The New South Wales Supreme Court set aside a personal guarantee given by an elderly third party guarantor for a $23 million loan to a property development company. The Court found that the transaction was not adequately explained to the guarantor by an independent advisor as required. Specifically, the solicitor advising the guarantor was not independent as he also advised the borrower, and his explanation of the transaction and risks was cursory and incomplete. As a result, the Court ruled it would be unconscionable to enforce the guarantee against the guarantor. This case reinforces the need for independence in advising third party guarantors and the obligation of lenders to ensure adequate independent advice is provided. It also
The court appoints a receiver to enforce a judgment against several judgment debtors. The receiver is given broad powers to investigate and take control of the debtors' assets and records. This includes investigating properties, business interests, bank accounts, transfers of assets, and employment of agents. The debtors are ordered to turn over financial documents and records to the receiver and are prohibited from interfering with the receiver or disposing of assets.
The court granted a motion to add additional judgment debtors to a $1.8 million judgment against plaintiff Stephen Gaggero. The additional judgment debtors included six entities (four limited partnerships and two LLCs) that were formerly owned by Gaggero, totaling $35-40 million in assets in 1998. It also included the trustee, Joseph Praske, of three trusts that now owned the entities, after Gaggero transferred ownership of the entities to the trusts in 1998 as part of an "estate plan". The court found all were alter egos of Gaggero based on evidence that Gaggero controlled the entities and trusts, and used them to avoid creditors like the defendants in this case. The additional judgment
This order grants a motion for assignment of rights and restrains judgment debtors from certain financial activities. It assigns the judgment debtors' rights to payments (now and in the future) from various accounts, properties, lawsuits, trusts, individuals and entities to the judgment creditors until an outstanding judgment is paid in full. It also requires the judgment debtors to post an undertaking to stay enforcement of the order.
Horsehead Holdings: Guy Spier Submission to Judge SontchiGuy Spier
1) Guy Spier is a professional investor appearing before Judge Sontchi to request the appointment of an equity committee in the bankruptcy of Horsehead Holdings.
2) Spier argues that shareholders were surprised by Horsehead's bankruptcy filing and that an equity committee is needed to represent shareholders' interests, ensure fairness, and protect investors' trust in the market system.
3) Spier acknowledges that appointing an equity committee would make the judge's job more difficult but argues that justice requires taking time for fairness, not efficiency.
The document is a standard residential inspection agreement between Advantage Inspection Professionals, LLC and a client. It outlines the scope of a limited visual inspection for defects in a residential property. The client agrees to read the inspection report promptly and contact the inspector with any questions. The inspector is not responsible for environmental or health issues and any legal claims must be initiated within one year. Any disputes will be resolved through binding arbitration.
This document summarizes a bankruptcy court ruling on confirmation of a reorganization plan for Horsehead Holding Corp. The court found that while the plan was proposed in good faith, the lack of a market check meant the only evidence of value was competing expert testimony. The court determined that equity holders' valuation of $842 million using a discounted cash flow method was reasonable. However, the court had not yet made a final determination on whether the plan satisfied the absolute priority rule's requirement that creditors not receive more than full repayment, thereby impairing junior creditors and equity holders.
This document is an excerpt from an omnibus order written by the author for a judge regarding a credit card collection case. The order summarizes that while the plaintiff established a valid contract existed between the creditor and defendant, the plaintiff failed to provide sufficient documentation proving a valid assignment of the debt from the creditor to the plaintiff. As a result, the judge granted summary judgment for the defendant rather than the plaintiff.
Horsehead Holdings May 2nd Equity Committee Hearing TranscriptGuy Spier
This document summarizes the proceedings from a bankruptcy court hearing regarding motions to appoint an official committee of equity security holders for Horsehead Holding Corp. Guy Spier, one of the movants, addresses the court to argue for the appointment. He emphasizes that as shareholders, he and others have traveled far and spent their own money to be heard, unlike the lawyers opposing them who are being paid by Horsehead. While acknowledging bankruptcy risks for equity holders, Spier argues that Horsehead's bankruptcy filing came as a surprise to shareholders without proper warning.
The court appoints a receiver to enforce a judgment against several judgment debtors. The receiver is given broad powers to investigate and take control of the debtors' assets and records. This includes investigating properties, business interests, bank accounts, transfers of assets, and employment of agents. The debtors are ordered to turn over financial documents and records to the receiver and are prohibited from interfering with the receiver or disposing of assets.
The court granted a motion to add additional judgment debtors to a $1.8 million judgment against plaintiff Stephen Gaggero. The additional judgment debtors included six entities (four limited partnerships and two LLCs) that were formerly owned by Gaggero, totaling $35-40 million in assets in 1998. It also included the trustee, Joseph Praske, of three trusts that now owned the entities, after Gaggero transferred ownership of the entities to the trusts in 1998 as part of an "estate plan". The court found all were alter egos of Gaggero based on evidence that Gaggero controlled the entities and trusts, and used them to avoid creditors like the defendants in this case. The additional judgment
This order grants a motion for assignment of rights and restrains judgment debtors from certain financial activities. It assigns the judgment debtors' rights to payments (now and in the future) from various accounts, properties, lawsuits, trusts, individuals and entities to the judgment creditors until an outstanding judgment is paid in full. It also requires the judgment debtors to post an undertaking to stay enforcement of the order.
Horsehead Holdings: Guy Spier Submission to Judge SontchiGuy Spier
1) Guy Spier is a professional investor appearing before Judge Sontchi to request the appointment of an equity committee in the bankruptcy of Horsehead Holdings.
2) Spier argues that shareholders were surprised by Horsehead's bankruptcy filing and that an equity committee is needed to represent shareholders' interests, ensure fairness, and protect investors' trust in the market system.
3) Spier acknowledges that appointing an equity committee would make the judge's job more difficult but argues that justice requires taking time for fairness, not efficiency.
The document is a standard residential inspection agreement between Advantage Inspection Professionals, LLC and a client. It outlines the scope of a limited visual inspection for defects in a residential property. The client agrees to read the inspection report promptly and contact the inspector with any questions. The inspector is not responsible for environmental or health issues and any legal claims must be initiated within one year. Any disputes will be resolved through binding arbitration.
This document summarizes a bankruptcy court ruling on confirmation of a reorganization plan for Horsehead Holding Corp. The court found that while the plan was proposed in good faith, the lack of a market check meant the only evidence of value was competing expert testimony. The court determined that equity holders' valuation of $842 million using a discounted cash flow method was reasonable. However, the court had not yet made a final determination on whether the plan satisfied the absolute priority rule's requirement that creditors not receive more than full repayment, thereby impairing junior creditors and equity holders.
This document is an excerpt from an omnibus order written by the author for a judge regarding a credit card collection case. The order summarizes that while the plaintiff established a valid contract existed between the creditor and defendant, the plaintiff failed to provide sufficient documentation proving a valid assignment of the debt from the creditor to the plaintiff. As a result, the judge granted summary judgment for the defendant rather than the plaintiff.
Horsehead Holdings May 2nd Equity Committee Hearing TranscriptGuy Spier
This document summarizes the proceedings from a bankruptcy court hearing regarding motions to appoint an official committee of equity security holders for Horsehead Holding Corp. Guy Spier, one of the movants, addresses the court to argue for the appointment. He emphasizes that as shareholders, he and others have traveled far and spent their own money to be heard, unlike the lawyers opposing them who are being paid by Horsehead. While acknowledging bankruptcy risks for equity holders, Spier argues that Horsehead's bankruptcy filing came as a surprise to shareholders without proper warning.
BoyarMiller - Review of Boilerplate Contract Provisions: Say What You Mean an...BoyarMiller
Review of Boilerplate Contract Provisions: Say What You Mean and Mean What You Say
Presented by: Chris James & Jon Goch
to HYLA - Houston Young Lawyers Association on
March 4, 2015
Contractual Provisions: What Do They Really Mean and How Can They Work for You?BoyarMiller
Andrew Pearce and David Stockel, shareholders in BoyarMiller’s litigation group, discussed what you need to know around contractual provisions – interpretation and legal support behind forum/venue selection clauses, merger clauses, arbitration provisions, prevailing party clauses, jury waivers, and others.
This document is the spring 2016 issue of the newsletter for the Technology and Construction Bar Association (TECBAR). It contains three articles summarizing recent cases relevant to TECBAR members. The first article analyzes the recent case of Burgess v Lejonvarn and discusses the boundary between contractual and tortious duties. The second article comments on the case of Grove Developments Limited v Balfour Beatty Regional Construction Limited and its clarification of when the Construction Contracts scheme may be implied. The third article provides a case note on the Supreme Court's decision in Cavendish Square Holding BV v Talal El Makdessi, which reassessed the limits of penalties in contracts. The issue also announces that the
Riverisland: Inordinate Burdens or Leveling the Playing Field, California Litigation, Vol. 27, No. 2 (July 2014).
Discusses the litigation implications of the new fraud exception to the parol evidence rule, including the likely coming application to at-will employment contracts.
BoyarMiller – The Before, During, and After of Non-Compete AgreementsBoyarMiller
This document summarizes considerations for drafting, enforcing, and defending against non-compete agreements. It discusses effective provisions to include, such as requiring employees to confirm they are not bound by other non-competes, and provisions for returning confidential information. It also notes issues to avoid, like contractual venue clauses and liquidated damages provisions that could undermine requests for injunctive relief. Additionally, it provides examples of letters to new hires about non-compete obligations and of orders that lacked necessary specificity in defining restricted activities.
This document outlines the essential requisites for forming valid contracts under Philippine law. It discusses the key elements needed for consent between contracting parties, including things like offer and acceptance, as well as circumstances that can invalidate consent such as mistakes, violence, intimidation, undue influence or fraud. It also defines concepts like simulation of contracts, and notes that absolutely simulated contracts are void while relatively simulated contracts can be valid depending on certain conditions.
1. The document contains 36 multiple choice questions about key concepts from the Indian Contract Act of 1872.
2. The questions cover topics like voidable contracts, contingent contracts, consideration, breach of contract, capacity of parties and discharge of contracts.
3. Correct answers are provided for each question to test the reader's understanding of important principles from contract law in India.
The document provides an overview of the Indian Contract Act of 1872. It discusses key elements of a valid contract according to the Act, including offer and acceptance, lawful consideration, capacity and consent of parties, lawful object and certainty of terms, and possibility of performance. The Act is applicable to all of India except Jammu and Kashmir and concerns legal obligations or rights between parties (in personam) rather than rights to property (in rem). Contracts are classified in the document based on enforceability, formation, and performance.
The document provides an overview of the Indian Contract Act of 1872. It discusses the key elements of a valid contract according to the act, including offer and acceptance, lawful consideration, capacity and consent of parties, lawful object, certainty of terms, and possibility of performance. It also classifies contracts based on their enforceability, formation, and performance. The act applies to all of India except Jammu and Kashmir and governs contractual rights between parties.
This document provides an overview of negotiable instruments and Article 3 of the Uniform Commercial Code (UCC). It discusses key concepts like promissory notes, negotiability, indorsement, holders in due course, presentment, and warranties. Some main points covered include:
- Article 3 of the UCC governs negotiable instruments and only applies to documents that promise payment of a fixed sum, like checks and promissory notes.
- For an instrument to be negotiable it must be transferable, allowing ownership to be passed from one party to another through delivery or indorsement.
- A holder in due course takes an instrument in good faith, for value, and without
John Smith has a $650,000 judgment against Cat Eye Broadcasting Corporation from an unpaid promissory note. Cat Eye and LOI Group are negotiating a deal and want to pause the judgment until the deal is completed or fails. The parties agree that Smith will not take any collection actions on the judgment during the standstill period, which lasts until the deal is finished or fails. The agreement also specifies notice procedures, governing law, confidentiality, and other standard legal terms.
New York’s Appellate Division Affirms Trial Court’s Ruling that Failure to Co...wolffsamson
The appellate court affirmed the lower court's ruling that the failure to comply with the conditions precedent in a performance bond precludes recovery by the obligee, even if defective work is discovered after completion. Specifically, the court agreed that the owner failed to comply with notice and other requirements in the AIA A312 bond after discovering water intrusion over a year after construction was finished. Strict compliance with bond conditions is required regardless of whether work remains unfinished.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
The document summarizes several key developments that have impacted litigation in Texas. These include: narrowing the scope of general personal jurisdiction over non-resident defendants; the availability of Rule 91a motions to dismiss baseless claims and mandatory fee awards for prevailing parties; expanding uses of anti-SLAPP motions to dismiss; recognizing double-derivative shareholder suits for closely-held corporations; clarifying the standard for spoliation jury instructions. The document analyzes important cases related to each development and discusses the implications for litigators in Texas.
The court denies the plaintiff's motion to vacate an arbitration award and confirms the award. The plaintiff, an actor, had argued that his role in a commercial was that of a principal performer rather than an extra. The parties' contract required arbitration of disputes. The arbitrator determined the plaintiff's role was an extra. The court finds the arbitrator acted within the scope of authority granted by the contract and plaintiff's arguments do not establish grounds to vacate the award such as fraud, corruption or bias. The court also denies the plaintiff's motion to compel the arbitrator to comply with a subpoena, and does not impose sanctions on either party. The clerk is directed to enter judgment accordingly.
This document discusses the role of lawyers in various forums, including in society and the legal profession. It argues that lawyers play an important role in ensuring societal welfare, but that the integrity of the profession has become increasingly challenged due to rising complaints about lawyer conduct. Some of the key points discussed include the increasing number of complaints against lawyers from 1981 to 1994, criticisms of the legal profession from the public and media, the duties and responsibilities of lawyers, and theories around the adversarial legal system.
The assembly will be held on Friday, July 31st to celebrate the feast day of Saint Ignatius. Students will gather in the school auditorium for a presentation about the life and teachings of Saint Ignatius, the founder of the Society of Jesus. The day will honor Saint Ignatius and his legacy through prayer, reflection, and discussion of how to live out his vision of service and compassion.
Phrasal verbs are idioms formed from combining verbs with prepositions or adverbs. These new phrasal verbs have different meanings than the original verbs. The document then provides examples and explanations of verb tenses in English including the present continuous, present perfect, present perfect continuous, past continuous, future, future perfect, and past perfect.
BoyarMiller - Review of Boilerplate Contract Provisions: Say What You Mean an...BoyarMiller
Review of Boilerplate Contract Provisions: Say What You Mean and Mean What You Say
Presented by: Chris James & Jon Goch
to HYLA - Houston Young Lawyers Association on
March 4, 2015
Contractual Provisions: What Do They Really Mean and How Can They Work for You?BoyarMiller
Andrew Pearce and David Stockel, shareholders in BoyarMiller’s litigation group, discussed what you need to know around contractual provisions – interpretation and legal support behind forum/venue selection clauses, merger clauses, arbitration provisions, prevailing party clauses, jury waivers, and others.
This document is the spring 2016 issue of the newsletter for the Technology and Construction Bar Association (TECBAR). It contains three articles summarizing recent cases relevant to TECBAR members. The first article analyzes the recent case of Burgess v Lejonvarn and discusses the boundary between contractual and tortious duties. The second article comments on the case of Grove Developments Limited v Balfour Beatty Regional Construction Limited and its clarification of when the Construction Contracts scheme may be implied. The third article provides a case note on the Supreme Court's decision in Cavendish Square Holding BV v Talal El Makdessi, which reassessed the limits of penalties in contracts. The issue also announces that the
Riverisland: Inordinate Burdens or Leveling the Playing Field, California Litigation, Vol. 27, No. 2 (July 2014).
Discusses the litigation implications of the new fraud exception to the parol evidence rule, including the likely coming application to at-will employment contracts.
BoyarMiller – The Before, During, and After of Non-Compete AgreementsBoyarMiller
This document summarizes considerations for drafting, enforcing, and defending against non-compete agreements. It discusses effective provisions to include, such as requiring employees to confirm they are not bound by other non-competes, and provisions for returning confidential information. It also notes issues to avoid, like contractual venue clauses and liquidated damages provisions that could undermine requests for injunctive relief. Additionally, it provides examples of letters to new hires about non-compete obligations and of orders that lacked necessary specificity in defining restricted activities.
This document outlines the essential requisites for forming valid contracts under Philippine law. It discusses the key elements needed for consent between contracting parties, including things like offer and acceptance, as well as circumstances that can invalidate consent such as mistakes, violence, intimidation, undue influence or fraud. It also defines concepts like simulation of contracts, and notes that absolutely simulated contracts are void while relatively simulated contracts can be valid depending on certain conditions.
1. The document contains 36 multiple choice questions about key concepts from the Indian Contract Act of 1872.
2. The questions cover topics like voidable contracts, contingent contracts, consideration, breach of contract, capacity of parties and discharge of contracts.
3. Correct answers are provided for each question to test the reader's understanding of important principles from contract law in India.
The document provides an overview of the Indian Contract Act of 1872. It discusses key elements of a valid contract according to the Act, including offer and acceptance, lawful consideration, capacity and consent of parties, lawful object and certainty of terms, and possibility of performance. The Act is applicable to all of India except Jammu and Kashmir and concerns legal obligations or rights between parties (in personam) rather than rights to property (in rem). Contracts are classified in the document based on enforceability, formation, and performance.
The document provides an overview of the Indian Contract Act of 1872. It discusses the key elements of a valid contract according to the act, including offer and acceptance, lawful consideration, capacity and consent of parties, lawful object, certainty of terms, and possibility of performance. It also classifies contracts based on their enforceability, formation, and performance. The act applies to all of India except Jammu and Kashmir and governs contractual rights between parties.
This document provides an overview of negotiable instruments and Article 3 of the Uniform Commercial Code (UCC). It discusses key concepts like promissory notes, negotiability, indorsement, holders in due course, presentment, and warranties. Some main points covered include:
- Article 3 of the UCC governs negotiable instruments and only applies to documents that promise payment of a fixed sum, like checks and promissory notes.
- For an instrument to be negotiable it must be transferable, allowing ownership to be passed from one party to another through delivery or indorsement.
- A holder in due course takes an instrument in good faith, for value, and without
John Smith has a $650,000 judgment against Cat Eye Broadcasting Corporation from an unpaid promissory note. Cat Eye and LOI Group are negotiating a deal and want to pause the judgment until the deal is completed or fails. The parties agree that Smith will not take any collection actions on the judgment during the standstill period, which lasts until the deal is finished or fails. The agreement also specifies notice procedures, governing law, confidentiality, and other standard legal terms.
New York’s Appellate Division Affirms Trial Court’s Ruling that Failure to Co...wolffsamson
The appellate court affirmed the lower court's ruling that the failure to comply with the conditions precedent in a performance bond precludes recovery by the obligee, even if defective work is discovered after completion. Specifically, the court agreed that the owner failed to comply with notice and other requirements in the AIA A312 bond after discovering water intrusion over a year after construction was finished. Strict compliance with bond conditions is required regardless of whether work remains unfinished.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
The Rules Have Changed: Developments that Impact the Landscape of Texas Litig...BoyarMiller
The document summarizes several key developments that have impacted litigation in Texas. These include: narrowing the scope of general personal jurisdiction over non-resident defendants; the availability of Rule 91a motions to dismiss baseless claims and mandatory fee awards for prevailing parties; expanding uses of anti-SLAPP motions to dismiss; recognizing double-derivative shareholder suits for closely-held corporations; clarifying the standard for spoliation jury instructions. The document analyzes important cases related to each development and discusses the implications for litigators in Texas.
The court denies the plaintiff's motion to vacate an arbitration award and confirms the award. The plaintiff, an actor, had argued that his role in a commercial was that of a principal performer rather than an extra. The parties' contract required arbitration of disputes. The arbitrator determined the plaintiff's role was an extra. The court finds the arbitrator acted within the scope of authority granted by the contract and plaintiff's arguments do not establish grounds to vacate the award such as fraud, corruption or bias. The court also denies the plaintiff's motion to compel the arbitrator to comply with a subpoena, and does not impose sanctions on either party. The clerk is directed to enter judgment accordingly.
This document discusses the role of lawyers in various forums, including in society and the legal profession. It argues that lawyers play an important role in ensuring societal welfare, but that the integrity of the profession has become increasingly challenged due to rising complaints about lawyer conduct. Some of the key points discussed include the increasing number of complaints against lawyers from 1981 to 1994, criticisms of the legal profession from the public and media, the duties and responsibilities of lawyers, and theories around the adversarial legal system.
The assembly will be held on Friday, July 31st to celebrate the feast day of Saint Ignatius. Students will gather in the school auditorium for a presentation about the life and teachings of Saint Ignatius, the founder of the Society of Jesus. The day will honor Saint Ignatius and his legacy through prayer, reflection, and discussion of how to live out his vision of service and compassion.
Phrasal verbs are idioms formed from combining verbs with prepositions or adverbs. These new phrasal verbs have different meanings than the original verbs. The document then provides examples and explanations of verb tenses in English including the present continuous, present perfect, present perfect continuous, past continuous, future, future perfect, and past perfect.
This paper empirically examines the impact of Virginia's 1995 abolition of parole on criminal activity using time series analysis. Descriptive statistics show that most crime rates declined slightly after 1995, except for assault, robbery, and auto theft rates. Regression models with seasonal effects find the policy intervention was not a statistically significant predictor of any crime rate. Adding unemployment and consumer price index variables did not change these insignificant results. While the models found an initial drop in crime rates at the time of intervention, rates quickly rebounded and remained largely stable and unaffected by the stricter sentencing policy. The findings do not support the hypothesis that increasing sentencing costs deters criminal behavior.
The document summarizes a presentation given by Larry Sullivan and Carla Wood on expected returns on investments in biomass and biofuel projects using the Capital Asset Pricing Model (CAPM). It provides historical return on capital employed (ROCE) benchmarks for various industries including oil & gas extraction (29.53%), agriculture/forestry (72.02% and 137.39%), basic chemicals (21.25%), petroleum refining (46.33%) and petrochemical conversion (18.47%). It concludes that for advanced biofuels projects to attract capital, they need to demonstrate over 20% ROCE based on the CAPM and benchmarks from the oil, gas, and chemical industries.
Ashley R. White has extensive experience in restaurant, hospitality, and retail marketing from positions at Outback Steakhouse, Morton's of Chicago, and Oscar Mayer Foods Corporation. She has strong communication, organization, budget, and management skills developed through creating, executing, and supporting both local and national marketing programs. Her diverse background allows her to think strategically and work collaboratively with a variety of individuals and groups.
Jacqueline Roxlau was remembered after passing away in 2012. She never married or had children but lived a full life focused on her friends and community. She was a dedicated friend, Blues fan, church member, and longtime employee of Bell Telephone. Roxlau supported various charities, including St. Patrick Center, for over 20 years and left the organization a generous gift in her estate. She is remembered for her kindness and prioritizing others.
Benchmarking is measuring an organization's policies, products, and strategies against standards or competitors to identify areas for improvement. The document outlines the benchmarking process, which includes preparation, data collection, analysis, reporting, and implementing improvements. It provides examples of best practices from organizations like Pizza Hut, the Indian Army, and Toyota that focus on continuous improvement, quality, teamwork, and discipline. The document recommends ways an educational institution can benchmark against these practices to enhance skills development, industry exposure, motivation, and leadership among students and faculty.
1) In a case before the UK Supreme Court (Cramaso LLP v Ogilvie-Grant, Earl of Seafield), a trust employee sent an email to an individual containing implied false statements about grouse population on a moor. The individual later formed a limited liability partnership that entered into a lease of the moor.
2) The Supreme Court found that the trust had made a continuing representation up until the contract was signed, and that this representation was being made to and relied upon by the LLP at the time of contracting.
3) The article discusses issues around potential liability for misrepresentations made by agents, both before and after they become an agent. It notes that a principal may be
Indiana Attorney General Todd Rokita says the Disciplinary Commission is bowing to "political pressure" in its effort to make his confidential agreement public.
This document provides information about executorship and probate. It defines what it means to be an executor and outlines the steps an executor must take, including obtaining probate, protecting assets, paying debts, and distributing the estate. The document notes that being an executor can be a complex and time-consuming role, and estates often take 9-12 months to finalize. It also discusses who can contest a will and considerations for an executor such as funeral arrangements, protecting assets, and accounting to beneficiaries.
Small claims court is a real court governed by Florida rules that handles monetary claims of $5,000 or less. It provides an expedited process for plaintiffs to file a statement of claim against defendants. The court then schedules mandatory mediation within 50 days, and if needed, a trial within 60 days. Though informal, small claims court follows evidentiary rules and any judgment carries the same legal weight as other civil courts. Parties should understand the procedures and protections to effectively use small claims court for resolving monetary disputes.
This document discusses strategies for collecting on a money judgment after it has been obtained. It notes that the first step is to record the judgment with the clerk of court where the debtor owns real property to create a lien. Next, discovery must be used to find any assets or income of the debtor that could be seized, such as bank accounts, wages, or personal property. Methods like garnishment, levy on property, and interrogatories are described. However, the document cautions that collecting a judgment can be difficult and time-consuming, so it is important to determine beforehand if the debtor actually has assets that can satisfy the judgment amount.
City Water International Inc. v. Wax Hairdressing Inc.Matthew Riddell
This case involves a dispute over a renewal contract for the rental of a water cooler. The plaintiff, City Water International Inc., claimed the defendant, Wax Hairdressing Inc., breached the renewal contract by failing to make payments. The court found that the individual who signed the renewal contract on behalf of Wax Hairdressing had apparent authority to bind the company. The court also found Wax Hairdressing was estopped from arguing it was not bound by the contract given it made payments according to the contract for years. The court awarded damages of $1879.25 to the plaintiff.
Trinity Kings World Leadership discovers how (former attorney) Milton Raiford...Terrell Patillo
The document discusses the risks lawyers face from aiding and abetting and civil conspiracy claims from third parties. These "in-concert liability" claims can arise when a lawyer helps a client commit a tort or breach fiduciary duties owed to a third party, even if unintentional. The document outlines how these claims typically arise in contexts of fraud or breaches of fiduciary duty. It also discusses available defenses for lawyers and issues around insurance coverage for these claims. Lawyers can best avoid these risks by considering how legal services may harm third parties or help clients commit wrongs.
1. Uniform Commercial Code › U.C.C. - ARTICLE 2 - SALES (2002) › PART 3. GENERAL OBLIGATION AND CONSTRUCTION OF CONTRACT › § 2-302. Unconscionable contract or Clause.
§ 2-302. Unconscionable contract or Clause.
(1) If the court as a matter of law finds the contractor any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
(2) When it is claimed or appears to the court that the contractor any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.
https://www.law.cornell.edu/ucc/2/2-302
Weaver v. American Oil Company
276 N.E.2d 144 (1971)Supreme Court of Indiana.
ARTERBURN, Chief Justice.
In this case the appellee oil company presented to the appellant-defendant leasee, a filling station operator, a printed form contract as a lease to be signed, by the defendant, which contained, in addition to the normal leasing provisions, a "hold harmless" clause which provided in substance that the leasee operator would hold harmless and also indemnify the oil company for any negligence of the oil company occurring on the leased premises. The litigation arises as a result of the oil company's own employee spraying gasoline over Weaver and his assistant and causing them to be burned and injured on the leased premises. This action was initiated by American Oil and Hoffer (Appellees) for a declaratory judgment to determine the liability of appellant Weaver, under the clause in the lease. The trial court entered judgment holding Weaver liable under the lease.
Clause three [3] of the lease reads as follows:
"Lessor, its agents and employees shall not be liable for any loss, damage, injuries, or other casualty of whatsoever kind or by whomsoever caused to the person or property of anyone (including Lessee) on or off the premises, arising out of or resulting from Lessee's use, possession or operation thereof, or from defects in the premises whether apparent or hidden, or from the installation existence, use, maintenance, condition, repair, alteration, removal or replacement of any equipment thereon, whether due in whole or in part to negligent acts or omissions of Lessor, its agents or employees; and Lessee for himself, his heirs, executors, administrators, successors and assigns, hereby agrees to indemnify and hold Lessor, its agents and employees, harmless from and against all claims, demands, liabilities, suits or actions (including all reasonable expenses and attorneys' fees incurred by or imposed on the Lessor in connection therewith) for such loss, damage, injury or other casualty. Lessee also agrees to pay all reasonable expenses and attorneys' fees incu.
The document summarizes the key elements of a valid contract under Nepalese law:
1. Offer and acceptance between two parties with free consent are required. Consent must be free from coercion, undue influence, fraud or misrepresentation.
2. The terms of the contract must be certain and performance must be possible. Object and consideration must also be lawful.
3. Parties must have capacity to contract and intention to create legal obligations. Agreements may be invalid if illegal, against public policy, or create unreasonable restraint of trade.
4. Time, manner and place of performance are based on agreement or reasonableness. Damages for breach are compensatory, not punitive, and limited
This document summarizes an appeal from an order granting a motion to add additional judgment debtors to a judgment in a malpractice lawsuit. The additional judgment debtors included entities (limited partnerships and LLCs) that were previously owned by the plaintiff, an entity that managed the plaintiff's assets, and trusts to which the plaintiff had transferred ownership of the entities. The trial court found all were alter egos of the plaintiff. The additional judgment debtors and plaintiff appealed, raising arguments that they were legally separate and the evidence was insufficient, but the appellate court affirmed, finding the arguments unpersuasive.
Florida Last Will and Testament: The Basics. Learn the ins and outs of Wills, including the important clauses, and the different types of Wills. Last Will and Testaments are an important part of Estate Planning. This presentation is brought to you by Gadiel A. Espinoza, LAW, a Miami Estate Planning Attorney.
John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
Legal language is well known for its unusual words and terms. It is very difficult for a common person to understand the meaning of the words that are used in legal language.
This document discusses the concepts of misrepresentation and fraud in contracts. It begins by defining representation and the difference between representations of fact versus promises. It then examines key elements of misrepresentation, including that a misrepresentation must be a false statement of existing fact, addressed to and relied upon by the misled party. The document outlines defenses to misrepresentation claims and notes the psychological element that distinguishes fraud (the intent to deceive). Specific types of fraudulent statements and active concealment of facts are described. The document concludes by noting that while misrepresentation involves unintentionally misleading statements, fraud requires an intent to deceive the other party.
This document discusses the liability of strangers as constructive trustees under Malaysian law. It defines a stranger as a third party who is not appointed as a trustee but may incur liability if they receive or deal with trust property with actual or constructive notice of a breach of trust. There are three types of strangers: those not liable, innocent volunteers, and those liable as constructive trustees or "trustees de son tort." A person can be a trustee de son tort by intermeddling with trust matters or acting as a trustee without authority. Their liability depends on knowing receipt or dealing with trust property, or knowing assistance of a breach of trust. Over time, courts have taken different approaches to the knowledge and mental state required for stranger liability.
This document discusses several issues that arise in mortgage foreclosure cases when the original promissory note has been sold and transferred multiple times during the securitization process.
It notes that a high percentage of notes have been "lost or destroyed" during securitization. While UCC §3-309 provides a process for enforcing lost notes, the foreclosing party must prove they are the holder of the note. However, in many cases the chain of assignments is broken and it is impossible to prove who the real holder is.
The document examines issues of standing, pleading requirements that the real party in interest be named, and evidentiary problems when witnesses cannot directly testify to facts of the default but only what is stated in computer
PRIVILEGE COMMUNICATION BETWEEN ADVOCATE AND CLIENTRahulRanjan352
This document discusses privilege communication between advocates and clients under Indian law. It begins by defining the attorney-client privilege as the oldest privilege in Anglo-American law, ensuring clients can freely share secrets with their lawyers without fear of disclosure. It then examines what constitutes an attorney-client relationship under Indian law, noting it can be implied from conduct but requires reasonable belief a relationship exists. The document also discusses what types of communications between lawyers and clients are considered confidential and protected by privilege, as well as exceptions under Indian Evidence Act sections 126-129.
Principles of Trust: Classification and CreationPreeti Sikder
Learning Outcome:
Students will :
-be informed about the major divisions among the concept of trust
-learn about the basic legal conditions a trust has to fulfill under Trusts Act, 1882
Similar to Independence and unconscionability - Lessons for lenders and solicitors in advising third party guarantors (19)
2. www.carternewell.com
Quadwest was wholly owned by another Christopher
Rose company, and Christopher Rose was a director and
secretary of Quadwest. Mr Peter Rose was a director of
Quadwest from December 2005 to September 2008, and
from October 2008 up to and including 2011 when the
Alceon loan was negotiated. Mr Peter Rose had worked
as a builder and was involved in the construction side of
the project. Mrs Rose had no involvement in Quadwest’s
activities.
As a condition of the $23 million loan to Quadwest,
Alceon required from Mr and Mrs Rose personal deeds of
guarantee and indemnity for $2 million and a mortgage over
the family home at Clontarf, New South Wales. It was not
in dispute that those documents were executed by Mr and
Mrs Rose, and the loan was advanced.
Quadwest defaulted on the loan and Alceon sought to
enforce the personal guarantees of Mr and Mrs Rose,
and its rights under the mortgage over the family home.
Both Mr and Mrs Rose resisted the orders sought by
Alceon on a number of grounds. This newsletter focuses
on the contention of Mrs Rose that the transaction was
not adequately explained to her and that to enforce the
transaction against her would be unconscionable.
The law
The High Court in Garcia identified certain circumstances
in which a guarantee such as that signed by Mrs Rose
would not be enforced on the basis that to do so would be
unconscionable.
Those circumstances were described by the majority in
Garcia as being where ‘the lender took no steps itself to
explain … the purport and effect [of the transaction] to her
or did not reasonably believe that its purport and effect had
been explained to her by a competent, independent and
disinterested stranger’.2
Where that failure has occurred, according to the majority
in Garcia, the following circumstances make the transaction
unconscionable:
1. The surety did not in fact understand the purport and
effect of the transaction;
2. The transaction was voluntary (in the sense that
the surety obtained no benefit from the contract the
performance of which was guaranteed);
3. The lender is to be taken to have understood that, as a
wife,3
the surety may repose trust and confidence in her
husband in matters of business and therefore the lender
is also taken to have understood that the husband may
not fully and accurately explain the purport and effect of
the transaction to his wife; and yet
4. The lender did not itself take steps to explain the
transaction to the wife or find out that a stranger had
explained it to her.4
The circumstances surrounding
Mrs Rose’s guarantee
A solicitor by the name of Thomas Lennox (solicitor) had
advised Quadwest on the prospective loan from Alceon,
and was actively involved in the negotiations between the
solicitor’s client Quadwest, and a Mr Cronin of Alceon.
The solicitor was assisted in the matter by another lawyer,
Patricia Tsang.
The solicitor sent an email to Christopher Rose attaching
various documents including an Acknowledgment by
Guarantors, a Declaration (as to receipt of independent
legal advice) and a Consent to LegalAdvice (from a partisan
solicitor). More about these documents is said below.
In communicating Alceon’s requirement for advice to be
given to Mrs Rose, Mr Cronin wrote to the solicitor that:
‘[Alceon’s] legal advice and obligation as lender is
that [Mr & Mrs Rose] have to be advised of the risks
associated with their guarantee in this circumstance – we
understand that this advice need only be independent of
Alceon and [its solicitors], so Lennox or Tsang would
suffice. We believe that this advice need only be brief
but is a requirement – sorry, I know this is logistically
difficult but needs to be done.’
The solicitor then had a telephone conversation with
Christopher Rose, Mr Peter Rose and Mrs Rose in which he
informed them to the effect that if Quadwest did not comply
with its obligations, Alceon could demand the personally
guaranteed amount of $2 million, and if the loan was still
not satisfied, could exercise its rights under the mortgage,
including selling the family home.5
Was the solicitor’s advice
adequate?
Before considering Alceon’s state of knowledge about
the solicitor’s advice to Mrs Rose (in order to assess the
defences raised by Mrs Rose), the court considered the
adequacy of the advice in fact provided to her. Although her
Honour made clear that the solicitor was not a party to the
proceedings and had not had an opportunity to be heard
in relation to any findings of fact against him, her Honour’s
assessment of what she found to be the solicitor’s advice
remains a useful guide for practitioners.
As to the solicitor’s telephone call to the three members of
the Rose family about the effect of the mortgage, the court
found the call to be no more than ‘a formality to meet the
bare requirements of Alceon’.
Further, the solicitor himself advanced no case that he
had made any attempt to explain to Mrs Rose the effect
of either the Declaration (which stated that Mrs Rose
had received independent legal advice regarding the
transaction and freely signed the mortgage, guarantee and
other documents) or the Consent to Legal Advice (which
purported to constitute a consent by Mrs Rose to receiving
advice from a solicitor who was advising other parties to
the transaction and so (in the court’s summation of the
effect of the document) was ‘hampered in giving Mrs Rose
independent or even complete legal advice’).6
Moreover, the court noted that the solicitor was well aware
that the Declaration was ‘simply false’7
in that he knew he
had not provided Mrs Rose with the advice that, by signing
the Declaration, she stated she had been given.
The Court considered that Alceon’s suggestion that the
advice to Mrs Rose ‘need only be brief’ was ‘not necessarily
correct’.8
Rather, what was required was advice that Mrs
Rose could comprehend, and the solicitor was obliged to
take steps to ensure that she understood it.