March 13th, 2009 at 12:13pm
Under Legal
It could be said that Delaware incorporation is a kind ubiquitous process of forming incorporation, for both; people living in US or abroad. For instance, Delaware incorporation is advantageous to companies who intend to offer their shares to the public. Delaware incorporation is definitely much easier and beneficial for businesses when compared to the other states, because of all these contributing factors. Another benefit of Delaware incorporation is Delaware’s extensive and often easily interpretable law. Delaware incorporation is also advantageous because shareholders and directors can make decisions by unanimous written consent in place of formal meetings.
Delaware Incorporation is also a great resource for companies seeking venture funds or an acquirer. Delaware incorporation is favored by sophisticated investors and may broaden corporate opportunities. Another reason for favoring Delaware incorporation is the efficiency of the Delaware Secretary of State and the quality of Delaware judges in handling corporate lawsuits. Delaware Incorporation can really be advantageous as compared to many other states.
Businesses chose Delaware not for one single reason, but because they provide a complete package of incorporations services. The Delaware General Corporation Law is the most advanced and flexible business formation statute in the nation. The Delaware Court of Chancery is a unique 210 year old business court that has written most of the modern U.S. corporation case law. Delaware’s State Government is business-friendly and accessible, and the Division of Corporation is a model state-of-the-art. These factors have all contributed to making Delaware a premier legal home to companies around the world.
You dont have to be a Delaware resident, but Delaware law requires every corporation to have and maintain a Registered Agent in the State who may be either an individual resident, a domestic corporation, or a foreign corporation authorized to transact business in Delaware whose business office is identical with the corporation’s registered office. You can pay a fee of approximately $99.00 for resident agent services offered by most incorporators.
You dont need an attorney to perform a Delaware incorporation, but you should contact an attorney concerning legal matters.
Delaware corporate laws allow more flexibility in conducting businesses. Some additional benefits of a Delaware incorporation are:
Delaware has a separate and highly-respected business court known as the Delaware Court of Chancery. The court protects corporations in Delaware so that they can focus more on their business operations and reasonable litigations/disputes.
The costs of incorporation filing and franchise tax fees in Delaware are low.
Delaware has no minimum requirement to open a business bank account. Most states require at least $1000.00 in an account to operate a business.
Delaware incorporation allows privacy and anonymity of company’s Director, Shareholder, or Officer.
In a Delaware incorporation the business owner can be all of the officers (director, shareholder, or officer) of a Delaware corporation him/herself.
Business entities or business corporations that incorporate in Delaware but do not operate in the State of Delaware do not have to pay state income tax.
Business entities that incorporate as Delaware corporations and LLCs are entitled to the advantages of asset protection. This means company’s assets or company debts are separated from your personal assets.
Delaware has no sales or personal property tax.
More than 695,000 businesses have their legal home in Delaware, including more than half of all U.S. publicly traded companies, and 60% of the Fortune 500. This may be why Delaware is called the Incorporating Capital of the World.
In summary, many businesses choose Delaware incorporation because:
The Delaware General Corporation Law is the most advanced and flexible business formation statute in the nation. The Delaware business Court of Chancery has written most of the modern U.S. corporation case law.
Delaware’s State Government is business friendly and accessible.
Delaware’s legal system has been ranked No. 1 in the nation for the fifth consecutive year. That alone warrants considering a Delaware incorporation.
Shareholder, member or beneficial ownership information is not public according to current Delaware business entity statutes. Delaware corporations are required to file a complete annual franchise tax report with names and addresses of all directors and the name and address of the officer signing the report. Effective January 1, 2007 all Delaware business entities will be required to provide to the registered agent the name of a natural person, a business address and a business telephone who will be the communications contact for the entity.
Delaware companies that do not operate their business within the state do not file Delaware state corporate income tax returns. There are no taxes on Delaware capital shares or stock transfers or state inheritance tax on stock held by non-residents of Delaware.
Gust A. Lenglet is an accountant and financial advisor for many years. He is President and CEO of HBS Financial Group, Ltd. and offers online tax filing as well as income tax articles and information.
Author: Gust Lenglet
Keywords: delaware incorporation, incorporate, incorporation, delaware
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By admin
March 13th, 2009 at 12:13pm
Under Legal
With continuing technological advancements, no longer must attorneys rely on traditional forms of evidence in order to prove, defend or prosecute a case. The use of forensic computer animation used as evidence has exploded, bringing with it challenges to traditional principles of evidence admissibility. As offered, these computer created animations purport to demonstrate how a certain event did or did not occur. The unique characteristic of these animations is that they act as a means to synthesize all the evidence presented at trial into one visual representation. Their use can be either greatly effective or unfairly prejudicial. Animations allegedly demonstrating how an act did or did not occur can have tremendous persuasive value in the minds of the jury. Instead of forcing the jury to integrate every theory and piece of evidence into one seamless mental thought, a forensic animation seemingly combines all pertinent facts into a visualized theory of the truth. While these animations are merely representations of theories, the jury will often accept them as the truth of the matter due to their highly persuasive and prejudicial value. In one key study, 82% of trials where animation has been introduced as evidence has led to victory for the moving party.
The key to arguing for or against the admissibility of computer forensic animation lies in the attorneys ability to understand the standards of admissibility applied to such evidence. Computer animation can generally be broken down into two differing classes of evidence, each with its own standard of admissibility:
Computer generated evidence as demonstrative evidence:
When arguing in favor of the admissibility of computer generated evidence, the best argument to make is that the evidence is merely demonstrative. Demonstrative evidence inherently carries no independent probative value and is used for five general purposes: (1) to educate your audience; (2) to explain something; (3) to persuade your audience of something; (4) to dissuade your audience of something; and (5) to reinforce something your audience already believes.
Arguing that your computer generated evidence is merely demonstrative evidence directs the judge to use the low relevance standard in determining its admissibility. After categorizing the evidence as demonstrative evidence, the judge will then ask the following questions in order to determine its admissibility:
Is it relevant? Does it have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence? . F.R.E. 401 (2006).
Does it aid the trier of fact in understanding pertinent information?
Does it accurately reflect the elements of the situation it is portraying?
If the evidence is deemed as demonstrative and the answers to the preceding questions are all in the affirmative, the evidence will be admissible, provided that its probative value is not substantially outweighed by the danger of unfair prejudice. F.R.E. 403 (2006). This low threshold test will allow for the admissibility of most demonstrative evidence. The key to getting your computer animation evidence in is to argue that it falls within one of the five general categories of demonstrative evidence. The successful attorney must know the tests and the questions to ask, and have the ability to persuade the judge that the evidence being offered is subject only to the general relevancy standard in order to gain admission into evidence.
Computer generated evidence as simulation (substantive) evidence:
When arguing against the introduction of forensic animation, the better choice is to argue that the animation constitutes simulation evidence, requiring a higher standard of admissibility. Computer simulations are seen as blurring the line between demonstrative and substantive evidence. Simulation evidence is highly effective because it allows for complicated facts, data and evidence to be extrapolated into one visual demonstration of every piece of relevant evidence. Because of the role that humans play in the creation of computer animations, judges will often view such animations as substantive evidence, requiring the expert creating the animation to take the stand in order to allow for cross examination. When arguing that a computer animation is simulation evidence, the arguing attorney must focus on its technical aspects and the role that humans played in the selection and interpretation of data used to create the animation.
Once deemed simulation evidence, the judge will then consider three primary inquiries:
Is the underlying scientific principle valid? Considering whether the principle has been tested, its error rates, and the degree of the principles acceptance in that particular scientific community . F.R.E. 401
Is the technique applying the scientific principle valid?
Was the technique applied properly on this particular occasion?
Each of the above questions requires extensive and substantial inquiry into the quality and characteristics of the evidence attempting to be introduced. In order for simulation evidence to be admissible, it must be more than relevant. In addition to meeting the three tests stated above, only evidence which has been proven or stipulated to as true may be included in the simulation. This higher admissibility standard is due to the highly prejudicial value of such simulation evidence. Notwithstanding its admissibility as simulation evidence, the evidence can still be barred if it fails the Rule 403 unfair prejudice analysis. The Rule 403 unfair prejudice argument is the last bow in the quiver for the attorney arguing against the admissibility of computer animation evidence and should only be focused on as a last resort.
As you can see, categorizing computer forensic animation as demonstrative or simulation evidence will, for the most part, determine its overall admissibility. These differing standards of admissibility are to be used as a means of argument, depending on the attorneys role in the case. When preparing for such an argument it is important to keep in mind the opposing position and to be prepared to argue against it. As with all trial work, your level or preparation will ultimately determine the level of your success or the depths of your failure.
This article was written by Nicholas J. Deleault, Pierce Law Center 07. Nicholas writes select legal articles for the Law Firm of Goldstien and Clegg, a Massachusetts cyberlaw firm.
Author: Nicholas Deleault
Keywords: civil litigation, animation, computer forensics, trial attorney
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By admin
March 13th, 2009 at 12:13pm
Under Legal
Filing your Social Security disability or Supplemental Security Income claim is a simple and brief process. Social Security disability programs are available to individuals who have long term, serious medical problems that prevent them from working. Social Security does not offer any short term disability benefits, nor is there such thing as a partial disability benefit. To qualify your disability must be significant and be expected to last 12 consecutive months.
Start Your Disability Claim by Calling Social Security
There is not cost or obligation involved in filing a claim for benefits. You can begin the process by calling 800-772-1213, SSA’s toll free number. After navigating several layers of automated attendant prompts, you will find yourself speaking with a live operator who will take your claim. When you speak to the operator, make sure to tell her that you wish to claim both Title 2 disability and Title 16 SSI benefits. You want to get a protective filing date for both claims even if it later turns out that you do not qualify for one of them.
Meet With a Representative at Your Local Social Security Office
You can also file for SSDI or SSI by visiting your local Social Security office.
File for SSDI or SSI Online
A third alternative is to start your disability claim on-line at the official Social Security web site. Social Securitys on-line filing system does not always work well. The on-line system prompts you to fill out page after page of information. If you do not happen to have all of this information handy, you have the option of saving your place and logging back in later.
Because Social Securitys on-line system permits you to review only one page of the on-line form at a time, there is no way to know what is coming and no way to know what type of medical records or other necessary information. In my view, this absence of a complete form to review prior to actually filing is a drawback to the on-line application system.
Social Security Disability Claim Forms Can Be Confusing
Because Social Security does such a poor job presenting its forms and explaining how to fill them out, I wrote a book for claimants that explains how to fill out the forms correctly. My book is called the Disability Answer Guide and is available on the Internet.
My overall observation about Social Securitys forms, especially the forms you fill out to start your claim, is that SSA will ask you the same question three or four times. This may be because SSA personnel keep adding questions to the forms, but no one seems willing to delete any redundant questions.
What You Need to Start the Disability Claim Process
You will need to have handy as much information as possible about the doctors, hospitals, diagnostic clinics and other health care providers who have seen you. You will need the name, current address, phone and fax for these medical providers.
You will also need a list of every job you have held over the past 15 to 20 years, the name and address of your employer, the dates of employment and a brief description of your work tasks. Do not worry if you do not have all of this employment information at hand - it is ok to estimate. Your official Social Security file has the name and address of all of your employers and you can update the job list later. The Social Security representative may not accept your claim if you are still working. If you are working in a special circumstances work environment, make sure to advise the rep so that she will take your claim.
Start Your Claim As Soon As Possible
Finally, I advise my clients to file their claim as soon as possible after they stop working. SSDI claims are payable only if you have enough credit hours shown in the SSA system. Once you stop working, you will stop earning credit hours. Normally, you remain insured for SSDI benefits for three or four years after you stop working, but I have seen some cases where SSDI insured status runs out more quickly. Everything else being equal, file your disability application as soon as you realize that you will be out of work for an extended period of time.
Jonathan Ginsberg is a practicing Social Security disability lawyer in Atlanta, Georgia. In addition to his law practice, Jonathan is the editor and publisher of several national Social Security disability related web sites, including the Social Security disability information, and the Social Security disability blog at www.ssdAnswers.com
Author: Jonathan Ginsberg
Keywords: social security disability, ssdi, ssi, disabled person
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By admin
March 13th, 2009 at 12:13pm
Under Legal
It is your life we are talking about. Make sure that you take every necessary step to find the right lawyer for your needs. It is very hard to do this, though, with all the ads flying at you, the people soliciting you, and all the negative things that you hear about lawyers these days. But, the fact of the matter is that you can find the right lawyer and not all of them are that bad. Believe it or not, some actually get into this career not to make millions or to beat the drug companies. Some actually really want to help you. Here are some of the things to look for in your lawyer. Take these steps to find the perfect lawyer for the job.
Find a lawyer that specializes in your field. This is important because you will want someone not only that knows how to handle a case like yours, but also one that will be up to date on the latest rulings and the latest procedures for your case. This simple thing can really make a large difference. Many lawyers have one or two specialties and then do other things as well. If you find one that specializes in your needs, say traffic violations or divorce, you are likely to be able to count on them to know more about how to handle your case than someone who specializes in business proposals.
To find a lawyer that you can trust, look towards your local Bar Association for recommendations on someone. Not everyone has a lawyer on retainer so it helps to know that someone out there is recommending the one that you are choosing. If you feel that you can, ask friends and family about their recommendations as well.
Once you find a few names to consider, make sure that you know about them. You can check on their relevant experience and their record for cases like yours. While this will not tell you just whether your lawyer will win your case or not, it is safe to say that it will give you some idea of his or her skills nonetheless.
Consider how well the lawyer will be dedicated to your case. You can judge this by what he or she tells you and by how well they work with you. Will they meet the deadlines? Do they return your calls? Can you trust them to be on time for appointments? Ask them how much time they will devote to your case and how many other cases they are handling at the time. You need to know their dedication to your personal needs.
Perform an interview with the lawyer. Ask them the questions that we talked about. But, if at all possible make it an in person interview. This will help you to feel out the lawyer. Ask them about how they will handle your case and what they can do for you to make sure that you win your battle. An experienced lawyer should be able to tell you step by step what will happen, when it will happen and why it happens.
Let’s face it. We can not all have the best lawyers out there. It is important to compare retainer fees. While you may be under the impression that you need the best lawyer out there, you simply may not be able to afford him or her. Instead of worrying about this though, consider instead what the lawyer’s record is and how well he can do his job for the amount of money he will charge you.
Lastly, it is important to choose a lawyer that you trust. While this can be something that many people don’t understand, if you do not feel comfortable with a lawyer, you shouldn’t work with them. It makes sense that you should be able to talk to them easily and tell them the who’s, the what’s, and the why’s of your case. You should be able to provide him with what he needs to know Trusting your lawyer will also help you to relax and to relieve some of your own stress.
The perfect lawyer? Is there really one of those out there? There is that one lawyer that you will be proud to call your own. When you take the time to make sure that the lawyer that you have chosen is a good one, you can be sure that your case, your life is safe and secure in their capable hands.
Lance R. Wilson is an editor at Lawyer-Map.com where you can find more articles about finding a good attorney.
Author: Lance Wilson
Keywords: find a good lawyer,find an attorney
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By admin
March 13th, 2009 at 12:13pm
Under Legal
Many small businesses start as a part-time effort that grow over time, and eventually become a profit generating venture. One of the difficult questions for a small business owner is, When do I need to form an entity? A follow-up question is which type of entity to form such as a corporation (sub-chapter S or C Corporation), limited partnership (LP), limited liability partnership (LLP), or limited liability company (LLC).
The business person who is a sole proprietor should be aware that his/her liability is virtually unlimited. When you do not have the protection of an entity under which your business operates, it is your personal assets that are at risk. Therefore, if a party were to sue you, your personal assets would be exposed. Many states, such as Texas, offer homestead protection so that creditors cannot foreclose on an individuals home, but such laws vary from state to state.
The formation of a legitimate business entity offers varying forms of protection for a business persons personal assets. Entity formation is the process wherein one establishes an entity authorized to conduct business within a certain jurisdiction. In Texas, one would file entity formation papers through the Secretary of States office. Each state has a government office that handles entity formation. Generally, an entity can be created for as little as $50-$250 per application. Though this step often occurs later as a business grows, it is a small financial investment to make early on. Creating an entity also gives your business credibility in that you have taken the steps to define it as a functioning entity. The most common entity formed by a new start-up business is the LLC (Limited Liability Company).
Limited liability companies are designed like partnerships, and therefore suitable to small businesses, but have asset protection similar to a corporation. When your entity is set up you will also receive a tax ID from the state comptroller. Therefore, you will likely have to file a franchise tax return in your state(s) of operation. You should also request a federal tax identification number (FEIN). You may want to consult a CPA to determine which type of entity offers the most tax advantages in your state.
The other component in protecting personal assets is to purchase business liability insurance. Most insurance carriers have business divisions which write general liability insurance polices. Contact your current carrier and see if you can obtain insurance this way. Additionally, you may be covered under your homeowners policy depending on the business you are in, anticipated revenues, and the potential exposure. Speak with your insurance carrier to find out what you need to do to protect yourself.
You can apply for the entity yourself or with the aid of an attorney. As mentioned earlier, you should speak with a tax attorney or CPA about which entity offers you the best tax advantage in your state.
Disclaimer: This article does not constitute advice nor does this create an attorney-client relationship.
J. Shannon Cavers is a Houston based lawyer working in entity formation, family law and probate law.
Author: Shannon Cavers
Keywords: entity formation, protect assets, small business
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By admin
March 13th, 2009 at 12:13pm
Under Legal
Child Support Collections
Collecting unpaid child support can be a challenge for some custodial parents seeking assistance from the non-custodial parent. The state child support collections agency in your area have several methods they use in order to collect current or past due child support.
One method used in collecting child support is income withholding, which is the most popular and convenient way of retrieving child support payments.
The state child support enforcement agency can also utilize a number of methods for enforcing child support payments. These methods are judicial action, intercepting any other sources of income, garnishing bank accounts, consumer credit bureau reporting, revoke of any licenses, and passport denial or suspension.
The First Steps
The first thing the custodial parent must do in order to collect child support payments is to locate the non-custodial parent. Then, the custodial parent must establish paternity. Next, the court will send out a order for the non-custodial parent to pay child support. Last, child support enforcement will proceed if the non-custodial parent refuses to make timely payments.
When locating the non-custodial parent you must provide the state child support enforcement office with as much information as possible. Information such as their social security number, their address, friends and family names, where they are employed and what state they reside. When the non-custodial parent is located, paternity must also be established before the court can issue an order of child support payments.
A father can acknowledge the child by signing an acknowledgement of paternity. If the father denies any ties to the child, a DNA test will be performed to proved or dismiss him as the biological father. When DNA testing are done and the alleged father is proven to be the biological father, the court will issue an order of child support.
Once child support is ordered and the non-custodial parent refuses to pay, the child support collections agency will enforce the appropriate methods to retrieving payments.
There are several child support collection agencies that will assist custodial parents in collecting any past due child support. If you are a single parent in need of assistance, there are forms you can fill out for free information on collecting your past due child support payments.
Click for more info on Collecting Child Support Payments
Or
Visit the Child Support Laws Home Page
Author: Holcy Thompson III
Keywords: child support collections, child support payments, child support, establishing paternity
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By admin
March 13th, 2009 at 12:13pm
Under Legal
If you deal with receiverships, this case will be of interest to you. A lender, a borrower and a court-appointed receiver have been battling one another in an Indiana federal court in connection with a failed construction project. Problems arose when a partially-constructed apartment complex deteriorated so much during a foreclosure suit that a judge condemned the property and ordered it to be demolished, resulting in damages alleged by the borrower of $4,167,881 (representing the purported value of the property pre-suit minus the value of the foundations of the buildings after demolition). In Judge Philip P. Simons words, assessing who is at fault for this mess is at the center of the action currently before the Court. In rulings filed September 18, 2006 and October 16, 2006, the Northern Districts Judge Simon brought some order to the chaos in case no. 2:02cv368, Four Winds v. American Express Tax and Consulting Services, et al. The cite to the September Opinion, which relates to the borrowers claims against the receiver, is 2006 U.S. Dist. LEXIS 71349. The October Opinion, which addresses the receivers cause of action against the lender, can be found at 2006 U.S. Dist. LEXIS 75581.
Lender spanked. The litigation began when the lender decided to foreclose. The borrower filed a counterclaim asserting wrongful foreclosure because there had been no default. The borrower convinced the court that no default occurred, so the court dismissed the foreclosure aspect of the case. The lender then settled with the borrower for a hefty amount on the counterclaims.
Receiver faces trial. The borrower also is pursuing the receiver for negligently failing to protect and preserve the project. An agreed order governed the receivers conduct, and the issue is whether the receiver was grossly negligent. The receiver sought a dismissal of the claim by submitting evidence that it did not act with gross negligence. In fact, the receiver undertook at least some measures to protect the property. But Judge Simon ruled that the case must go to the jury to decide factual issues, including: (1) how the project would have faired had the receiver not undertaken the protective measures that it did, (2) how much damage would more extensive protective measures have prevented, (3) why the receiver did not apply to the court for permission to complete the project or for funding to implement more extensive measures, (4) how many times should the receiver have visited the project and (5) whether the receiver was grossly negligent in fulfilling its duties as the receiver. The case is set for a jury trial on February 20, 2007.
Receiver v. lender dismissed. The receiver, in turn, had its own negligence claim against the lender, which claim really was about seeking reimbursement for any damages the receiver might have to pay to the borrower. The receiver pointed the finger at the lender, arguing that the lender controlled the receivers actions through the funding (or lack thereof) of the receivership. Judge Simon held there was no legal basis for the receivers position, however, and dismissed the claim. If any negligence-based duties flowed between the parties, they flowed from the receiver to the lender, not vice versa. Thus the receiver, if found to be grossly negligent, cannot recoup any losses from the lender (although the receiver may be entitled to a credit/set-off for the money the lender paid to the borrower.)
Interestingly, the agreed order appointing the receiver required the receiver to preserve and protect the property with receivership funds, even though there were no receivership funds to do so because the property generated no income. That catch-22 may have been the propertys downfall. The receiver was responsible for directing the preservation of the property, but on whose dime? Evidently there was an informal arrangement whereby the lender funded the receivership. That went okay at the beginning, but the problems and costs later seemed to snowball out of control. I gather that, if and to the extent the receiver was negligent, it was due in part to inadequate funding by the lender. The confidential substantial settlement the lender paid to the borrower supports my speculation.
Lessons. Even though the lender won its legal battle with the receiver, the lender had already lost when the project failed and the borrower forced the lender to settle. There are some lessons here for lenders (and receivers):
-Ensure there is a default before a foreclosure case is initiated
-Spell out in the receivership order exactly how the receivership will be funded
-Clarify in the order the duties of the receiver, and the borrower or lender as warranted
-If the lender agrees to fund the preservation of the property, it should take reasonable steps to do so and should not unreasonably permit a project to deteriorate substantially in value
But perhaps the greatest lesson is - in cases of construction loans where the collateral is being built - lenders should foreclose and appoint a receiver only as a last resort.
John D. Waller is a partner at the Indianapolis law firm of Wooden & McLaughlin LLP (http://www.woodmclaw.com). He publishes the blog Indiana Commercial Foreclosure Law at http://commercialforeclosureblog.typepad.com Johns phone number is 317-639-6151, and his e-mail address is jwaller@woodmclaw.com
Author: John Waller
Keywords: foreclosure, lender, receiver
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By admin
March 13th, 2009 at 12:13pm
Under Legal
The cast of characters. Everyone knows what a bank is. Most of us understand what a lender is an institution from whom money is borrowed. Adding the word commercial to describe a lender simply means that the financial entity deals with businesses as opposed to individuals. Blacks Law Dictionary defines commercial loans as: loans made to businesses as distinguished from personal-consumer credit loans. Although a lender could make both commercial and consumer loans, this blog is dedicated primarily to commercial matters.
The field of law. To me, commercial foreclosure law refers to the rules and procedures applicable when a business defaults on a loan secured by some kind of collateral. So, if you work for an institution that loaned money to a business, and if the borrower defaulted under the terms of the loan agreement, then commercial foreclosure law provides the judicial framework for the protection of your rights. Typically, those rights involve the ability to collect money owed by the borrower through the sale of the loan collateral.
Collateral. Blacks states that collateral is property pledged as security for the satisfaction of a debt. If a business defaults on a loan, the lender can initiate a foreclosure action to compel the sale of the loan collateral and therefore collect the amounts owed by the borrower through proceeds from the sale. There are all kinds of business-related collateral. Perhaps the most recognizable is real estate the land a business owns. Some of the most interesting cases, however, deal with personal property collateral, which can be any property imaginable that is owned by a business a fleet of cars, office furniture or intangibles such as accounts receivable.
Lien. A lien is a description of an encumbrance on property: a claim . . . on property for payment of some debt. Blacks. In the context of my blog, a lien arises by written contract between a lender and a borrower either a real estate mortgage agreement or a personal property security agreement. The lien granted by a borrower to a lender gives a lender the right to foreclose upon the subject property (collateral) for payment of the debt in the event of a default.
Commercial foreclosure. Turning again to Blacks, a foreclosure is defined, in part, as the enforcement of a lien . . . or mortgage . . .. Paraphrasing Blacks, foreclosure is the legal process by which real or personal property subject to a lien is sold in satisfaction of a debt. To foreclose means to terminate a borrowers rights in the subject property. A foreclosure that is commercial merely refers to the termination of a business borrowers rights in its property.
A form of collection. Commercial foreclosure law is a special kind of collection law. Its a body of rules governing how banks and financial institutions recover money by asserting rights in, and selling, collateral that a business granted to secure the loan. Its the set of legal principles applicable to a lender needing to collect money owed by a business, which failed to make its loan payments or otherwise defaulted under the terms of the loan documents. If any of these matters are relevant to what you do for a living, I welcome your visits to my blog and hope that you will e-mail me with your questions or comments.
John D. Waller is a partner at the Indianapolis law firm of Wooden & McLaughlin LLP (www.woodmclaw.com). He publishes the blog Indiana Commercial Foreclosure Law at commercialforeclosureblog.typepad.com. Johns phone number is 317-639-6151, and his e-mail address is jwaller@woodmclaw.com.
Author: John Waller
Keywords: foreclosure, commercial foreclosure
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By admin
March 13th, 2009 at 12:13pm
Under Legal
In todays workplaces, employees are increasingly viewed as a companys most valuable resource, the key to gaining a competitive advantage. Workplace flexibility, including paid leave, is often viewed as an important tool for getting there. Yet, the low-income workers in the ever-expanding service industry too rarely are in jobs that offer essential flexibility. The Washington, DC-based Center for Law and Social Policy (CLASP) is part of a growing number of entities working to change that.
Emphasizing the fact that the United States is not among the 139 nations that already offer paid leave for short- or long-term illnesses, the group is one of 56 organizations including the National Partnership for Women & Families, AFL-CIO, NAACP and the United Auto Workers that wrote to the U.S. Congress earlier this year in support of a bill currently in the Senate, the Healthy Families Act (HFA). Introduced by Sen. Edward Kennedy (D-MA) and Rep. Rosa DeLauro (D-CT) in 2005, the bill calls for a minimum number of paid sick days for employees.
If the HFA became law it would provide for seven paid sick days for full-time workers and a pro-rata amount for part-time workers who work at least 20 hours a week. Firms with fewer than 15 employees would not be obligated to comply. Finally, no changes would be required of organizations that already have adequate paid sick days in place.
Why is this issue so important? The U.S. Bureau of Labor Statistics and the Institute for Womens Policy Research have found that about half of all private-sector employees dont have access to a single paid sick day. Jodie Levin-Epstein, deputy director of CLASP, points to an even larger dilemma affecting low-income parents that was uncovered by The Urban Institute. Forty-one percent of low-income parents below between 100 and 200 percent of the poverty level dont receive any kind of paid time off no paid sick time, no paid vacation time and no paid personal time, she says. This shows that low-wage families are working on a tightrope.
CLASPs work in support of the measure emphasizes workplace flexibility, both for the employee and the employer. The group takes the stance that employers that offer employees flexible scheduling can experience a wider range of benefits, including greater employee retention and productivity, as well as lower health care costs. In fact, the Institute for Womens Policy Research released a study in support of the HFA which found that if workers were provided seven paid sick days a year the same number of days for full-time workers proposed in the HFA the net savings to our economy in the form of reduced turnover, higher productivity and fewer illnesses in the workplace would be over $8 billion per year.
Levin-Epstein says that the practice of presenteeism, wherein workers come to work while ill, contributes heavily to the spread of illnesses in the workplace. Under the HFA, however, she says that this practice has the greatest chance of being substantially reduced. Lindsey Lee, the owner of Cargo Coffee in Madison, Wisconsin, agrees. Employees working sick are not working effectively, Lee says. Ive had periods where it seemed like a domino effect, referring to employees making other employees sick.
For some small business owners, financial limitations make it impossible to provide health care coverage for their employees. In light of this, paid time off for illness has become a both a viable and desirable option. There are other independent restaurants nearby. My employees could very easily go and get a job elsewhere, says Barbara Wright, who owns a Mediterranean restaurant in Madison called The Dardanelles. [Paid sick days are the only thing I can offer, the only thing I can afford. Wright reports that this attempt to promote a greater work/life balance has boosted her staffs morale. Lee has seen a similar boost in morale among his staff. Its a benefit they dont expect, but are happy to get, he says.
Carla Cohen, who manages Politics and Prose, a bookstore in Washington, DC, says, Paid sick days is affordable if the owners care about their business over the long haul and not just about pulling out as much money as they can. Cohen sees the practice as mutually beneficial to her employees, her stores sales and her customers. Our objective is to have employees remain with us as long as possible because we give better customer service that way, she says. People come to us to buy books rather than a chain where the employees do not know anything.
The bookstore offers a minimum of three weeks of paid vacation and leave for every employee working more than 24 hours a week. The amount of paid time off increases the longer an employee works there. The result, Cohen says, has been remarkable retention: Of 60 mostly full-time employees, a dozen have been with the bookstore for 10 or more years, and another 20 employees have worked there for between five and 10 years.
These businesses are similar in a number of ways: They offer paid leave for sick days, they value their employees as a resource, they are flexible and they are successful. These are the enterprises that CLASP and the other groups behind the HFA point to as examples of better workplaces made possible through the development of paid sick leave practices. CLASP and a growing number of groups are hoping that the U.S. will join the roster of nations that recognize the benefits of implementing paid sick days for businesses, their workers and society at large.
Paid Sick Leave: Additional Resources
CLASP: Getting Punched (pdf) http://www.clasp.org/publications/gettingpunchedfullnotes.pdf
Institute for Womens Policy Research http://www.iwpr.org/index.cfm
National Partnership for Women & Families http://www.nationalpartnership.org/
The Urban Institute http://www.urban.org/
Sample Legislation
City of Madison, WI (pdf) http://legistar.cityofmadison.com/attachments/4247.pdf
State of Maine http://janus.state.me.us/legis/LawMakerWeb/externalsiteframe.asp?ID=280015993&LD=%091044&Type=1&SessionID=6
Commonwealth of Massachusetts http://www.mass.gov/legis/bills/senate/st01/st01130.htm
Federal: Healthy Families Act Senate Bill S.932 http://thomas.loc.gov/
Winning Workplaces’ goal is to provide small and midsize employers with proven, practical, and affordable people practices. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information. We help employers assess needs and develop strategies to improve their workplace practices.
For more information, please contact us at: http://www.winningworkplaces.org
Author: Mark Harbeke
Keywords: paid sick leave,sick days,vacation time,low-income workers,workplace illness,presenteeism
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By admin
March 13th, 2009 at 12:13pm
Under Legal
I arrived to help my client prepare for his upcoming mediation. The first thing he did was show me all the wonderful family photos he had of his client and her husband, the decedent.
My guy was the perfect plaintiff, the attorney began. Spent tons of time with his kids. He was the one who took them to school most every morning, he coached all their teams. An elder in his church. Loved by his neighbors. A consummate professional. His wife is a great witness. And this, he said pointing to the autopsy photos, is what happened to him. Were going to ring the bell on this one.
I viewed the photos silently, but all I was thinking was, So what?
So what?
CONSIDER YOUR AUDIENCE
Yes, so what? These photos, the stories, the personification of the deceased all have their place in a trial. In a mediation, its slightly different. Were not playing to jurors. Were playing to the person who holds the purse strings. The insurance adjuster. Does an insurance adjuster care that your young client was Phi Beta Kappa? Not likely. Is an insurance adjuster emotionally affected because your clients legs were burned off him while he sat half in and half out of the SUV that had just rolled over on him? Doubtful.
Insurance adjusters have seen the worst of the worst. They see horrific injuries every day. They see perfect plaintiffs every day. It doesnt move them. What do insurance adjusters care about?
Insurance adjusters care about one thing more than anything in the world, even more than money.
Risk.
When an insurance adjuster is listening to and watching a mediation presentation by a plaintiff, she is asking herself, What is my downside here? What is my risk level? And she is constantly weighing the risks of going to trial versus the costs of settling with money that the insurance company would prefer to hold on to for a little longer.
YOUR OBJECTIVE: COMMUNICATE THE RISK
When you start putting together your mediation presentation, instead of asking, Whats great about my case? ask yourself, If I were the adjuster, what about this case would freak me out?
THE ELEMENTS OF THE SPHINCTER-TIGHTENING PRESENTATION
Their Witnesses and Documents
The first answer is bad defense witnesses. Since lawyers in generaland busy defense firms in particulartend to do a terrible job of prepping witnesses before deposition, it is imperative that you videotape all key defense witnesses: company witnesses, doctors and even experts. If you are in the habit of videotaping everything, good for you. If not, now is a good time to get in that habit.
As much as possible, tell the story using defense witnesses. Pull out the parts of depositions that show blazing incompetence, indifference or best yet, bad motive. As much as possible, include documents generated by the defense to bolster your case.
Adjusters dont typically see witness testimony before trial. If theyve got some awful witnesses, make the adjuster painfully aware of it. Start and end with their horrible witnesses.
The Timeline
Sure, a timeline is always helpful for audience comprehension. But in the mediation presentation, you want to use the timeline to highlight points in the process at which the defendants could have made different choices that would have spared the plaintiff his fate. Did they hire against policy? Fail to train? Decide not to inform the customer base of a potentially fatal flaw in the safety product? Put it in the timeline.
WHAT ABOUT MY PLAINTIFF?
Of course your plaintiff needs to be included in the presentation. Doing so serves two purposes: 1) it shows the other side that either your client is a gem (or perhaps that in this venue it wont matter if he isnt); and 2) its good client relations. But the plaintiff should be a coda, just a quick notice to the defense that they wont be able to score big on your guy.
The big dollars dont lie in the beauty of your plaintiffs life and the tragedy of his loss. The big dollars lie in the adjusters uneasiness about the risk. And if you can get the adjusters sphincter to tighten, her hands may well loosen.
Bob Gerchen is a nationally-known jury consultant and author who helps lawyers communicate with people who don’t have law degrees through consulting, books, articles, a newsletter and seminars. His Courtroom Presentation Tips newsletter (http://www.winmorecases.com) offers free tips for lawyers to help them win more cases. Bob is also the author of the book, 101 Quick Courtroom Tips for Busy Lawyers (http://www.CourtroomPresentationTips.com). To speak to Bob directly, call 1-877-863-0909.
Author: Bob Gerchen
Keywords: mediation personal injury, mediation practice, mediation preparation, mediation program, atla, torts
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