By Elspeth Crawford According to the FBI, identity theft is the fastest growing crime in the U.S., with over 700,000 victims a year. Learning about how it is commonly committed can help you prevent it from happening. Ordinary Theft Identity thieves increasingly make use of high-tech methods to poach personal information, but ordinary theft is still a distinct possibility. Identity thieves can go rooting through your trash for identifying information about you, steal mail from out of your mailbox, or simply snatch your wallet or purse from a public place. Shoulder-Surfing If he or she has a good memory, an identity thief can get a prolonged look at your personal information, say your credit card number, in a public place and then memorize that number for later use. Skimming Identity thieves can use small credit card readers to copy and later use the information on a card’s magnetic strip. This practice is called skimming. Skimming most often occurs when people turn their credit cards over to another person who then runs it through a card reader. This doesn’t mean that you have to walk back to the kitchen every time you use your credit card to pay at a restaurant, but be wary of letting your card out of sight at establishments you do not trust. Phishing Phishing occurs when an identity thief sends a fake e-mail to a user claiming to be from an institution which the user trusts. The identity thief might, for example, send a user an e-mail purporting to be from their bank and telling the user that there is a problem with one of their accounts. The user would then be directed to a phony website and tricked into giving away personal information in an attempt to fix the made-up problem. Related to phishing is pharming, a practice which also makes use of phony websites but does not involve using e-mails to trick a user into visiting those websites. Instead, pharming redirects users to a phony website even if they type the correct website address into their browsers. Careful monitoring of your spam folder and keeping your malware protection current can help protect against phishing and pharming behavior. Wireless Hacking Be wary of connecting to the internet via an unprotected wireless network. Such networks are easier to hack into than password-protected networks, and your information could become pray to identity thieves. Hard-Drive Rebuilding Many people keep sensitive information on their hard drives. When it comes time to get a new desktop computer, be sure to erase the data on your hard drive before disposing of it. Otherwise, enterprising identity thieves may be able to rebuild your hard drive and extract information from it. Laptop Theft Likewise, be cautious when taking your laptop out in public. Laptop theft is increasingly common, and thieves can use the information stored in a laptop to your disadvantage. The same applies to Smartphones, which are even easier to steal than laptops. Social Networking Many people post personal information on social networking sites like Facebook. You’re unlikely to put something like your social security number of Facebook, but the information you do provide can allow identity thieves to put together a profile of you they could use to get more sensitive information. For this reason, be wary of accepting invitations from people you do not know. Computer Security Attacks The reality is that even if you are not careless about your personal information and have it registered only with reputable institutions, you may still be vulnerable to identity theft. Identity thieves can hack into the records of such institutions and steal those records, or someone at the institution could steal them from within. The Privacy Rights Clearinghouse in the USA documented over 900 data breaches by major firms over a period of three years which resulted in a total of 200 million records being compromised. No method of protection is absolute, but it’s fully within your power to minimize risk. If the worst should happen, know what steps to take following an identity theft.
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All states require drivers to buy automobile insurance, but the reality is that, whether out of ignorance, inability, or unwillingness, many drivers ignore this requirement. If you get into an accident with such a driver and you do not have uninsured motorist coverage, you may find yourself needing to take the uninsured driver to court in order to recover damages. Seeing as how that driver could not afford insurance in the first place, it seems unlikely that you will recover anything from them. For this reason, it is prudent to purchase uninsured motorist coverage where you have the option to do so. In a handful of states, it is required. How it Works Most uninsured motorist laws give coverage for all sums the owner would be legally entitled to recover if the uninsured motorist was insured, but the specifics involving just what the motorist would have been entitled to recover differ state by state.
Definition of Uninsured Vehicle Definitions of an uninsured vehicle change slightly from state to state, but most define it as a driver who did not have any insurance, had insurance that did not meet state-mandated minimum liability requirements, or whose insurance company denied their claim or was not financially able to pay it. Most laws also specify that uninsured vehicles include:
Coverage of Persons It is very important that the person claiming benefits under an uninsured motorist policy fall within the policy’s definition of an “insured.” Those covered differ from policy to policy and it is vital that you understand who is covered before making a purchase. People commonly covered include:
Underinsured Motorist Insurance You can also purchase insurance that protects you from underinsured drivers in addition to uninsured ones. An underinsured driver is someone who met minimum legal financial responsibility requirements but did not have payment limits high enough to cover the damage they caused. Underinsured motorist protection pays you for damages that exceed the payment limits carried by a driver who is considered underinsured. Every state in the union requires that drivers carry some kind of liability insurance. Such insurance protects you in the event of an accident where you might otherwise be vulnerable to an expensive and lengthy lawsuit. At the same time, insurance policies can be difficult to manage both before and after an accident. Knowing how to communicate with an insurance company at all points in the process is very important. Talking with your insurance company after an accident
Talking with the other driver’s insurance company after an accident
Managing Your Claim
By Elspeth Crawford Basics An S corporation is a corporation created under state law that elects to be taxed under Subchapter S of the Internal Revenue Code. This election results in an S corporation being treated as a pass-through entity for federal income tax purposes, the profits and losses of which pass through to the shareholders rather than being taxed to the corporation. Apart from the manner in which it is taxed, an S corporation is indistinguishable from a C corporation. A S corporation is formed in the same manner as a C corporation, its shareholders enjoy the same limited liability protections, and it is managed in the same manner. In order to qualify as an S corporation for federal income tax purposes, the corporation must file an election with the Internal Revenue Service. This election can be revoked at any time by the consent of the shareholders. It may also be terminated under certain circumstances. If an S corporation election is in effect, profits and losses of the corporation are passed through and taxed on the individual returns of the shareholders. All shares of stock of an S corporation must have the same rights to dividends and liquidating distributions. In some states that levy income taxes, S corporations are treated as pass through entities. In other states with income taxes, S corporations are treated in the same manner as C corporations. Owner’s Liability The treatment of S corporations is the same as that of C corporations from the standpoint of shareholder liability. Making an S corporation election only affects the income taxation of a corporation. It does not affect the limited liability of the corporation's shareholders, who enjoy limited liability to the same extent as shareholders of a C corporation. Control S corporations the same as C corporations from the standpoint of management and control. Making an S corporation election only affects the income taxation of a corporation. It does not affect the management of the corporation. Transferability of Ownership Interests An S corporation is the same as a C corporation from the standpoint of transferability of ownership interests. But there are limitations on the types and number of persons that may hold stock of an S corporation. If stock of an S corporation is transferred to a person other than an individual (who is not a nonresident alien), estate, or trust qualified to hold S corporation stock, or if a transfer results in stock being held by more than 100 shareholders, the S corporation election will be terminated. Consequently, S corporations typically have in effect buy-sell agreements or other arrangements that restrict transfers of stock that would cause termination of the S corporation election. The same securities law and control issues that affect the transferability of stock of C corporations also affect S corporations. As with a C corporation, an S corporation's existence that is not affected by the death, dissolution, incapacity, or bankruptcy of a shareholder, although its S corporation election could be jeopardized if stock ends up in the hands of a person who is not qualified to be an S corporation shareholder. The existence of an S corporation, like a C corporation, is not affected by the resignation of an officer or director. Organizational and Maintenance Costs An S corporation the same as a C corporation from the standpoint of the formalities required for creating and operating the corporation. The only difference between an S corporation and a C corporation in this regard relates to income tax return filing requirements. An S corporation must file an information return for federal income tax purposes even though its income or losses are passed through and taxed to its shareholders, whereas a C corporation files its own income tax return and pays tax on its own income. For state income tax purposes, an S corporation may be treated as a pass-through entity or may be treated the same way as a C corporation. Tax Attributes A corporation can avoid the double taxes that are imposed on profits of a C corporation if the corporation elects to be taxed as an S corporation. An S corporation is taxed something like a partnership. The corporation files an information return for federal income tax purposes, but its income or loss is passed through and is taxed to the shareholders of the corporation. The deduction of losses by S corporation shareholders is subject to the passive loss limitations and at risk rules. As with a limited liability company (LLC), an S corporation combines limited liability with pass-through income tax treatment. The taxation of S corporations and limited liability companies is, however, not the same in all respects. An LLC with more than one member is taxed as a partnership and therefore provides three tax advantages not shared by S corporations:
On the other hand, S corporations can provide employment tax advantages. Shareholders are subject to FICA tax only on salaries or other compensation paid to them—undistributed S corporation income and dividends paid by S corporations are not subject to employment tax. In contrast, each member of an LLC who is an individual must, in most cases, pay self-employment tax each year on his or her share of the LLC's income, whether or not the income is distributed to the member. The only members who are exempted are those in manager managed LLCs who do not materially participate in the business of their LLCs. An S corporation can also provide favorable tax treatment in connection with the development and sale of real property. If a shareholder sells undeveloped property to an S corporation, the shareholder will recognize capital gain or loss. If the corporation develops and then sells the property, the incremental increase in value created by the corporation's development services will generate ordinary income that will pass through and be taxed to the shareholder of the corporation. But the shareholder will not be subject to employment taxes on the income, except to the extent it is distributed in the form of compensation. If a partner or member sells development property to a partnership or LLC, any gain realized will be ordinary income under I.R.C. § 707(b) if the person owns more than 50% of the capital or profit interests in the purchasing entity. Moreover, the person will be subject to self-employment tax on any income realized on the development of the property. Consequently, the after-tax return realized by the original owner from the sale, development, and resale of the property will not be as great with an LLC as it would be with an S corporation. It should be noted that the problem of double taxation of C corporation's gains on sales of assets is not solved by having the corporation make an S corporation election. If a C corporation makes an S corporation election in anticipation of a proposed sale, it will be subject to built-in gains tax, which results in double tax at the highest rates. If the corporation is already an S corporation, there will not be a double tax on property distributions. There will, however, be a single tax. The inability to withdraw assets from an S corporation without tax prevents business organized in this form from being converted to other forms of entity, such as limited liability companies without tax consequences. On the other hand, rearrangement of the corporate structure or ownership of a S corporation may be possible through several types of tax-free reorganizations so long as the assets remain in corporate solution. Advantages
Disadvantages
INTRODUCTION Assignments and subleases are commonplace. The difference between the two is a product of common law. This article will outline the fundamental differences between assignments and subleases, how the common law arranges the ongoing rights among the parties, and the advisability of certain express agreements that change the common law results. First Comes, First: Definitions The nature of the transfer depends on the quantity of interest in the property is transferred.. This distinction can be conceptualized easier by looking at each definition: Assignment When a tenant transfers its entire interest in a leasehold estate, the transfer is an assignment. To qualify as such, the transfer must include the tenant's entire estate for the duration of the lease. For example, say Sally is an actress who has a 6 month filming gig out in Cannes but 6 months left on her lease. If she decided to transfer of all of the rights she had in her NYC apartment to her friend Monique for the remaining 6 months of her lease that would be an assignment. Sublease In contrast, when a tenant transfers less than the remaining term or less than the tenant's entire estate the transfer is a sublease. For example, if Sally’s gig was only 4 months long and only sublet her apartment to Monique for 4 months, than to back the apartment for the remaining 2 months, it would be a sublease. Determination of whether a tenant has retained a portion of the estate does not depend on the whether the tenant receives less rent than it owes under the lease, or even on whether the tenant transferred the entire premises. An assignment can occur regardless. But, retention by the tenant of even the smallest right with respect to the term constitutes a "reversionary interest" and creates a sublease. For instance, courts would likely construe a transfer as a sublease if Sally retained an option to terminate, extend or renew the prime lease. In fact, the reversionary interest need not even be under the control of the original tenant to qualify the transaction as a sublease. Surprisingly, one factor that does not distinguish an assignment from a sublease is the portion of premises involved. As long as the tenant relinquishes its interest in the portion of the premises transferred for the entire term of the lease, an "assignment pro tanto" occurs. Such a transfer carries all the legal implications of any other assignment, except that the assignee has liability for only a portion of the rent proportionate to the interest it receives in the premises. In our example, an assignment pro tanto if Sally assigned the rights to one of the bedrooms in her apartment to Monique for the remainder of the lease. Most people would think that a sublease has occurred, because less than the entire premises has been conveyed. However, such a transfer creates a form of assignment. This means that the assignee will have privity of estate with the landlord, and may have privity of contract as well. Do I Need Consent? Many leases prevent tenants from assigning or subleasing (or subletting) the lease, primarily because the landlord wants to ensure the payment of rent and know who his or her tenant is at all times. Some leases allow assignments and subleases only when the landlord consents, and some state laws prohibit them unless the landlord consents. When consent is necessary, the laws in almost every state require the landlord to act reasonably, that is, he or she can't refuse consent just because he or she doesn't "like" the original tenant. Nor can the refusal be based on discriminatory reasons, such as the sub-lessee or assignee's gender or race. But, refusal can be based upon the new tenant's inability to pay the rent or bad credit history. Effects of the Transfer Generally, unless the subtenant or assignee agrees, either as part of the assignment or sublease agreement or in a separate agreement, to assume, or accept, the original tenant's obligations under the original lease, the landlord can't enforce any of the lease provisions against the assignee or subtenant. But, an assumption agreement does not release the original tenant from his or her obligations under the master lease unless the original landlord expressly agrees to such a release. So, for example, under any residential lease, the tenant has the obligation to pay rent. After a sublease or assignment is made, the tenant still has that obligation, even if there was an assumption agreement. So, unless the landlord releases the tenant, the landlord can look to the tenant for rent payments if the subtenant or assignee fails to pay the rent. As a tenant, you'll want to get a release from the landlord and an assumption agreement from the subtenant or assignee. As the landlord, in order to best guarantee rent payments, you'll want to insist on an assumption by the assignee/subtenant, and you don't want to release the tenant. Generally, an assignment of a lease results in the assignee stepping into the shoes of the original tenant. The original tenant loses his or her right to live on the premises, and the assignee and the landlord are bound by the lease covenants or promises that run with land, that is, covenants that benefit the land, such as the covenants to pay rent and to make repairs. Usually, the assignee can't avoid its responsibilities, especially liability for rent, by assigning the lease to someone else, and the original tenant is liable on the lease, including payment of rent, unless he or she was released from those obligations by the landlord. In a sublease, unless the subtenant assumes the obligations of the master lease, there's no legal relationship between the subtenant and the landlord, and so the subtenant doesn't have to pay the landlord rent and the landlord doesn't have to respond to the subtenant's request or demand for repairs. Rather, the landlord-tenant relationship is actually between the original tenant and the subtenant. Typically, you, as the original tenant, remain liable for rent: the subtenant will pay you rent, and you're responsible for paying the landlord on time. Also, you're obligated to perform all other covenants under the lease, such as making sure the property is not damaged. The sublease should spell-out how various problems reported by the subtenant will be handled. For example, if the subtenant finds a problem with the premises, such as a leaky roof, he or she can't force the landlord to fix it, unless the subtenant assumed the lease. What will typically happen here is the subtenant would notify you, and you would have to fix the problem or enforce the landlord's obligation to fix it. As practical matters, sublandlords and subtenants should protect themselves as any primary landlord and tenant would, such as having a detailed written lease that spells-out each party's rights and responsibilities and requires the payment of a security deposit. By Elspeth Crawford Recently, pop star Britney Spears began her new gig as a judge on Fox’s “The X Factor,” where she helped coach potential pop stars to singing super-stardom. However, much of the press covering her debut surrounded a quirky rider to her employment contract, which reportedly demanded that her dressing room be stocked with 10 bags of Doritos, 12 Snickers bars, 10 pieces of fried chicken, and 34 designer dresses. It seems extreme, but this is far from the first time a celebrity or other public figure has made an odd request in their contract. Here’s a collection of some of the more interesting ones.
As silly as some of these demands seem, they are contractually valid. A contract consists of three parts: the offer, the acceptance, and the consideration. Offer and acceptance are easy enough to understand: "The X Factor" offered Britney Spears a job and she accepted. Consideration is the benefit the contractor will receive from the agreement. In the case of the Spears deal, the consideration is the work Britney will put in as a judge. Her rider, Doritos and Snickers bars and so forth, is enforceable because she’s giving something in exchange for it. That said, these kinds of contractual demands are often taken less seriously than other, more substantive ones. J. Lo. may have demanded a white couch in her dressing room, but she reportedly settled for a green one. The cost of going to court and paying legal fees on something so trivial likely outweighs any value that could eventually come out of litigation, so those people who have a profile high enough to make such demands probably won’t bother arguing about them in front of a judge. Still, they can likely settle for having enough influence to be able to make them in the first place. By Elspeth Crawford Wage garnishments are governed by an array of state and federal laws, and employers are often confronted by demands from multiple garnishors who all insist that they be paid now. Although the law requires that a significant amount of information be sent to employers along with a demand for wage garnishment, there are some rules that may not be explained by that material. How Is The Garnishment Obtained? In a nutshell, here's how wage garnishment works. A person or entity obtains a judgment in court against an employee or a government agency determines that an employee owes a debt to them. Typically, the judgment relates to child support, unpaid taxes, or student loans. The person or entity to whom the debt is owed is the "garnishor." The employee is the "debtor." The garnishor then applies to a court (if it is a private entity) or goes through an administrative process (if it is a government agency) in order to get a "writ" for garnishment of wages. The writ is essentially the document which gives the garnishor the green light go go after the debtor's wages. That writ is delivered to the employer, as the entity controlling what is paid to the debtor, making the employer the "garnishee." When must an employer start paying on the writ? An employer is required to begin paying on the writ when it is received, unless there are other writs with higher priority (see below). An employer must return a statutory response form within seven days of receiving the writ whether or not the employer will start paying on the writ immediately. Payments are made every time that the employee gets paid and should be prorated if the writ was not in effect for the full pay period. Can an employee challenge a writ? The employee receives a copy of the writ of garnishment sent to the employer. The time period varies from state to state in which the employee may challenge the writ by sending a challenge to the garnishor. Once the employer gets notice that there is a challenge,the employer must not stop paying. Instead, the employer should send payments (on the same schedule) to the court that authorized the writ, rather than the garnishor. The court will hold the money until the challenge is resolved. Was the writ sent to the proper employer? The statutory response form contains several grounds pursuant to which an employer may contest the payment demanded in the writ. The most common objection is that the garnishee is not in fact the employer of the debtor. The employer should contact legal counsel if it has questions about whether it is the proper garnishee to ensure that it is complying with all legal requirements. How much can be taken out of the employee's wages? There is a cap on wage garnishment of 25% of take-home income. In addition, there is a "floor" level of income protected from garnishment that is based on a minimum wage per week. The statutory garnishment calculation worksheet that will accompany the writ will guide the employer through the proper calculations. When can the employer stop paying on the writ? Generally, writs of garnishment expire, whether they have been fully paid or not, within a time set by state law. However, writs issued by a county or county agency, and federal student loans writs, do not expire until paid in full. In general, writs may be "continued" only by a new writ; that is, the garnishor has to supply the employer with a new wage garnishment order in order to continue having the employee's pay garnished. The 90-day clock does not start running until payment on the writ has started. What if there are multiple garnishments? Most of the confusion surrounding wage garnishment occurs when an employer receives more than one garnishment for an employee. The general rule is "first in time, first in right." That is, the first garnishment order gets priority and gets paid first. If the first garnishment is taking the full amount allowed -- 25% -- then the second writ has to wait until the first writ expires (varies between states). However, if the first writ is nottaking the full 25%, then the employer must start paying on the second writ at the amount below 25% that is not being taken. One notable exception is for child support garnishments. These take priority over other garnishments, and will "bump" garnishments that are currently being paid. How does the employer handle federal student loan garnishments? There are special rules for federal student loans. Federal student loan garnishment orders are not subject to state law. However, federal student loan garnishment orders are capped at 10% of income. Consequently, if another garnishment writ comes in while a federal student loan garnishment is being paid, the employer must begin paying on the second writ at 15% of income. If the employee is being garnished on another writ at 25% when the federal student loan garnishment order comes in, the employer does not need to begin paying on the student loan garnishment. In that event, however, the employer should contact the agency that issued the student loan garnishment order, or contact the Department of Education student loan compliance center at (404) 562-6013 and follow up with a letter to: U.S. Department of Education Administrative Wage Garnishment Compliance Branch 61 Forsyth Street, Room 19T89 Atlanta Federal Center Tower Atlanta, Georgia 30365. The compliance center's advice will most likely be to begin paying on the student loan garnishment when the prior writ expires under state law. How does the employer handle tax and child support garnishments? Complications arise when IRS tax levies or child support garnishments conflict with each other or other wage garnishment orders. IRS tax levies and child support garnishments typically take priority over other garnishments, including federal student loan garnishments. An employer should contact the issuing agency (the IRS or the child support enforcement office) for advice specific to the type of garnishments in conflict. If questions remain, the employer should contact legal counsel to ensure that it is not later held liable to both the employee and the garnishor for failing to properly assign priority among claims or for over- or under-paying the garnishments. Garnishments are an extra burden on an employer, but it is essential that they be dealt with correctly. Otherwise, an employer could be held liable both to the employee and the garnishor for any errors. However, seeking and taking advice can make most garnishments a routine part of personnel management. Finally, an employer should remember that, under federal and state law, an employee cannot be discriminated against or terminated because of wage garnishments. By Elspeth Crawford If your lawyer has acted in a way that resulted in your financial loss and violated the lawyer’s code of professional ethics, you may be entitled to recover under a legal malpractice claim. Like medical malpractice claims, legal malpractice claims are usually paid by a malpractice insurer. If you have been wronged by your attorney, a legal malpractice suit may give you a chance at getting remuneration. Ethical Duties Lawyers owe duties to clients which they can be punished for breaking. The duties are set by each state’s individual bar association and change slightly location by location, but ordinarily lawyers must:
Attorneys have many ethical duties, but these are some of the most important and commonly litigated. Malpractice Claims Malpractice claims come in a few different varieties. Three of the most common are claims stemming from a lawyer’s negligence, a breach of a fiduciary duty, or a breach of contract. Negligence. If a lawyer has done something they should not have done or failed to do something they should have, they may have been negligent. Negligence is judged by the standard of care a competent attorney would use under like circumstances. A lawyer might be negligent if he or she misses an important court date, fails to file a case within the prescribed statute of limitations, fails to follow a court order, or does not prepare adequately for trial. Like in all negligence cases, proving liability isn’t as simple as showing that a lawyer made a mistake. Plaintiffs must show that the lawyer owed a duty to them, that the lawyer breached the duty, and that the breach resulted in some form of financial harm to the plaintiff. Showing a link between the breach and a financial harm can be difficult, so make sure that you have a competent legal malpractice lawyer capable of convincingly forecasting loss. Breach of a Fiduciary Duty Lawyers are bound to act with a high degree of honesty and loyalty and in the best interests of their clients. This is called their fiduciary duty, and breaching it can be grounds for a malpractice lawsuit. A lawyer can breach his or her fiduciary duty by representing another client whose interests are averse to the injured client, lying to the client about important information, inappropriately using money that belonged to the client, or making improper sexual advances toward a client. Breach of Contract Breach of contract cases are brought against lawyers who violate the terms of their specific agreements with their clients. Obviously, the circumstances of this will change depending on what kind of agreement the lawyer and the client made. If, for example, the case involves a bankruptcy, the lawyer could be sued for failing to file the client’s schedules as agreed. In order to show liability in a legal malpractice case, the plaintiff must show that they would have won the underlying case if the lawyer had not been negligent, breached his or her fiduciary duty, or breached a contract. This is not an easy thing to prove, so claims for legal malpractice can be particularly difficult to litigate. Insurers know this, so such claims tend to settle less often than do claims in other areas of law. This should not deter you from filing suit if you think you have a case, but know that the life of a legal malpractice suit can be a difficult one. Alternatives to Legal Malpractice If you think your lawyer has wronged you, legal malpractice is not your only option. Here are some alternatives:
By Elspeth Crawford When someone files for bankruptcy, they receive what is called an automatic stay. The automatic stay is a powerful tool which prevents creditors from collecting debts from the bankruptcy estate while the bankruptcy is in progress. For example, a creditor might be threatening to repossess your car because of your failure to pay a car loan, but after the automatic stay kicks in the repossession process will be stopped dead in its tracks. The purpose of the automatic stay is to give the bankruptcy debtor a break from the hounding of creditors and let them have a chance at a fresh start. What Will the Automatic Stay Stop? The automatic stay will protect debtors from many of the various ways creditors use to collect debts. Specifically, it will stop:
Creditors will willfully violate the automatic stay can be sanctioned with damages, costs, attorneys’ fees and, under certain circumstances, even punitive damages. Once a creditor has notice of the automatic stay, they must abide by it or face the consequences. What Will the Automatic Stay Not Stop? The power of the automatic stay is potent but not unlimited. There are several actions which the automatic stay will not stop. These include:
Also note that the automatic stay is designed to protect only the debtor who has filed for bankruptcy. If there is a situation where such a debtor is a co-defendant alongside someone else, only the debtor will be protected from the lawsuit by the automatic stay. There are exceptions to this rule. Specifically, if a co-defendant is so closely related to the debtor such that a proceeding against the former would affect the bankruptcy estate, say for instance if the co-defendant were a wholly owned subsidiary of the debtor, then the co-defendant may be covered by the automatic stay as well. There are also limits on the effectiveness of the automatic stay that kick in if you’ve filed for bankruptcy before. If you filed a bankruptcy that was dismissed by the court in the 12 months prior to filing another bankruptcy, the automatic stay is good for only 30 days. If you had 2 or more bankruptcies dismissed in the twelve months prior to filing another bankruptcy, there is no automatic stay. A court could still grant you an automatic stay if you file a motion setting out why you need one, but you’ll have to fight harder for it than you would have were this your first bankruptcy. When Will Relief From the Automatic Stay be Granted? The automatic stay doesn’t last forever and will end when:
In certain circumstances, creditors can also request that the stay be lifted. For example, a creditor can request that the stay be lifted if the stay does not give them adequate protection in some property in which they have a significant interest. Determining whether their interest is significant enough depends on the property involved and the skill of the lawyers who are making arguments. If you decide to file for bankruptcy, it’s a good idea to retain a lawyer who can advise you on how best to make use of the automatic stay. By Elspeth Crawford If you’re involved in a car accident, there’s a chance that you might file a personal injury lawsuit or that one could be filed against you. In order to win a personal injury lawsuit involving a vehicular accident, the plaintiff must show three things. First, the plaintiff must show that he or she suffered actual harm. Usually, this will not be difficult. The plaintiff must simply identify their injuries. Second, the plaintiff must show that the defendant owed a duty of care but that the defendant breached this duty. Third, the plaintiff must show that the defendant’s breach of the duty of care was the cause of the plaintiff’s harm. Duties of Care Drivers are required to use that degree of care as would a reasonably prudent driver acting in similar circumstances. The details of the duty of care change slightly depending on what kind of vehicle is being driven, who is driving it, and whether or not the vehicle is commercial. However, many basic rules remain the same. Drivers have the duty to:
Causation In cases where an injury is clearly caused by a driver’s negligence, showing causation is easy. In cases where the origin of injuries is not so clear, it can be more difficult. There are a number of tests courts used to determine injury. They vary depending on the state and the situation.
Contributory and Comparative Negligence In order for a plaintiff to recover from a defendant in an automobile accident, the defendant must have acted negligently, that is, in violation of some duty of care. However, it is possible that the plaintiff also acted negligently and that the defendant is only partially, but not entirely, to blame for the accident. The doctrines of contributory and comparative negligence determine how to spread the blame when this occurs.
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