Archive for December, 2008

» Recent Developments in Banking and Investment Law On Sunday, December 28th, 2008

Beginning in 2008 there has been perhaps no area in the law that has seen more activity than in the arena of banking and investment law. The fact is that unless you have been living in a cave in some remote location you have at least some understanding of how volatile the banking and investment industries have become in recent months. Indeed, most experts agree that there has not been a more challenging time in the areas of banking and investments since the Great Depression some eighty years ago.

In regard to banking and investment law one of the more significant changes has been an alteration in the rules and regulations that have kept certain financial institutions from becoming involved in consumer banking. In recent months, a number of financial institutions that previously were not permitted to become involved in consumer banking have been permitted to do so. The argument has been that these institutions will become more financially viable if they were allowed to engage in providing banking services directly to consumers.

Another banking and investment regulation change that directly effects consumers centers on the amount of money deposited by a consumer in certain financial institutions that will be provided with FDIC protection. Historically, a consumer could have on deposit in a bank up to $100,000 that would be fully insured by the FDIC. In other words, if the bank ended up going under (which is becoming a common concern in this day and age) a consumer was insured for up to $100,000 deposited at such a bank.

With the current problems and concerns associated with the banking industry generally, the FDIC has temporarily increased the amount of money it will insure on behalf of consumers who deposit money with certain financial institutions. Until the end of December 2009, the amount of money on deposit at a particular institution that the FDIC fully will insure on the part of a consumer has risen to $250,000. Therefore, a consumer can now have on deposit at a single bank up to a quarter of a million dollars that will be fully insured by the FDIC until the end of 2009. (There is some talk that this date may be extended into the future although no firm or definitive decision has been made in this regard at this time.)

Finally, when it comes to banking and investment law, there has been a real tightening in the way in which financial institutions can package and sell home mortgage loans to other institutions and investors. Many experts maintain that one of the reasons why there are such significant financial problems today arises from the fact that institutions and individuals ended up investing in packages of higher risk loans – these packaged loans known as derivatives. Therefore, there have been some major changes in the way home mortgage loans can be “packaged and resold” from this point on into the future. In addition, there are likely to be additional changes in the laws governing the status of these derivatives or “packages” of mortgage loans and the buying and selling of these “securities” into the future as well.

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» Civil Law: Understanding the Basics of Civil Procedure On Sunday, December 28th, 2008

Statistically speaking, odds are that the average person will end up involved in a lawsuit – either as a plaintiff or defendant – at least one time during the course of his or her life. (This does not include being involved in a divorce case; rather, this refers to the statistical probability that a person will be involved in a lawsuit involving a personal injury or contract dispute at some point during his or her lifetime.)

Because it is likely that a person will end up involved in a lawsuit for one reason or another during his or her lifetime, it does behoove a person to have a basic understanding of what is known as civil procedure. Through this article a basic overview is provided of the essential elements of civil procedure. With that noted, when it comes to civil procedure, if a person has any specific questions in regard to civil procedure or if a person finds his or her self involved in a lawsuit, that individual is best served by seeking legal assistance immediately. This article is not intended to provide legal advice to any individual that is facing or involved in a lawsuit.

The most important factor that a layperson must keep in mind when it comes to civil law and civil procedure is something known amongst lawyers as the “statute of limitations.” In simple terms the statute of limitations refers to the deadline by which a lawsuit must be filed. For example, if a person is involved in an accident, that individual must file suit for injuries or damages sustained as a result of that accident with a period of time set forth by the statutes of the state in which he or she lives. If the individual fails to bring a suit within that time frame, that person normally will be prevented from filing suit at any time in the future.

The same holds true if there is a breach of contract. If a person wants to sure because of a breach of contract, that individual needs to file suit within a specified period of time or he or she will be forever banned (in most cases) from bringing suit.

As was mentioned a moment ago it is important to keep in mind that the deadlines for filing suit vary from state to state. However, it is commonplace for the statute of limitations pertaining to personal injury cases to have a lawsuit filing deadline of two years from the date of the accident. In many states, a breach of contract lawsuit must be brought in three years from the date of the contract breach. But, again, these time frames do vary from state to state. If you have a question about the statute of limitations in your own state, you must contact a lawyer to make sure that your own rights fully are protected in this regard.

There are exceptions to the general laws governing time frames in which cases are filed. For example, if a person is injured as a minor child, in most states he or she has a certain period of time after he or she turns 18 to file a lawsuit. But, again, the laws do vary from state to state.

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» An Overview of Computers and Technology Law On Sunday, December 28th, 2008

The 21st century truly is the “high tech age.” As a consequence, computers and technology law is of crucial importance. In point of fact there are an ever growing number of issues relating to computers and technology law at this juncture in history. With that in mind, this overview of computers and technology law is presented.

One of the more active areas in regard to computers and technology law involves issues stemming from copyright. When it comes to computers, the Internet and technology law, copyright issues have become very commonplace. Protecting copyright interests with the growth of the Internet has become particularly problematic. In point of fact, with the growth of the Internet, and with the increasing incidence and complexity of copyright issues associated with the Net, there is a whole new legal specialty including attorneys that focus their practices on these issues.

Copyright issues extend beyond the Internet as well into the arena of software and hardware development as well. In regard to computers and technology law, the protection of intellectual property associated with software and hardware is extremely important. Once again, this is an area which has given rise to a whole new legal specialty consisting of attorneys who are focusing their energy and efforts on protection the intellectual property interests of those men, women and companies involved in the design and development of software applications and computer related hardware.

Of course, some of the most important developments that have occurred in regard to computers and technology law are related to music and the downloading of music off of the Internet and World Wide Web. Through both litigation in courts and statutes and regulations that have gone into effect, there continues to be a great deal of activity in the arena of protecting the copyright interest of people involved in the music industry on different levels.

Although it has not become as prevalent as many industry analysts predicted, there has been a slow but nonetheless fairly steady increase in the number of people who are using ebooks at the present point in time. (Many experts predicted about five years ago that there would be a significant number of people using and reading ebooks by this point in time. While this significant increase that was contemplated in the past has not occurred, the number of ebook users is higher than it was five years ago.)

With the increase in ebook usage – again, which is expected to expand at least to some degree in the next few years – there has been a growing concern associated with protecting the copyright interest of authors who are finding their work in ebook form. On a number of levels, it is a more complicated task to protect written materials that are included in ebooks that is the case with traditional, “brick and mortar world” publications. Therefore, in regard to computers and technology law, there is a growing interest amongst attorneys in developing more effective avenues through which the content of ebooks can be protected in this high tech age.

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» Construction Law Trends in the 21st Century On Sunday, December 28th, 2008

Over the course of the past 24 months, there has been an increasing emphasis on construction law and trends in construction law. Therefore, if an individual is involved in the construction business or in an affiliated industry, it is important to have a basic understanding of these construction law trends at this point in time in the 21st century. Through this article, you are provided a review of these trends.

One of the most significant trends associated with construction law in this day and age revolves around construction enterprises that are finding themselves in the position of having to deal with projects that are not being completed because of financial problems on the part of the developer. Indeed, at this point in time a record number of developments are being halted midstream due to financial problems facing the developers themselves.

In this regard, construction companies of different types – from contractors to all manner of subcontractors – are finding it necessary to cover issues relating to defaults and termination of construction projects prior to completion due to financial problems being experienced by developers.

Many developers actually are ending up in bankruptcy. Therefore, when it comes to construction law related issues, a prime concern of companies and individuals in the construction industry is being able to protect their interests in the confines of bankruptcy proceedings. Therefore, a good number of these types of construction related business enterprises are finding it imperative to engage legal representation that is well versed in the arena of bankruptcy defense and in related areas of the law.

Another significant trend in the arena of construction law at this juncture in the 21st century involves making sure the enterprises involved in the construction industry are as fully protected as possible when it comes to the contracts that they enter into with developers and other enterprises involved in the industry. Provisions in these contracts that provide adequate protection to these construction related enterprises in the event of one kind of default or another are becoming of particular concern.

Finally, when it comes to trends relating to construction law, contractors liens are becoming an even more important issue. In simple terms, these are liens that are placed on real estate when a contractor or subcontractor performs work relating to that property. These liens provide a contractor, subcontractor or other construction industry related entity at least some level of additional protection in the event that a particular project ends up on the skids for one reason or another. In theory, a contractor, subcontractor or other similar type of entity can foreclose on that lien.

Once again, as was noted previously, when it comes to legal issues and challenges facing the construction industry presently, an enterprise in this industry is well served engaging the services of an experienced attorney. In the end, the best course that a business enterprise in the construction industry can take when it comes to protecting and defending their legal interest is through the assistance of a qualified, experienced and reputable attorney.

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» Understanding the Basics of Creditor’s Rights On Sunday, December 28th, 2008

In this day and age an ever increasing number of people are finding themselves experiencing problems relating to their finances and to their debt. However, lenders of different types are also experiencing problems in this day and age. Therefore, it is crucial for people to fully understand their rights as creditors. Through this article you are provided with an overview of some of the basics associated with creditors rights in this day and age.

First, when it comes to creditor’s rights and debt collection issues, a lender has the right to initiate legal action against a borrower when the borrower has failed to honor the terms and conditions of any loan agreement. Some borrowers and debtors try to claim that enforcing the terms of loan agreement is “unfair” or an undue burden on these individuals because of their other financial obligations, problems and issues. However, and again, provided the loan agreement is written in a manner consistent with applicable statutes and regulations, and provided that the borrower is in breach of that agreement, a creditor has an absolute right to pursue legal remedies as permitted by law.

Second, in regard to creditor’s rights, if there is collateral involved with a loan – for example, a loan for an auto or a home mortgage loan – a creditor has the right to obtain possession and ownership of that collateral provided the provisions of the law are followed. Once again, a creditor has the absolute right to pursue repossession or foreclosure.

Third, as a creditor, another right that accrues when there is collateral related to the underlying loan is the right in most states to obtain what is known as a deficiency judgment. In other words, if a creditor takes possession or ownership of collateral – for example, an auto or a piece of real estate – the creditor can sell these properties to pay off the loan balance. If the proceeds from the sale of these properties does not cover the amount outstanding on the loan, the creditor (in most jurisdictions) has the right to take further legal action in order to obtain a judgment for any additional money that is due and owing under the terms and conditions of the loan in question. Once a judgment is obtained a creditor can pursue collection of that judgment through such means as garnishment of bank accounts or paychecks as well as other means.

In many instances, a creditor is best served by seeking the services of a qualified attorney when it comes to dealing with obtaining compensation for a loan that has gone into default. Indeed, there are lawyers that specialize in the areas of collections, repossession and foreclosure. There are also attorneys that deal in bankruptcy defense actions as well. In other words, there are attorneys who specialize in assisting clients who have been named in bankruptcy cases by individuals who owes money to these clients. In the end, creditors typically are best served in protecting their interests through the engagement of attorneys who specifically are versed and experienced in defending and furthering the interests and the rights of these creditors.

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» Alternative Dispute Resolution: The Growth of Arbitration and Mediation in the 21st Century On Saturday, December 27th, 2008

As the court systems become increasingly backlogged with cases, alternative dispute resolution is becoming an ever more important aspect of the overall judicial system in the United States and in other countries the world over. The primary elements of alternative dispute resolution are arbitration and mediation. While some people use the terms arbitration and mediation synonymously, the fact is that arbitration and mediation are two distinct types of alternative dispute resolution.

Arbitration involves the parties to a case coming together in front of a certified arbitrator. Somewhat like in a court setting the arbitrator takes and considers evidence submitted by the parties. The arbitrator will then consider that evidence and issue a decision. In many cases, arbitration is considered binding – binding arbitration. Therefore, the parties are bound by the decision of the arbitrator.

On the other hand, through mediation the parties come together before a certified mediator. Unlike an arbitrator, a mediator does not merely consider evidence and issue an order. Rather, a mediator works to try to bring the parties together towards common ground and an agreement. In mediation, the parties have to reach an agreement through the guidance and assistance of the mediator. The mediator cannot force an agreement upon them.

In this day and age, many contracts now actually require the parties to such agreements to submit any disputes to arbitration before pursuing other legal actions. This has had the effect of expediting some disagreements and conflicts that would be delayed in their determination due to the backlog that many courts are facing today.

Also at this juncture in time there are now some courts that require parties to a dispute before these courts to participate in mediation in an effort to resolve disputes short of a full blown trial. Mediation has become particularly common in the court system in divorce and other cases involving family law issues – child custody, parenting time, child support and so forth.

In arbitration, the losing party normally is responsibly for the fees associated with that process. In mediation, unless there is an agreement otherwise, the parties normally split or share the costs associated with the mediation process. There can be some other payment arrangements as well depending on the circumstances.

As mentioned a moment ago in this article, both arbitrators and mediators receive specialized training. Moreover, these individuals also obtain certification when they have completed a course of training. In most instances, arbitrators and mediators typically do have law degrees. However, having noted this fact, there are some instances in which arbitrators and mediators do have other types of academic and professional backgrounds.

Finally, both arbitration and mediation have resulted in allowing for some cases to move through the judicial system faster than what otherwise would have occurred. In addition, both mediation and arbitration have resulted in a reduction in the costs associated with certain types of cases. Most experts agree that both mediation and arbitration will continue to be more widely used in the court systems in many states across the country.

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» Steps of the Appeals Process: How to Appeal a Case to a Higher Court On Saturday, December 27th, 2008

Television and movies are filled with scenes involving courtroom trials. However, cases pending in appellate courts are not as commonly featured on the big or little screen. Nonetheless, the appellate process is a crucial element of the judicial system. Understanding the appellate process is fundamental for a person who wants to understand fully his or her rights within the judicial system.

Before an appeal from either a criminal or civil case can be filed there needs to be a final judgment of the trial level court. In a criminal case, that final judgment normally is considered to be the sentencing order of the court. In a civil case, the final judgment normally is considered to be the order disposing of all of the issues of the parties to the case itself.

When the final judgment is issued by the court, the next step in the process is the filing of what is known as a Notice of Appeal. A Notice of Appeal actually is filed with the trial court and is designed to give notice to both the trial court and the other party or parties to the case of a person’s intention to appeal.

It absolutely is crucial that the Notice of Appeal be filed within a timely manner. Each state has a specific statute governing the time frame for which a Notice of Appeal must be filed. If a person fails to file a Notice of Appeal within the time permitted by statute, that individual will be forever barred from raising an appeal. From a technical standpoint, the Notice of Appeal and the filing of that notice in a timely manner is considered jurisdictional. In other words, if it is not filed in the manner prescribed by law, the appellate court will never have jurisdiction over the case.

Once the Notice of Appeal is filed, the case moves onward to the appellate court itself. The appellate court will establish a time line for the filing of certain documents and materials with that court. This will include the appellate brief filed by the person lodging the appeal in the first instance.

Following the briefing process, in many cases a hearing will be held at which both sides of the case will present oral arguments to the court. These arguments normally are presented to by the attorneys representing the parties to the case.

It is important to understand that in most cases the appeal process can take from 12 to 18 months from start to finish. There are some instances in which the appellate process is accelerated for specific reasons. However, and again, in most cases the appellate process does not move at a rate faster than the 12 to 18 month time frame mentioned a moment ago in this article.

Finally, it is important to keep in mind that appellate law is a very specialized area in the legal professional. Therefore, a person facing the prospect of an appeal of case definitely will want to consider engaging the services of an experienced appellate attorney.

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» An Overview of Adoption Law On Saturday, December 27th, 2008

A considerable number of people find themselves desiring to pursue an adoption each and every year. While there are some differences in the statutes and regulations governing adoption from one state to another, there are also a number of elements that all of the states have in common. By way of this article, an overview of the common elements of adoption law is provided. Armed with this information a person will be in the best position to pursue the adoption of a child.

The first step in any adoption process is the termination of the parental rights of the birth parents. This can be accomplished in one of two different ways. First, the birth parents can voluntarily surrender their parental rights. Second, if the parents are not willing to voluntarily surrender their parental rights there are instances in which the parental rights can be severed. This normally occurs in a situation in which the birth parents are involved in a situation in which they have been charged with abuse or neglect of the child.

Once the parental rights have been terminated, the child is then available for adoption. During this period of time, a home study is undertaken. The home study is a basic analysis to ascertain whether or not an individual or couple seeking to adopt a child is appropriate to become a parent. The home study consists of an actual consideration of the residential environment itself, the individual’s or couple’s work history and so forth.

Following approval through the home study process, oftentimes the child that is the subject of the proposed adoption can be placed in the potential parents’ home.

A petition is filed with the court seeking the court’s approval for the proposed adoption. The written home study will be filed with the court at this juncture as well. The home study really is a crucial element of the overall court case pertaining to the adoption itself.

The court will schedule a hearing within a specified period of time to consider all of the evidence relating to the adoption itself. Providing that everything is in order, the court will approve the adoption.

You need to understand that when an adoption is approved, it is permanent. There is no going back. When the court issues an order approving an adoption, the child becomes fully and completely the child of the adoptive parents as if that child was the biological offspring of the adoptive parents.

There are attorneys in business today that specialize in adoptions. In some instances, these lawyers not only handle the legal aspects of the adoption itself they also assist couples in finding a child in the first instance. Therefore, a person or couple interested in adopting a child will want to focus their efforts on finding an attorney that specialized in this area of the law. Moreover, depending on the circumstances of an individual or couple seeking to adopt, it can also be important to identify a lawyer that can assist in locating a child available for adoption in the first instance.

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» Pursuing a Slip and Fall Accident Claim On Saturday, December 27th, 2008

Unfortunately, odds are strong that a person will be injured as the result of a slip and fall or similar type of accident at some juncture in his or her lifetime. Therefore, it can be very important for a person to understand how to pursue a slip and fall accident claim. Through this article, an overview of the steps to take in pursuing a slip and fall accident claim is presented.

Perhaps the most important step in successfully pursuing a slip and fall accident claim is making sure that you collect (as best as you can under the circumstances) evidence at the time of the accident itself. For example, if there are witnesses to your slip and fall accident, it is important that you obtain from them a written statement at the time of the accident of what they witnessed. At a minimum you definitely do need to get their names and contact information.

Of course, the reality is that you may be in no position to collect this type of information at the time of an accident. Therefore, if you are with a companion at the time, you need to encourage this individual to assist in collecting necessary information such as that which was mentioned a moment ago in this article. Again, this includes getting written statements – if at all possible – from any witnesses to the event. You need to understand that from a legal standpoint, courts consider contemporaneous witness statements – statements taken at the time of the slip and fall accident, for example – to be of significant value … far more compelling than a statement made at a later date.

In regard to a slip and fall accident, if you want to pursue a claim for compensation you need to make sure that you file a claim in a timely manner. You need to keep in mind that your claim can be denied all together if you do not initially file a claim in a timely manner. Moreover, if you get to the point that you need to take legal action, you need to make sure that such a lawsuit is filed in the time frame allowed by law. Once again, if you fail to file a lawsuit in a timely manner, you will be barred – through the operation of what is known as the statute of limitations – from brining such a lawsuit at any time.

With all of this in mind, in many instances a person like you is best served by seeking legal representation when it comes to a slip and fall accident and recovering the compensation that is due to you. In most cases, an attorney willing to take this kind of case will not charge you any fee for services unless and until you prevail on your claim for compensation arising out of your slip and fall injury case. Therefore, engaging the services of an attorney can be not only an important step but also an actual investment in your ability to successfully pursue a slip and fall claim.

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» Landlord and Tenant Law: Eviction for Nonpayment of Rent On Friday, December 26th, 2008

The most common type of legal action that arises out of a landlord and tenant relationship is a lawsuit filed to evict a tenant for nonpayment of rent. In order for a landlord to be able to prevail in this type of action, certain specific steps must be taken.

The first step in the eviction process is the preparation and service on the tenant of what commonly is called a “Three Day Notice.” The Three Day Notice advises the tenant that because the rent is unpaid the landlord intends to exercise his or her rights to regain possession of the property in question. The notice itself gives the tenant three days to pay the rent that is due and owing together with any appropriate and applicable late fees and other charges.

As an aside, while this notice commonly is referred to as a Three Day Notice the statutory provisions in some states actually require a tenant to be given precisely 72 hours from the date such a notice is served in order to bring the rent current and to clear up any other related, appropriate charges being assessed by the landlord.

The running of the time for payment established in the notice commences running from the point that the notice itself is served on the tenant. The notice can be served either in person or by posting at a conspicuous location at the rental property itself.

If the tenant does make payment within the 72 hour or three day time period, the tenancy continues. If the tenant does not make payment pursuant to the terms of the notice, the landlord then is in a position to file an eviction action.

The statutes and regulation in different states do vary to some degree when it comes to eviction actions. In some states, an eviction action moves at a very fast pace. In other states, an eviction case is not on as quite of an accelerated schedule but will still move forward fairly rapidly.

Generally, an initial hearing will be held at which time the tenant can request a trial. The trial itself normally will occur in fairly short speed. At the trial, the landlord will present evidence supporting the nonpayment of rent issue. The tenant will present any defense that he or she might have. In reality, in a nonpayment of rent case, the only real defense in most states is that the tenant did, in fact, pay the rent. Most states do not permit a tenant to withhold rent even if there are problems associated with the premises. (There are other remedies available to a tenant in such situations.)

If the landlord does prevail and demonstrates that the tenant has failed to pay the rent due and owing and that no legal reason existed for the nonpayment, the court will issue what is known as a writ or restitution or writ of assistance (or something to that effect). This writ (or order of the court) directs the tenant to vacate the premises. If the tenant does not vacate the premises promptly the writ further directs the sheriff of the county in which the property is located to remove the tenant from the premises.

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