also file plan of reorganization.

 

Debtor is also required to file following documents along with the voluntary petition.

 

Ø     Schedules A through J

 

Ø     Summary of Schedules

 

Ø     Statement of Financial Affairs

 

Ø     Matrix

 

Ø     Statement of No Prior Filing

 

Ø     List of Equity Security Holders

 

Ø     Corporate Resolution (when applicable)

 

Ø     Pro Se Debtor’s Statement

 

How the proceedings takes place under chapter 11

 

1. Petition

 

There will be a voluntary or involuntary petition

 

2. Automatic stay

 

There will be an automatic stay after the petition is filed.

 

In re Forletta, 2008 Bankr. LEXIS 2491 (Bankr. D.N.Y., October 10, 2008, Decided) 

Held: debtor could not extend the automatic stay under 11 U.S.C.S. § 362(c)(3)(B) because the debtor’s earlier Chapter 7 proceeding was closed on a final decree and discharge under 11 U.S.C.S. § 727 and § 362(c)(3)(B) did not apply unless the case had been dismissed under 11 U.S.C.S. § 707. Extension of stay was warranted under § 362(c) (3)(C).

 

3. Continued control by management

 

As in chapter 7 case, the US trustee doesn’t appoint a case trustee; instead the US trustee monitors the progress of the case. He reviews the financial reports of the debtor, who continued to operate the business and adequacy of the disclosure statement and reorganization plan.

 

4. Role of the creditors committee

 

There will be an unsecured creditors committee appointed by the US trustee who is willing to serve monitor the case. Unsecured creditors cannot look at he specific property of the debtor.

 

Difference secured claim and unsecured claim

 

A secured claim is one that gives the creditor an interest in property as assurance of payment, such as a mortgage on the house to secure a home loan; the holder of an unsecured claim can’t look to any specific property of the debtor for payment. The committee negotiates with the debtor to develop a plan that will protect the interests of unsecured creditors. Because there is no case trustee in a Chapter 11 case, the committee has the authority to perform investigative functions, such as reviewing the debtor’s assets, liabilities, and financial conduct to determine its ability to continue in business.

 

5. Creditors meeting

 

It is also called as the 341 meeting. It may take place within 20 to 40 days of filing the bankruptcy petition. Debtor takes an oath in this. Usually US trustee or the assistant presides at the 341 meeting.

 

6. Plan of reorganization

 

It is a Debtor’s proposal to repay the amount in certain period. Debtor files it in the court for its approval.

 

7. Disclosure and disclosure statement

 

The debtor must file the disclosure statement which must be approved by the court. Once this filed there will be a disclosure hearing. Sometimes the creditors may oppose to it. Once the disclosure statement is approved he or she will also set a time limit on voting for or against the reorganization plan.

 

8. Voting and confirmation

 

Once the debtor has the reorganization plan the court must approve or confirm the plan. Before confirmation hearing, each class of creditors votes separately by mail on whether to accept the plan. If a majority of the voters in each class and holders of two-thirds of the amount of claims in each class approve the plan, the court will generally confirm the plan. The plan then becomes binding on all of the pre confirmation creditors, whether they voted for or against it.

 

If majority of the creditors did not approve the plan, then the debtor may attempt a cram down.

 

9. Discharge

 

After the reorganization plan is confirmed the debtor gets a discharge. Most claims for pre confirmation debts are wiped out. The debtor only has to pay the debts spelled in the plan.

 

Custom Mortg. Solutions, Inc. v. Hood (In re Hood), 

 

2008 Bankr. LEXIS 2474 (Bankr. D. Ill., October 2, 2008, Decided) 

A plaintiff has the burden of proof by preponderance of the evidence to show that the debt in question is non-dischargeable under 11 U.S.C.S. § 523(a)(6).

 

In re Timmerman, 379 B.R. 838, 2007 Bankr. LEXIS 4055 (Bankr. D. Iowa, December 10, 2007, Decided) 

Debtors were estopped from seeking dismissal of their bankruptcy action under 11 U.S.C.S. § 707(a) because they falsely stated that they had obtained credit counseling and had taken advantage of the bankruptcy laws for 21 months, and granting their motion would have prejudiced their creditors and impaired the integrity of the bankruptcy system.

 

10. Paying creditors

 

The debtor has to make payments according to the reorganization plan. If not met accordingly, the creditors can seek the liquidation of the debtor by moving to convert the cases to chapter 7, or they may sue to force the debtor to make the plan payments.

 

11. Dispute resolution

 

Suits, contesting matters will be resolved if any.

 

12. Appeal

 

Appeal is preferred either to the bankruptcy appellate tribunal or to the district courts.

 

CHAPTER 13:ADJUSTMENT OF DEBT OF THE PERSONS, HAVING REGULAR INCOME

 

Under this chapter debtor develops a plan, how he  or she proposes to repay creditors. By agreeing to use future income for plan payments, the debtor is able to keep his or her property.

 

Difference chapter 7 and chapter 13

 

In chapter 7 the debtor property is liquidated but it does not include future income.

 

But in the chapter 13 debtors is allowed to keep his property and the debtors have only 15 days to propose a plan, in contrast to the 120 days of chapter 11 debtors.

 

How the proceedings takes place

 

1. Petition

 

Debtor files a voluntary petition before the court. He is required also to file following documents:

 

Ø     Schedules A through J

 

Ø     Statement of Financial Affairs

 

Ø     Matrix

 

Ø     Statement of No Prior Filing

 

Ø     Plan

 

Ø     Disclosure of Compensation – FRBP 2016(b)

 

Ø     Pro Se Debtor’s Statement

 

Ø     Filing fee

 

2. Automatic stay

 

Once the petition is filed before the court, every suit concerning the debt recovery will be stayed.

 

.

 

3. Creditors meeting

 

It is also called as the 341 meeting. It may take place after the 15 to forty days after the petition is filed. Both creditors and the debtor attend it.

 

Chapter 13 trustees or Standing trustee presides over the 341 meeting.

 

4. Confirmation

 

Before the debtors plan takes effect, the court must approve the plan. It is the standing trustee’s job to review the plan and advice the court whether it seems workable or legal. Standing trustee has to recommend the plan. Creditors have no right to propose a new plan but they can oppose the plan.

 

5. Paying creditors

 

Within thirty days after filing the plan, the debtor must start paying the creditors. Debtor pays it to the trustee who then pays it to the creditors as provided for in the plan. The debtor has up to five years to pay of his debts.

 

6. Dispute resolution

 

Adversary proceedings if any contested matters will be resolved at this stage.

 

7. Discharge

 

After completion of plan payments, the debtor will receive a discharge. It discharges all debts except the long term home mortgage debts, alimony, child support obligations, and certain education loans.

 

8. Appeal

 

Appeal may preferred either to the district court or to the BAP.

 

By: sadanand naik

About the Author:

Hello -I am a lawyer working as Legal Assistant in the LPO division of Cerebra Integrated Technologies Ltd, Bangalore, India.

posted by Law Help on Sep 22

I. Appellate Procedure

A. Appealability of Order

1. The Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 2008 PA Super 222 (September 22, 2008)

Holding: An appellant that invokes the “colorable claim” standard for determining whether underlying Orders are collateral in nature, fails to satisfy this standard when it implicitly waived the claim of attorney-client privilege pursuant to Pa.R.A.P. 302(a) based upon counsel’s failure to invoke and/or assert the privilege before the trial court. Because the Orders subject to appeal were not collateral in nature, the Court did not have jurisdiction to consider the merits of the appeals.

II. Causes of Action

A. Generally

1. Schmidt v. Boardman Co., 2008 PA Super 203 (September 2, 2008)

Holding: Emphasizing that the tort of infliction of emotional distress is a distinct and separate cause of action in Pennsylvania, the Court ruled that a bystander who witnesses injury to a close relative can recover emotional distress damages when the injured person’s underlying cause of action is based on strict liability. The case also provides a detailed analysis of when a party is subject to liability under the product line exception to the general rule that a successor company does not incur the liability of the selling company.

B. Dog Bites

1. Underwood v. Wind, 2008 PA Super 158 (July 18, 2008)

Holding: In a dog bite case, jury instructions were proper that stated that: (1) the defendant was negligent per se because her dogs escaped from her property and were running free because the instructions advised jurors to consider whether the defendant’s explanation for the dogs’ escape was reasonable; and, (2) the dogs’ actions could be considered by the jury in determining the dogs’ dangerous propensities because the propensity to attack may be proven by a single incident inflicting severe injury or attack on a human being. The jury instructions constituted reversible error, however, when they failed to distinguish between the tenant “keeper of the dog” and the landlord, because the court included the phrase “or should have known” in addition to the correct standard, “knows of the presence of a dangerous animal,” when instructing the jury on the standard of care applicable to an out-of-possession landlord.

C. Medical Malpractice

1. Toney v. Chester County Hospital, 2008 PA Super 268 (November 12, 2008)

Holding: A cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative. Thus, a Complaint alleging that a mother was advised that her unborn child was normal and healthy, but was instead born with profound physical deformities, states a cause of action for negligent infliction of emotional distress. Conversely, the Court concluded that the facts did not support a claim for intentional infliction of emotional distress. The Court added that, as defined in Section 46 of the Restatement (Second) of Torts, a claim for intentional infliction of emotional distress has never been explicitly recognized as a cause of action by the Pennsylvania Supreme Court, although the Supreme Court has cited the section as setting forth the minimum elements necessary to sustain such a cause of action.

2. Sabo v. Worrall, 2008 PA Super 223 (September 18, 2008)

Holding: Counsel’s paralegal’s failure to submit a Certificate of Merit, when the statement was secured prior to the filing of the judgment of non pros, was an inadvertent mistake or oversight that constituted a reasonable explanation or legitimate excuse warranting relief from a judgment of non pros.

3. Glenn v. Mataloni, No. 264 C.D. 2008 (Pa.Cmwlth., June 4, 2008)

Holding: A trial court properly denied a motion to open a judgment of non pros when the petitioner (a pro se prisoner) failed to include in his pleading specific reasons why he needed extra time to obtain a Certificate of Merit in accordance with Pa.R.Civ.P. 1042.3.

4. Dental Care Associates, Inc. v. Keller Engineers, Inc., 2008 PA Super 143 (July 2, 2008)

Holding: An Order denying a Petition to Strike/Open Judgment of Non Pros was proper when the non pros was entered as the result of the plaintiff’s failure to timely file a Certificate of Merit within the time specified under Pa.R.Civ.P. 1042.3.

D. Negligence

1. Craig v. Amateur Softball Assoc. of America, 2008 PA Super 123 (June 4, 2008 )

Holding: The defendant softball association owed no duty of care to the plaintiff, a softball player who was not wearing a helmet and suffered a head injury while playing a slow-pitch softball game. Under these circumstance, the softball player assumed the risk of injury inherent to the sport.

E. Non-Profit Organizations

1. Colmar Volunteer Fire Co. v. Dept. of State, Bureau of Charitable Organizations, No. 2023 C.D. 2007 (Pa.Cmwlth., June 5, 2008)

Holding: A volunteer fire company was required to provide Bureau of Charitable Affairs with audited financial statements for the fiscal years in question, and was prohibited from soliciting charitable contributions until it properly registered with the Bureau. In this case, the volunteer fire company’s use of a professional fundraising entity for a direct mailing campaign disqualified it from the exemption for volunteer firefighter organizations under Section 6(a)(3)(ii) of the Solicitation of Funds for Charitable Purposes Act, 10 P.S. § 162.5(a) and required it to register with the Bureau of Charitable Organizations.

F. Political Subdivision Tort Claims Act

1.Stanton v. Lackawanna Energy, Ltd., 2008 PA Super 132 (June 23, 2008)

Holding: A bright yellow swing-arm gate erected by a utility on land left open without any fee and without any apparent business motive constituted “land” for purposes of the Recreational Use of Land and Water Act, 68 P.S. §§ 477-1 – 477-8, entitling the defendant to immunity under the Act.

G. Products Liability/Strict Liability

1. Commonwealth, Dept. of General Services v. U.S. Mineral Products Co., No. 75 MAP 2007 (Pa., September 26, 2008)

Holding: Because the incineration of building materials was not an intended use of the product, strict liability is not available for the harm caused by the unintended use.

III. Civil Procedure & Trial

A. Indemnification

1. Lane v. Commonwealth, Dept. of Transportation, 2008 PA Super 157 (July 17, 2008)

Holding: The defendant/general contractor was not entitled to indemnification from a defendant/ subcontractor that performed the work at the site of the injury because the jury found that the subcontractor was not negligent and, therefore, the general contractor was seeking indemnification for its own negligence. The decision affirmed that, if parties intend to include a provision in a contract that covers losses because of the indemnitee’s own negligence within the scope of their indemnity agreement, they must do so in clear and unequivocal language.

B. Concurrent Claims

1. State Farm Mutual Automobile Insurance Co. v. Ware’s Van Storage, 2008 PA Super 134 (June 24, 2008)

Holding: An insurer’s subrogated claim for property damage reimbursement need not be joined with the insured’s personal injury claim because the right to recover on each claim existed independently pursuant to Pa.R.Civ.P. 1020.

C. Judgments by Confession

1. RAIT Partnership L.P. v. E Pointe Properties I, Ltd., 2008 PA Super 225 (September 26, 2008)

Holding: A confession of judgment that includes an attorney’s collection commission of 15 percent was enforceable.

D. Releases

1. Haas v. Four Seasons Campground, Inc., 2008 PA Super 136 (June 26, 2008)

Holding: A defendant that operated a camp ground in New Jersey, was incorporated in New Jersey, operated an interactive website advertising the camp ground but did not allow seasonal contract purchases to be made online, mailed brochures and newsletters to Pennsylvania residents, purchased products from Pennsylvania vendors, made a significant number of direct sales to Pennsylvania residents, and published a toll-free number, had insufficient contacts with Pennsylvania to allow Pennsylvania courts to exercise jurisdiction over the defendant when the accident occurred in New Jersey on campgrounds occupied by the plaintiff under a contract signed in New Jersey.

2. Tayar v. Camelback Ski Corp., 2008 PA Super 204 (September 18, 2008)

Holding: Addressing the enforceability of releases relating to recreational activities by commercial entities, the Court concluded that the phrase “negligence or any other improper conduct,” when used in a release of liability, without other warnings, does not clearly convey the releasor’s intent to waive all claims against the facility for reckless or intentional conduct.

3. Ford Motor Co. v. Buseman, 2008 PA Super 146 (July 7, 2008)

Holding: Summary judgment is appropriate in a claim against a vehicle manufacturer and dealer when the plaintiff had previously executed a release discharging the driver of the vehicle involved in the accident and “all other persons, firms, or corporations.”

E. Standing

1. Information Systems Services, Inc. v. Platt, No. 109 MAP 2007 (Pa., August 19, 2008).

Holding: A shareholder may not maintain a cause of action in a Pennsylvania court on behalf of a foreign corporation that lacked good standing in its home state and failed to obtain a certificate of authority in Pennsylvania.

IV. Evidence

A. Character

1. Stumpf v. Nye, 2008 PA Super 122 (June 3, 2008)

Holding: Evidence of previous violence tending to show a character or a trait of character is not admissible under Pa.R.E. 404 and 405. In addition, evidence that the plaintiff pled guilty to disorderly conduct was properly excluded because guilty pleas to summary offenses and other minor matters are generally inadmissible in subsequent civil proceedings arising out of the same incident.

V. Insurance — Motor Vehicle

A. UM & UIM Coverage — Reduction of Limits & Stacking

1. Nationwide Insurance Co. v. Schneider, No. 11 MAP 2007 (Pa., November 19, 2008)

Holding 1. Section 1733 of the Motor Vehicle Financial Responsibility Law does not require primary underinsured motorist benefits to be exhausted before secondary coverage is implicated. Affirming the Superior Court, and stating that Section 1733 of the MVFRL “makes no mention of exhaustion of limits,” the Court noted that the claimant had followed the statutory order of priority by first pursing recovery from the insurer of the vehicle he occupied at the time of the accident, which is all that was required by Section 1733.

Holding 2: Examining consent to settle clauses in the context of UIM claims, the Court declined to determine whether a showing of prejudice is required of all insurers. Rather, the Court stated that it remains “the prevailing law of this Commonwealth under Lehman and its progeny unless and until a meritorious challenge to the rule is presented to this Court.”

B. UM & UIM Coverage — Regularly Used Non-Owned Vehicle Exclusion

1. Government Employees Insurance Company v. Ayers, 2008 PA Super 193 (August 18, 2008)

Holding: A household vehicle exception, which precluded the claimant from stacking the UIM coverage contained in his truck’s policy on top of the UIM coverage contained in his motorcycles’ policy, does not violate the Pennsylvania Motor Vehicle Financial Responsibility Law or public policy.

By: Daniel Siegel

About the Author:

Daniel J. Siegel, a Havertown, Pa. attorney, founded Subscribe. Dan Siegel’s office is located at 66 West Eagle Road, Suite 1, Havertown, PA 19083. He can be reached at (610) 446-3457.

posted by Law Help on Sep 19

riae or amicus curiae (plural amici curiae) is a legal Latin phrase, literally translated as “friend of the court”, that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court. The role of an amicus is often confused with that of an intervener. The role of an amicus is as stated by Salmon LJ (as Lord Salmon then was) in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 where he said:

I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf.

The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case. In prominent cases, amici curiae are generally organizations with sizable legal budgets. Non-profit legal advocacy organizations such as the American Civil Liberties Union, the Electronic Frontier Foundation or the American Center for Law and Justice frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States, federal courts often hear cases involving the constitutionality of state laws. In this case, other states may file briefs as amici curiae when their laws are likely to be affected.Amici curiae that do not file briefs often present an academic perspective on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim using their expertise. An economist, statistician, or sociologist may choose to do the same. The court has broad discretion to grant or to deny permission to act as amicus curiae.

By: Rahul Chaurasia

About the Author:

Rahul Chaurasia,Symbiosis Law School,Pune

posted by Law Help on Sep 13

A couple question nearly becoming a cop within CA?Specifically in the Los Angeles/Orange County area. How long does it hold? What do you have to do? Are there different routes you can lift? I ask for information but also for insight since I know that usually there are a lot of intricacies that empire dont think about resembling for instance when people enroll in the military and dont know what they enjoy gotten themselves into. I am interested in social work and criminology. Let’s face it, Los Angeles has a different concept than employment law training Oxford has. I dont think I would want to be a traffic cop or a composition work cop or maybe not even a jail cop. I would approaching to work in the community. Do you get a choice?A coworker spreading a rumor to my boss more or less me disappearing the company for a alien opening?

Hi all, thanks for any relief you can provide on this. In short, I wore a suit to work one day (without a tie) in my business cool office. I hadnt dropped off my dry cleaning surrounded by a while and was running short on clothes. I also happened to come contained by an hour late that day, but I have told my boss this in advance and it be fine. Anyway, a coworker made the assumption that I was coming from a job interview. She next told my boss that she thought I was looking for a new work elsewhere. Now, here’s the thing– I actually had an interview that hours of darkness after work for a part time/nights and weekends holiday job at a local department store. Just to earn some extra dosh and have a nice retail discount around the holidays. I have no intention of going away my 9-5 anytime soon. So anyway, the next day, i be offered the part time job, and contracted I would just let my boss know that I would be working on the side, as I didn’t mull over she’d have a problem with it. As I suspected, she did not own a problem, and actually thought it was a upright idea (and actually mentioned that bonuses may be small or non existent this winter for conspicuous reasons). At this point, she chuckled and said she was really worried when I came contained by to talk to her, because she had hear a rumor I was looking for a new errand. She thought that when I went to her office and asked her if she have a minute to talk that I was going to dispense my notice. She then told me who told her that and underneath what circumstances. Essentially, my coworker went to her and told my boss that she thought she should know that she thought I was looking for a untried job, so she could ‘be prepared’ for my exit. So, that’s the long and short of it. Obviously, it’s total B.S. office informer. However, I had considered not telling my boss more or less the new part time job– I indicate, it’s my business, and it’s not going to effect my performance, so I don’t feel similar to I’m obligated to tell my employer anything. But, like I said faster, I just felt it be best to be up front about it and let my boss know, because I didn’t imagine it would be a problem. But it raises the question- what if I hadn’t told my boss about my segment time job? She probably would have be analyzing my actions over the coming weeks. What if I banged surrounded by sick? He’s probably at another interview! See what I’m saying? I just focus that by spreading this rumor to my boss, my coworker jeopardized my good standing as a dedicated member of staff to my company (which I most definitely am). So, I guess my question is: Do I hold any legal recourse? Does this fall beneath the umbrella of creating a hostile work environment? Is anyone aware of any precedents that have been set surrounded by any regard to my situation (i.e. workplace gossip becoming a legalized matter)? In conclusion, let me just articulate that I’m planning on setting up a meeting with my boss and her boss to discuss the issue, but I want to know going within to it if there’s any legal evidence to support my complaints, or if it’s just nonspecific workplace gossip B.S. I’m sure they’ll understand where on earth I’m coming from, but I’d like them to agree that this is a serious matter and shouldn’t be tolerated, and I’d close to as much evidence as possible to back that up. Thanks in credit!

A craft contained by Law?

I’m doing the IB next year, so I need to consider what i’ll be doing after that. Is a work in Law a fulfilling one? My dad was a legal representative, and he really hated it because of the hours, but does anyone have any apt points apart from the money! I would want to work in business law, not individual a barrister or a solicitor.

A craft surrounded by statute, press.?

I need to take my option this year for GCSE. I only have four. I enjoy already decided to take History, Sociology and Business Studies. I hold one left. I can either pocket triple sciences, or two languages. Which would you take and why? If I pinch double award science I still get two GCSE’s… But still. Which should I take, Triple Sciences, or two language. Please please, state a reason.

A cv? please facilitate?

i have no work experience, i am studying law and would resembling to work in a law firm, i go to my solicitor and he says bring a cv. so could people give a hand me with my cv.

A entity said that I stole a computer and i be arrested facing court arrangements of burglary?

I was working for 3 months in a warehouse and at that time we have an auction this was my first one that i had ever done. I be not given any info or booklets on what to do. a person purchased ten pallets for two dollars picked up six pallets and gave me the rest to do as i pleased.a co-worker asked me for a monitor so i give him one and i was accused and arrested for raid.i have a written document on the person that purchased the pallets axiom he gave me everything,but i still have to budge to court for theft.

A examine on UK employment regulation?

Serious answers please. Ive just reached the cease of my 6 months probation in a permanent full time role. My supervisor, who have been here half the time say he wants to extend my probation by 3 months as he hasnt had the luck to set goals assess me correctly. However our manager as be here all this time. Ive arranged to talk to HR in the order of this, because, as the economic situ is gloomy, Im a bit concerned human being still on a week’s leave. Can anyone advise on my rights? Please guys, just if you know for a fact. Much appreciated!

A few question going on for becoming an attorney? ?

I am interested in litigation consulting and appellate law. A few question: 1.) Are these two usually practiced at the same time or are they mostly exclusive of each other contained by terms of a career? 2.) How meaningful is it to get a good clerkship after graduate law school? 3.) Are nearby any law schools that are chiefly strong in Appellate Law or Litigation Consulting?

A friend of mine and I worked together and we quit, it’s become fairly a mess, are we surrounded by legitimate trouble?

We worked at a preschool. We became rat infested, had creditors calling and accounts contained by collections calling. They came out to shut our electric off, our dumpster hadn’t be picked up in 3 weeks, and the whole place smelled same bleak it was making my friend and I nauseous and giving us headache. They refused to call a rodent Company, and my husband removed a departed one from the attic a few weeks ago. We had no supplies or snacks for the kids because the rats were chewing through everything. Last darkness after Business hours, she and I took our resignation letters that properly and politely touched on all of the above reason, left those, our keys, and our time cards for the week on the desk, and did not going this morning. The word found out *I still don’t know how!* and the owner told them if they ran the story, that she would sue them, and the two little girls that did this, meaning my friend and I. SO far, I’ve be informed that it is not job abandonment because it be not during Business hours. I’ve also been told it’s not slander if it’s true. I have photos of the conditions of the building. I’m not trying to do anything to them, I of late couldn’t breath in there. Should we verbs or contact a lawyer?

A group of organization inclu me contained by a firm didn’t grasp net from finishing feb, wat ll v do, is in attendance any decriminalized move?

lam working in a software firm as technical associate, our squad includes five members, we r in hardware troubleshooting slot. last month our company divided into two. So we r in the bright section of the parent company. From last month we r not getting net (January, February). Company is saying there is some transaction problem when it divided. But we come to know that their excuses r meaningless. What we ll do, is there any legal move needed? or what type of permitted action we have to pilfer? This is a problem affecting lot of members in the screened-off area. Please give me solution. (legal as well as any other)

A Hard Day At The Mall?

So if I worked for this company wireless phone company and I quit my job two days ago cause my mediator said I was a liar. So we have a agruement and I walked off the opening he called me cursing at me more than once and texting me also. So I’m upset now create I walked into the mall today and I be banned. So I was wondering what you can do to acquire banned from a mall. Like the reason they ban you for. Cause quitting your job doesn’t give the impression of being reason enough.

A interrogate for uk allowed eagles.?

If someone has worked for a company for between 33 and 55 hours a week for a company but never signed a contract, do they still have endorsed rights in regard to employment law

A interview nearly file chapter 7?

Since the laws regarding collapse were changed do we have to hold an attorney file for us or can we have a paralegal do it? Is it still as impressive to go through a paralegal instead of a bankruptcy attorney or is it no longer risk-free to use only a paralegal?

A job contained by LAW?

I am still in school, and when i grow up i would close to to do a job in Law. i own been doing research and have found out that first of adjectives of course i have to do adjectives my A-levels (by the way which should i choose to help qualify me for a chore in that subject) and after that you are meant to dance to university and get a Law degree and after that you turn to law school, and after that you do training. Is this true. Thanks for your sustain.

A job legalized money?

I’ve been working for my uncle as a plumber and i use to get salaried an average of $1800 after taxes. This morning one of the employees told him that i was doing side call for my own gain. (I did one call but it was to backing out a friend. I wouldn’t screw anyone over like that.) So when my uncle found out he changed my flat rate paycheck. Now I only form 18% of each call. That’s not plenty to pay bills with. Can he reasonably do this to me if so can I do anything about it? (Just FYI hes a jerk and doesn’t listen to reasoning so there’s no destiny of me being able to explain myself to him.)

A Lap Pad be moved out inside my mothers belly during a colon resection surgery..pls read on…?

this is an absolute negligence case. Do we really need a lawyer to aquire compensation for this economically documented medical malpractice situation? Should we approach the hospital without a lawyer to ask for compensation? Then hire one if they stay away from to compensate?

A lawful question~Help please?

Okay, someone gave me and my friend their credit card information…He wants us to use 150$ of it he’s buying an admin spot on a winter sport we made, but i don’t know if this is legal if we use it or not.. He told us to but you know… i don’t really know he lives in Kuwait

A Legal Question.. Please abet!?

The Question: George promised his son that he would pay him $1000 if he gave up using tobacco, swearing, and playing cards until he be 21. The son did so and asked his father for the money. His father agreed to pay, but died before he did so. The father’s estate refuse to pay, arguing that there be no consideration for the father’s promise. Should the court uphold the agreement in this case? Why or Why not? Thanks!

A legal representative surrounded by Little Rock, Ar. that would be capable of do a lawsuit against Wal-mart contained by Hot Springs,Ar.?

I was fired from Wal-mart on 2/05/08 and the manager that fired me put on the dissertation work: insubordenation and criminal intent for the reason I was fired. I’ve lately found out that the criminal intent part is: they’re saying that I attacked a customer service mediator named Neeta Harris,when in actuallity she be the one who attacked me. What can I do about this to get my describe cleared ?

A little give a hand?

My boyfriend is 23 and has applied for our local police department. He was one of 120 applicants, and have passed the polygraph, physical assesment, psychological test, and written assessment. I am assuming he is past the milieu check as well, since the police department has call me and his references. The police officer I spoke with have said that he will speak with my boyfriend on sat. or sun. for approximately 2-3 hrs. Is this his interview, or is this section of the background check? My final question is, will this be done contained by our home or at the police department. By the way, they are down to 27 guuys(as far as we know) and are hiring 6 (fingers crossed)! 2 days ago

A notification from the advocate to the client?

Hello! I am a first year at a law school. I enjoy for homework, to write a letter to a client of mine (assuming that I am his lawyer). I have an belief as how to write it, but I do not have an example to look at to compare my idea. I enjoy to tell my client that he has be accused of something that is not a crime, base on our legislation. I know that the relation client-lawyer changes from state to state, from one system to another, but I just want a common idea. Has anyone written/ received this kind of epistle? Thanks in advance.!

A official ask: Do I call for to gain releases from general public I purloin pictures of on the street and post on my blog?

If I take pictures of people on the street and post them on my blog, do I have need of to obtain some kind of officially recognized releases from them? They are pictures of strangers, just walking around, attending a concert, or doing something unusual in public. My blog doesn’t trademark any money, but can I get into trouble for not having written say-so from them? What if I actually interview them about what they are wearing or what they are doing? Does that construct a difference?

A official grill. Does anyone know how long one can save a guest’s belongings formerly it is considered pass over?

A homeless family stayed at my house for a few days and skipped town leaving adjectives of their possessions. How long would I have to store their belonging before it be considered abandoned? And what would be the legal process to take care of this?

A paralegal I go to misused my personal information. What do I do?

He posted my information on the web. The police won’t do anything, nor will the State Bar, or the FBI, or the Atty General, or the business licensing division. Apparently, paralegals don’t enjoy anyone governing them.

A possible craft surrounded by forensics?

I just recently thought in the order of pursuing a career in forensics. However, I only graduated with a bachelor’s surrounded by business administration & majored in information systems. Forensics & investigative work own interested me for years (I like researching, analyzing, & I’m a BIG TruTV fan); I just never considered making it a craft because I haven’t really been “excellent” in biology/chemistry. If anyone know, is there any way I could somehow use my point in a forensics career? What areas of forensics would be devout to pursue?

A query of UK employment decree?

this is a slightly complex question that i am having difficulty surrounded by answering. Max has been employed within a UK registered company, in the north of england for the last 6 months. It have been confirmed that he is employed on an indefinite basis (permenant staff). Max’s company works as a service provider to clients by interacting near their customers- simular to that of an outsourcing operation. His employer now informs Max and his co workers that they cannot provide work for a 2 week period due to a close down “requested by their client” after which it is business as usual. What are the option for max about protecting his wages as their company is “unable to provide work”? What are the option of the business to charge their client? and finally, what are the options of the business about not paying their staff for the time of year which they cannot supply work? much thanks for the input.

A Question mostly for you Old Timers: What profession would you own chosen …?

… 30 years ago if you knew what you know Now? Maybe you thought you were suited for a Sales trade but found out you weren’t. Maybe you should have stayed in the Military? Or you should hold got a decent training and been the next CEO of IBM. Or you should hold studied computers more and beat Bill Gates to the gate.

A Question Regarding New Hire?

Hi there! My question is: if an employer wishes to hire me, do I have to show him my original copy of SSN card, driver license, etc or lately showing the photocopy of it is fine? What if you don’t have a driver license or a passport? Will Student ID work? Thank You!

A quiz give or take a few my take-home pay?

I am a salaried employee who works a compressed shift of three twelve hour days. My employer only pays me for 36 hours but I reckon since I am on salary I should get compensated for 40 since I am not missing any time due to sickness or such.

A relative that works (a) Solo surrounded by Georgia The boss wont consent to them cooperate on their errand for 12 hrs. Is this legally recognized?

This is crazy. These are adults, not kids,who work 12 hours a day and if they talk earlier their break the emplyees will get written up or dismissed from their job. I necessitate to know if the BBB can or should be contacted about this situation?

More Law Legal Job questions please visit : JobQnA.com

By: jobfaq

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JobQnA.com

posted by Law Help on Sep 11

Ohio Asset Protection in Ohio:

An Ohio Asset Protection Overview can greatly vary.

Ohio debtors may only choose from the state bankruptcy exemptions.

Property held in tenancy by the entirety is exempt from the debts of one spouse.

Ohio is a typical Midwestern state insofar as real property is given only nominal protection from creditors, and life insurance can be protected to some degree if structured properly.

However you have to be careful in Ohio.

Ohio has a fraudulent protection act in place.

Ohio Fraudulent Transfers Act.

Terry Wooten v. Robert F. Kreischer et al.,

2005 Ohio 4078 (Ohio App. 08/03/2005)

Summarized with the Ohio Revised Code 1336.

“The trial court, in the case sub judice, specifically cited R.C. 1336.01(G)(1)(a) in finding that the transfer to Ponsart was to an insider. However, there is no evidence in the record that Ponsart was appellant’s relative. Furthermore, at the bench trial, Ponsart testified that it was never his intention to form a partnership n5 for profit with appellant with respect to the land and, during his trial deposition, appellant testified that the two never bought the land intending to make a profit. As noted by appellant, there was no evidence to the contrary. While the trial court, in its decision, stated that at the criminal restitution hearing on September 3, 2002 appellant identified Ponsart as his “partner”, upon our review of the transcript of such hearing, They found no such reference.”

There is also an Ohio Trust Act in place.

This Trust Act is all handled through at the state level. 

There is a homestead exemption in place

The Homestead exemption amount in Ohio is $5000.

[Ohio Revised Code 2329.66(a)(1)(b)]

Ohio Life insurance proceeds are exempt if there is a clause that prohibits the proceeds from being used to pay beneficiary’s creditor’s. [Ohio Revised Code 3911.14]

Life insurance proceeds that are designated to a spouse are exempt. [Ohio Revised Code 3911.12]

Ohio IRAs & Pension Plans

IRAs are exempt. [Ohio Revised Code 2329.66(a)(10)(c)]

As you can see Asset Protection in Ohio has to be handled carefully.

A wrong move could put you in real legal trouble.

It would be most advisable to seek out a good Attorney.

You can never be to careful when your working with the Ohio Revised code.

Protecting yourself with Asset Protection is a good idea.

But it’s always good to know the law’s in your state before hand.

By: Shawn Burgy

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To learn more please visit us at Asset Protection Information