This document discusses how to prepare for and handle claims against community associations. It defines what constitutes a claim and how claims typically arise from issues, disagreements or failures to communicate. It emphasizes the importance of documentation to support decisions and respond to potential claims. When a claim arises, the manager should contact the association's insurance agent and attorney. Ongoing documentation of issues, decisions and communications can help prevent and defend against claims.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
This document provides an overview of key concepts related to bankruptcy, including types of bankruptcies, common shocks experienced during bankruptcy, out-of-court settlement options, steps to file UCC documents, issues related to distressed debtors, actions creditors can take after a bankruptcy filing is made, and definitions of key terms like reclamation and bankruptcy priorities. The document covers corporate and individual bankruptcy filings and considerations, as well as non-bankruptcy liquidation and restructuring alternatives.
1) The US Bankruptcy Court in Delaware recognized insolvency proceedings for SIFCO in the Cayman Islands as a "foreign main proceeding", allowing SIFCO to receive protections under Chapter 15 of the US Bankruptcy Code.
2) In contrast, the New York Bankruptcy Court denied recognition to similar proceedings for two Bear Stearns funds in the Cayman Islands, determining their center of main interests was in New York rather than the Cayman Islands.
3) The determination of a company's "center of main interests" (COMI) is important for whether foreign insolvency proceedings can be recognized in the US and receive protections like the automatic stay of litigation against the debtor.
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.
This document discusses several ways in which corporate separateness can be blurred or exceptions applied in Chapter 11 bankruptcy cases, despite the general presumption of respecting separate corporate entities. It provides 4 key examples: 1) Courts disagree on whether Section 1129(a)(10) requires plan acceptance on a "per plan" or "per debtor" basis. 2) Bankruptcy-remote SPVs may not be bankruptcy proof. 3) Section 510(b)’s language on subordinated claims is ambiguous regarding which debtor entity a claim can be asserted against. 4) Multiple claims arising from the same transaction, such as guarantee claims, are generally allowed despite potential duplication. Overall, the document examines tensions between respecting corporate separat
This month’s litigation group presentation includes a discussion of the state of the law regarding preliminary injunctions in trademark infringement cases. The presentation also examines similar issues with respect to trade secret infringement, particularly as they relate to the doctrine of inevitable disclosure.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
This document provides an overview of key concepts related to bankruptcy, including types of bankruptcies, common shocks experienced during bankruptcy, out-of-court settlement options, steps to file UCC documents, issues related to distressed debtors, actions creditors can take after a bankruptcy filing is made, and definitions of key terms like reclamation and bankruptcy priorities. The document covers corporate and individual bankruptcy filings and considerations, as well as non-bankruptcy liquidation and restructuring alternatives.
1) The US Bankruptcy Court in Delaware recognized insolvency proceedings for SIFCO in the Cayman Islands as a "foreign main proceeding", allowing SIFCO to receive protections under Chapter 15 of the US Bankruptcy Code.
2) In contrast, the New York Bankruptcy Court denied recognition to similar proceedings for two Bear Stearns funds in the Cayman Islands, determining their center of main interests was in New York rather than the Cayman Islands.
3) The determination of a company's "center of main interests" (COMI) is important for whether foreign insolvency proceedings can be recognized in the US and receive protections like the automatic stay of litigation against the debtor.
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.
This document discusses several ways in which corporate separateness can be blurred or exceptions applied in Chapter 11 bankruptcy cases, despite the general presumption of respecting separate corporate entities. It provides 4 key examples: 1) Courts disagree on whether Section 1129(a)(10) requires plan acceptance on a "per plan" or "per debtor" basis. 2) Bankruptcy-remote SPVs may not be bankruptcy proof. 3) Section 510(b)’s language on subordinated claims is ambiguous regarding which debtor entity a claim can be asserted against. 4) Multiple claims arising from the same transaction, such as guarantee claims, are generally allowed despite potential duplication. Overall, the document examines tensions between respecting corporate separat
This month’s litigation group presentation includes a discussion of the state of the law regarding preliminary injunctions in trademark infringement cases. The presentation also examines similar issues with respect to trade secret infringement, particularly as they relate to the doctrine of inevitable disclosure.
Legal Advantage, Ll Cs Latest Legal Research Serviceslegaladvice
This document provides an overview and introduction to the Legal Survival Kit. It discusses the purpose of written agreements in clarifying the terms and obligations of both parties. When conflicts arise over agreements, the document recommends trying to identify what the other party wants and discussing ways to resolve issues without immediately blaming the other side. Lawyers may stir up conflicts for their own benefit, so parties should try to resolve issues themselves through open communication before litigation begins. The overall goal is to provide tools and advice for navigating legal issues while avoiding litigation when possible.
Sentinel Solutions provides asset protection services. The document summarizes key asset protection techniques including insurance, statutory protections like homestead exemptions, and asset placement through entities like trusts. It notes that while asset protection plans can make assets harder for creditors to access, plans cannot be intended to defraud creditors. The summary highlights the main risks that asset protection seeks to mitigate and outlines some basic strategies without endorsing any particular approach.
This document analyzes the legal mechanisms that allow creditors to potentially receive a "double-dip" recovery in bankruptcy through asserting claims against both a guarantor entity and primary obligor entity for the same debt. It describes how a creditor can receive an allowed claim for the full amount owed against each debtor. It also explains how bankruptcy law treats intercompany claims and claims for reimbursement in a way that prevents offsetting of recoveries, allowing the creditor to potentially recover more than the amount owed from multiple entities. However, it notes there are risks like substantive consolidation that could eliminate this result.
Bankruptcy law in the_united_states_rulesRahul Mishra
Bankruptcy law in the United States allows individuals and organizations to legally deal with inability to pay debts. There are two main types of bankruptcy - voluntary, initiated by the debtor, and involuntary, initiated by creditors. The primary purposes of bankruptcy are to give honest debtors a fresh start by discharging most debts, and to repay creditors in an orderly manner. Bankruptcy proceedings involve filing a petition with financial information to establish a bankruptcy estate. There are two main forms - liquidation under Chapter 7, where non-exempt assets are sold to repay creditors, and reorganization under Chapters 11 or 13, where debts are restructured to allow debt repayment over time.
CAN I FILE BANKRUPTCY AGAIN EVEN IF I HAVE FILED BEFOREtonyturnerlaw
Got injured and looking for a personal injury lawyer in Orange Park, Florida? Let Law Office of Tony Turner help you return to the life. We are committed to helping you get the compensation you deserve with our wealth of knowledge and experience. For further details, visit tonyturnerlaw.com/
This document provides an overview of bankruptcy law concepts including eligibility for bankruptcy, how bankruptcy changes leverage for parties, why companies file for bankruptcy, and the automatic stay. It discusses a hypothetical scenario involving a distressed Manhattan office building and examines bankruptcy issues that may arise, such as filing eligibility for limited liability companies. The document also covers factors courts examine for bad faith filings and cases where independent directors or "friendly" involuntary bankruptcy petitions were used.
The document is an outline for a research paper on bankruptcy law submitted for a doctorate program. It includes an abstract, definition of terms, research questions and hypotheses. It discusses the problem statement, historical and theoretical perspectives, significance and relevance of the research. It outlines the methodology, data collection, sampling, analysis, action research and literature review. Key topics that will be covered are chapters 7, 11 and 13 of bankruptcy, including liquidation, repayment plans, debt limits and secured debts. Limitations include relying on truthfulness of respondents and limited demographic data from court records.
Invoicing and Collecting for your Legal Serviceskhecker
Thoughts and musings on how to get paid for your legal services. THIS IS NOT LEGAL ADVICE. I AM NOT YOUR LAWYER. I WILL NOT BE YOUR LAWYER if you read this. Use at your own risk.
The document discusses the legal theory of "deepening insolvency" which allows creditors to sue a company's officers and directors when their actions prolong the insolvency and increase debt. It summarizes a recent court case, In re Lemington Home for the Aged, where the Third Circuit Court of Appeals recognized "deepening insolvency" as a valid legal claim under Pennsylvania law. The court found that the officers and directors of Lemington Home failed to act with reasonable care and diligence, deepening the insolvency, and allowed the creditors' claims against them to proceed to trial. The ruling provides an opportunity for creditors to recover from officers and directors when their actions expand debt and prolong the insolvency
This document provides legal advice and recommendations for contractors facing challenges in a difficult economy. It discusses the importance of (1) having well-written contracts in place for all projects, (2) avoiding one-sided contracts that put contractors at risk, and (3) establishing strong in-house collection procedures to deal with non-payment. The document also covers alternative dispute resolution, the value of good legal counsel, using liens to recover unpaid fees, and being proactive to minimize risks through preventative measures like thorough documentation of all work.
Chapter 10 ten responses to complaint civ lit 2difordham
This document discusses the various responses that can be filed in a civil litigation case, including answers to complaints, replies to counterclaims, motions to dismiss, extensions, affirmative defenses, cross-claims, third-party complaints, and the consequences of failing to respond by the deadline such as a default judgment. It provides details on the proper formatting and content required for each type of response.
General Liability, Umbrella/Excess Coverage, Commercial Auto-Workers’ Compens...Financial Poise
As a business owner, there are a plethora of choices when it comes to insurance. This webinar touches upon all you need to know about General Liability, Umbrella/Excess Coverage, Commercial Auto Insurance, and Workers’ Compensation insurance.
General liability coverage protects the business from third party suits for Property and Bodily Injury claims. The panelists also look at potential product liability or intellectual property exposure that is not covered. Most business owners understand that commercial umbrella is a must, but how do you determine how much is the right amount? The panelists will also examine why Hired/Non-Owned is important when it comes to Commercial Auto coverage.The panelists will also touch upon best practices for managing employees who drive for your business with their own cars.
The panelists will also cover Workers’ Compensation insurance. Topics discussed include managing the costs of the insurance itself as well as the proper management of workers compensation claims. Other topics discussed include codes and classification errors, how to get money back from the insurer, as well as best practices for Independent Contractors.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/general-liability-umbrella-excess-coverage-commercial-auto-workers-compensation-2021/
This document discusses estate planning and the benefits of establishing an estate plan. It notes that an estate plan allows one to preserve and transfer assets to loved ones in the way they wish after death. It also avoids unnecessary taxes, expenses, and delays related to estate administration. The document then lists the typical documents included in an estate plan, such as a living trust, will, powers of attorney, healthcare directives, and deeds. It stresses the importance of establishing a plan now rather than delaying, as unexpected death could negatively impact one's estate and loved ones. Finally, it provides an example of how much money could be saved in probate fees by having a living trust rather than relying solely on a will.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Hot Topics In Class Actions (February 2012)Miranda Lam
This document summarizes sessions from a conference on defending class actions in Canada. It discusses trends in British Columbia class action law, including certification standards becoming easier and the scope of cases expanding to national classes. Pre-certification strategies for defendants are outlined, such as challenging jurisdiction, arbitration agreements, or the nature of the claim. The document also covers class action issues like limitation periods in trust claims, aggregate damages, and post-settlement contribution.
Suit from ixmation against Switch Lighting, October 23, 2014katiefehren
This document is a memorandum opinion and order from a United States District Court case between Ixmation, Inc. and Switch Bulb Company regarding a letter of credit. Ixmation and Switch had entered into an agreement for Ixmation to manufacture a custom automated system, with payments secured by a letter of credit from Wells Fargo. However, before the project was completed, Switch told Ixmation to stop work and later executed an assignment for the benefit of creditors. Ixmation filed for arbitration and a temporary restraining order to prevent the letter of credit from expiring, and the court placed an equitable lien on the funds from the letter of credit to maintain the status quo until arbitration was concluded. Ixmation now seeks
This document provides an executive summary of key bankruptcy concepts for creditors in business insolvencies under Chapter 11. It discusses first day motions, the automatic stay, debtor in possession financing, critical vendor motions, administrative claims including the 20-day priority claim, reclamation rights, setoff/recoupment, and disclosure requirements. The summary focuses on outlining creditor remedies and priority status within Chapter 11 bankruptcy proceedings.
Alternative Structures - PO Financing, Factoring & MCA (Series: Business Borr...Financial Poise
Purchase-order financing (P/O financing) is a type of asset-based loan designed to extend credit to a company that needs cash quickly, to fill a customer order. A company may operate with such a small amount of working capital that it cannot afford to pay the cost of producing a customer’s order. P/O financing enables such a company to not turn away business, by borrowing from a lender using the purchase order itself as collateral to support a loan.
Factoring is one of the oldest forms of business financing. Note that the term is “financing” rather than “loan” because factoring is not actually a loan. In a typical factoring arrangement, the company needing financing makes a sale, delivers the product or service and generates an invoice. The factor (the funding source) then purchases the right to collect on that invoice by agreeing to pay the company in need of financing the amount of the invoice minus a discount.
MCA lending is, in summary, an advance on a company’s sales. Financing through a merchant cash advance (MCA) is used mostly by companies that accept credit and debit cards for most of their sales, typically retailers and restaurants. The concept is this: funder purchases a portion of the company’s future credit card receivables for a discounted lump sum. The MCA funder receives the purchased credit card receivables as they are generated either by taking a percentage of the company’s daily credit card proceeds or by debiting a certain amount of funds from the company’s bank account. Depending on the risk profile of the company, it can be a more expensive form of financing for a business compared to other types of financing.
What these three things have in common is that they are each a type of “alternative lending.” Alternative to what? To the type of loan a company can get from a “regulated” commercial bank. This webinar explains these types of financing arrangements, what to consider before entering into them, and provides some tips on how to negotiate them.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/alternative-structures-po-financing-factoring-mca-2021/
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.
This document discusses common mistakes made with qualified domestic relations orders (QDROs) and how to avoid them. Some key mistakes include failing to discover all employee benefit plans the spouse may be participating in, not preparing the QDRO before the final hearing, and not addressing important issues related to the specific plans in the divorce decree. It is important to obtain documentation about any plans early, incorporate the prepared QDRO into the settlement agreement, and have procedures to ensure the plan administrator qualifies the QDRO. Addressing these issues can prevent problems later on.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
The document discusses emerging trends in directors and officers claims, including foreclosure counterclaims, fee shifting attempts, and claims seeking to have insurance carriers cover repair costs. It notes that many new claims stem from economic hardship and desperation. The document advocates for early analysis of claims, early response, and early conflict resolution through mediation to help manage risks for directors and officers.
Legal Advantage, Ll Cs Latest Legal Research Serviceslegaladvice
This document provides an overview and introduction to the Legal Survival Kit. It discusses the purpose of written agreements in clarifying the terms and obligations of both parties. When conflicts arise over agreements, the document recommends trying to identify what the other party wants and discussing ways to resolve issues without immediately blaming the other side. Lawyers may stir up conflicts for their own benefit, so parties should try to resolve issues themselves through open communication before litigation begins. The overall goal is to provide tools and advice for navigating legal issues while avoiding litigation when possible.
Sentinel Solutions provides asset protection services. The document summarizes key asset protection techniques including insurance, statutory protections like homestead exemptions, and asset placement through entities like trusts. It notes that while asset protection plans can make assets harder for creditors to access, plans cannot be intended to defraud creditors. The summary highlights the main risks that asset protection seeks to mitigate and outlines some basic strategies without endorsing any particular approach.
This document analyzes the legal mechanisms that allow creditors to potentially receive a "double-dip" recovery in bankruptcy through asserting claims against both a guarantor entity and primary obligor entity for the same debt. It describes how a creditor can receive an allowed claim for the full amount owed against each debtor. It also explains how bankruptcy law treats intercompany claims and claims for reimbursement in a way that prevents offsetting of recoveries, allowing the creditor to potentially recover more than the amount owed from multiple entities. However, it notes there are risks like substantive consolidation that could eliminate this result.
Bankruptcy law in the_united_states_rulesRahul Mishra
Bankruptcy law in the United States allows individuals and organizations to legally deal with inability to pay debts. There are two main types of bankruptcy - voluntary, initiated by the debtor, and involuntary, initiated by creditors. The primary purposes of bankruptcy are to give honest debtors a fresh start by discharging most debts, and to repay creditors in an orderly manner. Bankruptcy proceedings involve filing a petition with financial information to establish a bankruptcy estate. There are two main forms - liquidation under Chapter 7, where non-exempt assets are sold to repay creditors, and reorganization under Chapters 11 or 13, where debts are restructured to allow debt repayment over time.
CAN I FILE BANKRUPTCY AGAIN EVEN IF I HAVE FILED BEFOREtonyturnerlaw
Got injured and looking for a personal injury lawyer in Orange Park, Florida? Let Law Office of Tony Turner help you return to the life. We are committed to helping you get the compensation you deserve with our wealth of knowledge and experience. For further details, visit tonyturnerlaw.com/
This document provides an overview of bankruptcy law concepts including eligibility for bankruptcy, how bankruptcy changes leverage for parties, why companies file for bankruptcy, and the automatic stay. It discusses a hypothetical scenario involving a distressed Manhattan office building and examines bankruptcy issues that may arise, such as filing eligibility for limited liability companies. The document also covers factors courts examine for bad faith filings and cases where independent directors or "friendly" involuntary bankruptcy petitions were used.
The document is an outline for a research paper on bankruptcy law submitted for a doctorate program. It includes an abstract, definition of terms, research questions and hypotheses. It discusses the problem statement, historical and theoretical perspectives, significance and relevance of the research. It outlines the methodology, data collection, sampling, analysis, action research and literature review. Key topics that will be covered are chapters 7, 11 and 13 of bankruptcy, including liquidation, repayment plans, debt limits and secured debts. Limitations include relying on truthfulness of respondents and limited demographic data from court records.
Invoicing and Collecting for your Legal Serviceskhecker
Thoughts and musings on how to get paid for your legal services. THIS IS NOT LEGAL ADVICE. I AM NOT YOUR LAWYER. I WILL NOT BE YOUR LAWYER if you read this. Use at your own risk.
The document discusses the legal theory of "deepening insolvency" which allows creditors to sue a company's officers and directors when their actions prolong the insolvency and increase debt. It summarizes a recent court case, In re Lemington Home for the Aged, where the Third Circuit Court of Appeals recognized "deepening insolvency" as a valid legal claim under Pennsylvania law. The court found that the officers and directors of Lemington Home failed to act with reasonable care and diligence, deepening the insolvency, and allowed the creditors' claims against them to proceed to trial. The ruling provides an opportunity for creditors to recover from officers and directors when their actions expand debt and prolong the insolvency
This document provides legal advice and recommendations for contractors facing challenges in a difficult economy. It discusses the importance of (1) having well-written contracts in place for all projects, (2) avoiding one-sided contracts that put contractors at risk, and (3) establishing strong in-house collection procedures to deal with non-payment. The document also covers alternative dispute resolution, the value of good legal counsel, using liens to recover unpaid fees, and being proactive to minimize risks through preventative measures like thorough documentation of all work.
Chapter 10 ten responses to complaint civ lit 2difordham
This document discusses the various responses that can be filed in a civil litigation case, including answers to complaints, replies to counterclaims, motions to dismiss, extensions, affirmative defenses, cross-claims, third-party complaints, and the consequences of failing to respond by the deadline such as a default judgment. It provides details on the proper formatting and content required for each type of response.
General Liability, Umbrella/Excess Coverage, Commercial Auto-Workers’ Compens...Financial Poise
As a business owner, there are a plethora of choices when it comes to insurance. This webinar touches upon all you need to know about General Liability, Umbrella/Excess Coverage, Commercial Auto Insurance, and Workers’ Compensation insurance.
General liability coverage protects the business from third party suits for Property and Bodily Injury claims. The panelists also look at potential product liability or intellectual property exposure that is not covered. Most business owners understand that commercial umbrella is a must, but how do you determine how much is the right amount? The panelists will also examine why Hired/Non-Owned is important when it comes to Commercial Auto coverage.The panelists will also touch upon best practices for managing employees who drive for your business with their own cars.
The panelists will also cover Workers’ Compensation insurance. Topics discussed include managing the costs of the insurance itself as well as the proper management of workers compensation claims. Other topics discussed include codes and classification errors, how to get money back from the insurer, as well as best practices for Independent Contractors.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/general-liability-umbrella-excess-coverage-commercial-auto-workers-compensation-2021/
This document discusses estate planning and the benefits of establishing an estate plan. It notes that an estate plan allows one to preserve and transfer assets to loved ones in the way they wish after death. It also avoids unnecessary taxes, expenses, and delays related to estate administration. The document then lists the typical documents included in an estate plan, such as a living trust, will, powers of attorney, healthcare directives, and deeds. It stresses the importance of establishing a plan now rather than delaying, as unexpected death could negatively impact one's estate and loved ones. Finally, it provides an example of how much money could be saved in probate fees by having a living trust rather than relying solely on a will.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Hot Topics In Class Actions (February 2012)Miranda Lam
This document summarizes sessions from a conference on defending class actions in Canada. It discusses trends in British Columbia class action law, including certification standards becoming easier and the scope of cases expanding to national classes. Pre-certification strategies for defendants are outlined, such as challenging jurisdiction, arbitration agreements, or the nature of the claim. The document also covers class action issues like limitation periods in trust claims, aggregate damages, and post-settlement contribution.
Suit from ixmation against Switch Lighting, October 23, 2014katiefehren
This document is a memorandum opinion and order from a United States District Court case between Ixmation, Inc. and Switch Bulb Company regarding a letter of credit. Ixmation and Switch had entered into an agreement for Ixmation to manufacture a custom automated system, with payments secured by a letter of credit from Wells Fargo. However, before the project was completed, Switch told Ixmation to stop work and later executed an assignment for the benefit of creditors. Ixmation filed for arbitration and a temporary restraining order to prevent the letter of credit from expiring, and the court placed an equitable lien on the funds from the letter of credit to maintain the status quo until arbitration was concluded. Ixmation now seeks
This document provides an executive summary of key bankruptcy concepts for creditors in business insolvencies under Chapter 11. It discusses first day motions, the automatic stay, debtor in possession financing, critical vendor motions, administrative claims including the 20-day priority claim, reclamation rights, setoff/recoupment, and disclosure requirements. The summary focuses on outlining creditor remedies and priority status within Chapter 11 bankruptcy proceedings.
Alternative Structures - PO Financing, Factoring & MCA (Series: Business Borr...Financial Poise
Purchase-order financing (P/O financing) is a type of asset-based loan designed to extend credit to a company that needs cash quickly, to fill a customer order. A company may operate with such a small amount of working capital that it cannot afford to pay the cost of producing a customer’s order. P/O financing enables such a company to not turn away business, by borrowing from a lender using the purchase order itself as collateral to support a loan.
Factoring is one of the oldest forms of business financing. Note that the term is “financing” rather than “loan” because factoring is not actually a loan. In a typical factoring arrangement, the company needing financing makes a sale, delivers the product or service and generates an invoice. The factor (the funding source) then purchases the right to collect on that invoice by agreeing to pay the company in need of financing the amount of the invoice minus a discount.
MCA lending is, in summary, an advance on a company’s sales. Financing through a merchant cash advance (MCA) is used mostly by companies that accept credit and debit cards for most of their sales, typically retailers and restaurants. The concept is this: funder purchases a portion of the company’s future credit card receivables for a discounted lump sum. The MCA funder receives the purchased credit card receivables as they are generated either by taking a percentage of the company’s daily credit card proceeds or by debiting a certain amount of funds from the company’s bank account. Depending on the risk profile of the company, it can be a more expensive form of financing for a business compared to other types of financing.
What these three things have in common is that they are each a type of “alternative lending.” Alternative to what? To the type of loan a company can get from a “regulated” commercial bank. This webinar explains these types of financing arrangements, what to consider before entering into them, and provides some tips on how to negotiate them.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/alternative-structures-po-financing-factoring-mca-2021/
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.
This document discusses common mistakes made with qualified domestic relations orders (QDROs) and how to avoid them. Some key mistakes include failing to discover all employee benefit plans the spouse may be participating in, not preparing the QDRO before the final hearing, and not addressing important issues related to the specific plans in the divorce decree. It is important to obtain documentation about any plans early, incorporate the prepared QDRO into the settlement agreement, and have procedures to ensure the plan administrator qualifies the QDRO. Addressing these issues can prevent problems later on.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
The document discusses emerging trends in directors and officers claims, including foreclosure counterclaims, fee shifting attempts, and claims seeking to have insurance carriers cover repair costs. It notes that many new claims stem from economic hardship and desperation. The document advocates for early analysis of claims, early response, and early conflict resolution through mediation to help manage risks for directors and officers.
This document discusses legal malpractice and how to prevent it. It defines legal malpractice as alleging that a lawyer negligently performed legal services, with examples like missing filing deadlines or failing to advise a client properly. To prevent malpractice, clients should communicate clearly with their lawyer, ask questions, and stay involved. Comments discuss how far lawyer immunity extends - there must be proof of mishandling, not just differences of opinion on case value. Questions address barrister immunity and whether a client can sue their lawyer after settling a case.
The document discusses issues related to bad faith claims in insurance coverage. It covers identifying bad faith torts and damages, negotiation and settlement techniques, current legislation impacting insurance defense, litigating insurance claims, and avoiding bad faith claims. The topics are presented in sections with questions and answers to follow each section.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
Feedback for 5-2 Milestone Two Case Study TwoSubmission Feedbac.docxlmelaine
Feedback for 5-2 Milestone Two: Case Study Two
Submission Feedback
Hi China:
Case Study Two: There are four elements of a contract that make it legally binding. Without all four of these elements the contract will not stand in a court of law. The first element is the offer. The offer has a clearly defined time limit and a clear offer. The next element to a contract is acceptance. The offer must be accepted without conditions. The third element of a contract is intention of legal consequences. The final element of a contract is consideration. This means the offer is accepted and something is done in return.
Some contracts must be in writing. Here Is a great link to a website that will help you reinforce the elements of a contract.
http://jec.unm.edu/education/online-training/contract-law-tutorial/contract-fundamentals-part-2
Prof. McCool
Case Study Two: Quasi-Contract:
A quasi contract can be difficult to understand. A quasi-contract might seem like a contract existed but it really didn't. Courts do not want individuals to benefit when they really don't deserve it. Because a quasi contract is not a true contract, mutual assent is not necessary, and a court may impose an obligation without regard to the intent of the parties. The remedy is usually restitution. Liability is determined on a case-by-case basis. Here is very interesting link to Cornell Law providing a great example of a quasi contract. https://www.law.cornell.edu/wex/example/%5Bfield_short_title-raw%5D_121
Prof. McCool
Case Study Two: Rights and Obligations:
Case Study Two: Landlord/ tenant law is studied for a whole semester in law school! The rights and obligations of both the landlord and tenant depend upon the term of their contract. Such a contract may be verbal or in writing under the standard residential lease agreement. Some facts that may support that Sam is in a breach of that contract are that his use of the premises has created a nuisance for surrounding tenants by using his barking dog invention. Also if Sam and his landlord had a previous agreement that his apartment would be used only as a residence and not as a business location then he would be in breach of his contract and could be evicted
Case Study Two: Grounds to Evict
Sam’s landlord may have grounds to evict because Sam is may be causing a disruption to his fellow neighbors in the apartment building with his barking dog invention. This might be a violation of the covenant to quiet enjoyment. Here is the link that should be very helpful in understanding the right to quiet enjoyment.
https://www.landlordology.com/implied-covenant-quiet-enjoyment/
Prof. McCool
Case Study Two: Defenses:
Defenses are very important if any of these issues come to trial. Some defenses Sam might raise if his landlord tries to evict him include if they had already reached an agreement on him running a business from his apartment. Also when a landlord interferes with a tenant’s use and ...
Feedback for 5-2 Milestone Two Case Study TwoSubmission Feedbacalisondakintxt
Feedback for 5-2 Milestone Two: Case Study Two
Submission Feedback
Hi China:
Case Study Two: There are four elements of a contract that make it legally binding. Without all four of these elements the contract will not stand in a court of law. The first element is the offer. The offer has a clearly defined time limit and a clear offer. The next element to a contract is acceptance. The offer must be accepted without conditions. The third element of a contract is intention of legal consequences. The final element of a contract is consideration. This means the offer is accepted and something is done in return.
Some contracts must be in writing. Here Is a great link to a website that will help you reinforce the elements of a contract.
http://jec.unm.edu/education/online-training/contract-law-tutorial/contract-fundamentals-part-2
Prof. McCool
Case Study Two: Quasi-Contract:
A quasi contract can be difficult to understand. A quasi-contract might seem like a contract existed but it really didn't. Courts do not want individuals to benefit when they really don't deserve it. Because a quasi contract is not a true contract, mutual assent is not necessary, and a court may impose an obligation without regard to the intent of the parties. The remedy is usually restitution. Liability is determined on a case-by-case basis. Here is very interesting link to Cornell Law providing a great example of a quasi contract. https://www.law.cornell.edu/wex/example/%5Bfield_short_title-raw%5D_121
Prof. McCool
Case Study Two: Rights and Obligations:
Case Study Two: Landlord/ tenant law is studied for a whole semester in law school! The rights and obligations of both the landlord and tenant depend upon the term of their contract. Such a contract may be verbal or in writing under the standard residential lease agreement. Some facts that may support that Sam is in a breach of that contract are that his use of the premises has created a nuisance for surrounding tenants by using his barking dog invention. Also if Sam and his landlord had a previous agreement that his apartment would be used only as a residence and not as a business location then he would be in breach of his contract and could be evicted
Case Study Two: Grounds to Evict
Sam’s landlord may have grounds to evict because Sam is may be causing a disruption to his fellow neighbors in the apartment building with his barking dog invention. This might be a violation of the covenant to quiet enjoyment. Here is the link that should be very helpful in understanding the right to quiet enjoyment.
https://www.landlordology.com/implied-covenant-quiet-enjoyment/
Prof. McCool
Case Study Two: Defenses:
Defenses are very important if any of these issues come to trial. Some defenses Sam might raise if his landlord tries to evict him include if they had already reached an agreement on him running a business from his apartment. Also when a landlord interferes with a tenant’s use and ...
ACTEC Journal - Practical Guidance For Trustee Risk Managementlwolven
This document discusses the increasing risks and responsibilities faced by trustees. It notes that fiduciary litigation is on the rise as beneficiaries more frequently seek legal recourse for perceived wrongs. Even attorneys well-versed in fiduciary law are sometimes hesitant to take on trustee roles given the liability risks. The document outlines the duties and standards required of trustees, including acting with ordinary prudence. It also discusses scenarios where trustees can face liability, such as for environmental contamination on trust property or failing to identify imprudent investments.
An examination under oath (EUO) is a formal proceeding where an insured is questioned under oath by an insurance company's representative about the details of an insurance claim. The purpose is to allow the insurance company to obtain truthful information needed to evaluate the claim. During an EUO, the insured is questioned orally while under oath and their responses are recorded by a court reporter. An insured's failure to fully cooperate with an EUO request can result in the denial of their insurance claim. The EUO allows insurance companies to investigate fraud, clarify insurable interests and damages, and determine if any policy defenses apply.
Lawyers often tell their clients that while they must prepare as if every case will go to trial, more than 90% of cases are resolved before trial. If a settlement is not reached, the resolution typically comes through the court ruling on a dispositive motion. This episode begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal standard, and how that standard is put into practice. We then discuss summary judgment motions. That discussion includes everything from making a summary judgment record to brief writing, to making a cross-motion for summary judgment. This webinar shines a light on what happens to the great percentage of cases that don’t make it to trial.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Da...NationalUnderwriter
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Damages in Bad Faith Case. (from FC&S Legal: The Insurance Coverage Law Information Center)
Recently, Division One of the Court of Appeals of Washington State affirmed a jury verdict awarding $13 million in damages to a passenger injured in a car accident, finding that the $4.15 million agreed amount of the covenant
judgment in the insurance bad faith case sets a floor, not a ceiling, on the damages a jury can award.
In Miller v. Kenny and Safeco Ins. Co.,[1] the Court of Appeals ruled on several additional issues on appeal including whether evidence of an insurance company’s loss reserves is properly admissible at trial.
Single Asset Real Estate Cases (Series: Fairness Issues in Real Estate-Based ...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization.
But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parties have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2021/
Assignment #3 Grading Rubric Name:
Highly Competent
Competent
Minimally Competent
Not Competent
Organization (8 points)
Careful organization that enhances presentation; definite/appropriate intro and closure segments
Logical organization; somewhat effective intro and closure segments
Some organization; lapses in focus and/or coherence; attempt at introduction and closure segments
Random and/or weak organization; no attempt at intro and closure segments
References/APA Format
(8 points)
At least 8 credible references which are cited using APA format in text and on the reference page
6 or 7 credible references; minor APA errors in text and/or on the reference page
Less than 5 credible references; some APA format errors in text and/or on the reference page
Lack of reference or reference page, numerous APA format errors in text and/or on the reference page
Mechanics (8 points)
Virtually no errors in mechanics (spelling, grammar and/or sentence structure)
Few errors in mechanics relative to length and complexity; fewer than 6 pages in length
Some errors in mechanics but not enough to interfere with communication; fewer than 5 pages in length
Errors in mechanics that affect communication
Arguments (16 points)
At least 3 well-formed arguments representing stance on debate
Fewer than 3 well-formed arguments, but stance on debate is evident
Arguments lacked focus or organization; some question as to stance on debate
Very little development in arguments and/or stance not evident
Total /40 points
Comments
ACC 150
THE LEGAL ENVIRONMENT OF BUSINESS
With Doreen Smith, Esquire
Chapter 32
*
CONSUMER PROTECTION LAWSConsumerAny buyer afforded special protections by statute or regulationWho Can Be Liable?Persons or enterprises that regularly enter into the type of transaction that the injured consumer was involved.
*
GENERAL PRINCIPLES
Who can sue under consumer protection laws? Lawsuits by the governmentLawsuits by consumers.
What Types of Damages are Available?Replacement or Refund. Invalidation of Consumer’s Contract.
Compensatory damages, punitive damages.
*
AREAS OF CONSUMER PROTECTION
Advertising (Deceptive Ads)Federal Trade Commission (FTC)Corrective Advertising: may be required
Labeling.
Labeling that exaggerates or misleads a consumer is not allowed.
*
AREAS OF CONSUMER PROTECTION
Selling Methods.Home-Solicited Sales: over $25 may be set aside within 3 business days (rescission)Telemarketing Fraud. National Do Not Call registryAllows consumers to opt out of telemarketing phone calls.
*
AREAS OF CONSUMER PROTECTIONThe Consumer Contract.
Form of Contract (ex. font size cannot be too small)
Two-Sided Contract (need notice that info. is on other side of page).
Disclosures requirements for many transactions.
*
UNCONSCIONABLE CONTRACTS
Uniform Commercial Code (UCC)
The UCC provides laws for certain contracts
Unconscionability
Protection of consumer when a contract term is oppressive to th.
This newsletter discusses two cases related to insurance coverage. The first case involved a wrongful death claim where the insurer settled with one heir but was later sued by other unknown heirs. The court found the insurer was not protected by settling pre-litigation. Insurers should use genealogists to identify all heirs or have claimants file a lawsuit to receive protection. The second article summarizes various cyber risk insurance policies available to businesses to cover losses from hacking or security breaches. It notes various state and federal regulations regarding notification of privacy breaches.
As we previously projected in our recent article/blog posting, MEHTA V. DEPT. OF STATE: WILL PLAINTIFFS BE SUCCESSFUL IN OBTAINING THE INJUNCTIVE RELIEF IN THE CLASS ACTION COMPLAINT?, the United States District Court for the Western District of Washington at Seattle on October 7, 2015, denied the Motion for Injunctive Relief (Temporary Restraining Order) by a group of high-skilled immigrants that would have forced the Department of Homeland Security (“DHS”) to accept Adjustment of Status Applications (“AOS”) as per the “Filing Date” chart contained in the originally issued October 2015 Visa Bulletin by the Department of State (“DOS”).
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
A common situation encountered by insolvency practitioners is a matter involving an LLC that exists solely to hold the principal asset and "the night before” the property is scheduled to be sold at a foreclosure auction the debtor elects to file bankruptcy to invoke the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The bankruptcy code contemplates this and therefore has a section devoted to dealing with this specific kind of bankruptcy known as a Single Asset Real Estate (“SARE”) case.
This webinar presents practice pointers on how to use the ABA Model Rules as a guide to navigating ethical issues in Single Asset Real Estate or SARE cases. Model Rules addressed include those that address a conflict of interest towards current clients (Rule 1.7); those that speak to meritorious claims and contentions (Rule 3.1); and dealing with an unrepresented person (Rule 4.3).
Part of the webinar series: Ethical Issues in Real Estate Based Bankruptcies 2022
See more at https://www.financialpoise.com/webinars/
Stewart Strawbridge has been investing in commercial real estate over the last 8 years. This article explores the 10 biggest mistakes in real estate. These 10 scenarios should be considered before you invest in any real estate deal.
This proposal form requests information about a commercial litigation insurance application in Scotland. It requests details about the applicant and their legal representatives, estimates of expenses and the coverage sought, information about the opponent and their representatives, and details about the claim such as the nature of the dispute, evidence, damages, defenses, settlement prospects, and funding arrangements. The applicant and their solicitor must complete the form and verify the information provided.
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Karyn Branco CAU Article Trial Ready Defense
1. Trial Ready Defense
Recognizing the trigger of claims and how to handle
same to prepare the early stages of the defense
May 8, 2009
Karyn Kennedy Branco, Esq.
Kennedy, Wronko, Kennedy
Suie 104
1330 Laurel Avenue
Sea Girt, New Jersey 08750
732.282.9100 | office
732.612.1314 | eFax
KKennedyBranco@optonline.net
Karyn Kennedy Branco, Esq. May 8, 2009 1
2. I. What is a claim?
Merriam-Webster on line dictionary defines a claim as
follows:
Main Entry: 2claim
Function: noun
1 : a demand for something due or believed to be due
<insurance claim>
2 a : a right to something; specifically : a title to a debt,
privilege, or other thing in the possession of another b : an
assertion open to challenge <a claim of authenticity>
3 : something that is claimed; especially : a tract of land staked
out
Basically, the first part of the definition is what we need
to remember, a claim is a “demand”.
Insurance policies on the other hand, may define “claim”
as follows:
“Claim” means:
1) a written demand for monetary damages;
2) a civil proceeding commenced by the service of a
complaint or similar pleading;
3. 3) a criminal proceeding commenced by a return of an
indictment; or
4) a formal administrative or regulatory proceeding
commenced by the filing of a notice of charges,
formal investigative order or similar document,
against an Insured for a Wrongful Act, including an
appeal therefrom.”
See: www.kdisonline.com/products-directors.htm
The types of claims normally triggering directors and
officers claims fall under the term: “breach of fiduciary
duty”. Breach of fiduciary duty takes on many forms.
The following is illustrative of the types of complaints
which can be seen as breach of fiduciary duty claims:
1. Mismanagement: i.e. failure to properly budget,
improper expenditure of Association monies
2. Violation of Open Meetings Act: i.e. failure to
approve contracts in open session; failure to take
other forms of votes in open session
3. Failure to provide Alternative Dispute Forum
4. 4. Alleged violation of constitutional rights: i.e. right
to free speech, for instance, prohibition on the
placement of signs
5. Failure to make repairs
6. Failure to procure appropriate insurance coverage
7. Discrimination claims
The list could become exhaustive, but the main theme
is allegations of “wrongful acts”. Wrongful acts
surround decision-making or the failure to make
decisions.
II. How does a claim start?
A claim normally starts with a “problem”, an “issue”, a
“disagreement”. Unfortunately claims arise where there
is a failure to communicate. A failure to communicate
does not necessarily mean management and the Board
has not responded, it could in fact mean that the owner
simply cannot hear or understand what is being said.
When responding to issues of owners, it is helpful to
provide as much information supporting a decision being
made as possible. For instance, pretend the Board has the
authority to grant or deny applications to install patios.
5. The Board has to date approved all ten submitted.
Application number eleven comes in and the Board
denies it without informing the owner why. This is the
beginning of a lack of communication and a potential
claim. The Board, as well as management, must be able
to articulate why it is making certain decisions. The
example above, denial of the patio application, should be
able to be easily supported, i.e. too large, regulations call
for 12’ by 10’; pink flamingo concrete prohibited, etc.
It appears simple to remember that reasons must be
articulated, many of you are most likely saying, “of
course,” as you read this, but because of the demands
placed on managers and volunteer board members in this
industry, it is often easy to make a decision and forget to
fully inform the person as to why it is made.
When the Board is making a decision, it is important that
they can articulate and itemize why a decision is being
made. This information should then be reduced to
writing in the form of minutes if within a meeting or
other confirming written memoranda. Months or years
later, a judge will sit and ask, “what was the basis of the
board’s decision?” That will be the most repeated
question throughout the course of the litigation.
6. III. How can you attempt to prevent a
claim?
The best you can do is “attempt” to prevent a claim. You
cannot stop a disgruntled owner from filing a claim, from
commencing litigation, from yelling at board meetings or
any other such activity. Rather, you can implement
policies, practices and procedures in an effort to prevent
claims.
1. Communication with owners, board members,
general counsel, contractors, etc.
a. Verbal
b. Written
2. Organization: identifying tracking databases:
cover your bases
Written records evidencing what has been
requested by an owner and how management
and the Board has responded are extremely
valuable tools. Why? Because most of us do
not have hypermnesia.
7. hypermnesia
hye-perm-NEE-zhee-uh noun
: abnormally vivid or complete memory or
recall of the past
Example sentence:
Julie's hypermnesia enabled her to
perfectly recall any page in her textbook
for the test.
Merrian-Webster Online Dictionary, 2004.
Written records may have the ability to stop a claim in its
tracks. For example, unit owner writes to management
stating that the Board has breached its fiduciary duty for
the failure to solicit bids and vote on contracts at an open
meeting. If such actions, the solicitation of bids and
recordation of the vote(s), are reduced to writing, the
owner can then be presented with this information in an
attempt to stop the issue, which could ripen into a claim.
What kind of documents would these be? Solicitation
letters to contractors, responses, recordation of lack of
responses to solicitation, manager report with information
attached, board packet with information attached, board
minutes and/or agendas for meetings. Granted, all of this
information will not always be given over to the owner.
Some of the documents, i.e. manager report, board
8. packet, executive or workshop session minutes, may
contain confidential or privileged information.
The first challenge may be compiling the information
needed. How documents are kept is within the control of
the manager.
IV. What do you do with a claim?
Once you have identified what appears to be a claim,
contact your insurance agent and general counsel to the
Association.
Individual policies will require that notice of claims be
submitted within a particular time frame and failure to
timely give notice will prejudice the insured’s rights
under the policy to defense and/or indemnification.
It is very important to know where the insurance policy is
at all times. Maintain a file for the Association which
contains the insurance policies. Spend the time to speak
with the agent and find out what is covered under the
policy and how claims can be identified and how and
when notice should be given.
9. Often times when a claim is presented, you will be
contacted by an insurance adjuster for the insurance
carrier and/or an investigation firm on behalf of the
carrier. You will be asked for information and
documents. Timing is everything. The quicker you can
provide the information and respond, the sooner the
insurance carrier can advise you as to how the claim will
proceed and why. (See discussion below on “extra
work”).
V. What is a conflict?
A management company is the additional insured on the
Association’s policy. Litigation may be filed by a
Plaintiff wherein the Plaintiff names the Association,
management company and employees of the Association.
Ordinarily, the insurance carrier will assign one law firm
to defend the defendants interests. The reason for this is
that all parties normally worked together regarding the
subject matter of the complaint and are on the “same
team”. Sometimes though the team has been disbanded.
Employees may have been fired. The management
company and the Association have terminated their
10. relationship on bad terms. In situations like these, the
agent and the insurance carrier should be alerted that
there is a potential that some of the defendants may have
claims against one another, what we call in the legal
field, “potential conflicts”.
VI. When a “Complaint” is received:
When the Complaint is received, the manager must alert
the Board, general counsel and the insurance agent. The
Complaint must be answered by an attorney within a
specific period of time. If the claims within the
Complaint are covered by the insurance policy, the
carrier must be notified right away so it can preserve its
rights, assign counsel and begin to defend the litigation.
VII. What are affirmative claims?
Affirmative claims are claims that the Association may
have against the Plaintiff, i.e. a counterclaim for
damages, or claims against a third party. The Association
policy is a policy to defend and sometimes indemnify,
not to prosecute affirmative claims. Consequently, if
management or the board is aware of these types of
11. claims, they must alert general counsel to determine if
claims will be prosecuted in the same action. A failure to
file and litigate these claims during the course of defense
often means you will lose the opportunity to litigate down
the road.
VIII. How do you interact with defense
counsel assigned by the insurance
carrier? Friend or foe?
Defense counsel is your friend. I know, you are saying,
“of course you would say that!”
Defense counsel is assigned by the insurance carrier to
defend the Association and management. The counsel’s
goal is to obtain all documentation and information
which could be used to evaluate the defense. Evaluation
of the defense means the attorney will be attempting to
plan whether motions to dismiss claims can be filed,
whether the Plaintiff has sued the right parties, whether
the Plaintiff has any basis for the claims presented,
whether the case should be mediated, settled or proceed
to trial.
Without your assistance, and the assistance of the board,
defense counsel works in a vacuum without recourse to
12. historical data and without the ability to comprehend the
potential defense arguments which can be used on behalf
of the Association and management.
VIIII. Dealing with “extra” work, the
“discovery” and “defense
evaluation” process:
A. Homeowner file:
1. Some but not all documents that will be
necessary to evaluate the claim or defense
of the litigation will be within the
homeowner file. These documents
obviously will tend to be copies of direct
correspondence from the owner to
management or the Board. Perhaps the
physical folder may also contain
handwritten notes.
B. Subject matter:
1. file tracking: retrieval of physical
documents within files
2. computer databases: accessing
information contained within computer
files, inclusive of e-mail communication,
13. examples of the types of subject matter
documents/files necessary, are as follows:
i. work logs:
work logs show what was requested to be
done; when it was requested to be done; if
work was completed; if corrective work or
follow up work was deemed necessary and
should detail persons involved with
requests, the work performed and approval
of work
ii. complaint logs:
Plaintiffs tend to allege that “others” have
made similar complaints. If a complaint log
is in place, it is easy for management to
track complaints and to refute general
allegations by Plaintiffs that others have
complained of the same type of incident or
conduct or lack of action. Further, if the
complaint log is kept in regular business
order, Plaintiffs will have difficulty
establishing that management somehow
failed to make note of a complaint.
14. iii. telephone logs:
Why? Because if you do not track or record
telephone messages, returned calls,
voicemail messages and conversations,
Plaintiffs will say they have called when
they have not. What proof does a manager
have against a person claiming to have
called? Telephone logs kept in good order.
iv. invoices:
Easy. This is proof that work is claimed to
be performed. Payment is proof that work
was accepted and deemed satisfactorily
performed. If there are objections to the
work performed, same should be noted on
the invoice and/or on corresponding letters
sent to the contractor disputing the amount
invoiced or the work claimed to be
completed.
v. proposals:
Proposals are just that, proposals for work
to be performed, an invitation to do
business, not the agreement itself.
Proposals should never be used as
15. “contracts”. Why? A proposal is written
by the contractor and will not necessarily
reflect the Association’s needs or protect
the Association in the event the work is not
performed, a dispute ensues, litigation is
filed, etc.
vi. check register/cancelled checks:
proof of payment.
vii. budget:
A budget can demonstrate how much
money the Association has allocated for
services. While this may seem like a “no-
brainer” it is again a concrete demonstration
of acts taken by management and the board
in furtherance of the fiduciary duty to
administer and govern the association.
viii. minutes:
Need I explain this? It tells the story of
what the Board decided and why. A
particularly troublesome aspect of directors
and officers’ claims is that the Plaintiff is
entitled to obtain proof of the “thinking” of
the Board. What does this mean? It means
16. that if a Plaintiff challenges the action of the
Board, the Board has the opportunity in
most circumstances for two types of
defenses: 1. Reasonableness; and 2. the
Business Judgment Rule. Both defenses
require proof that the Board has taken
action in its fiduciary capacity and has
evaluated the reasons for the decisions
made. The minutes demonstrate the reasons
that Boards take certain actions and not
others, again, the minutes “tell the story”.
ix. board packets:
Board packets demonstrate what issues are
presented to the Board, when they are
presented, action requested or needed to be
taken, etc. Board packets fill in the history.
manager reports:
x.
manager reports detail the issues presented
to managers, the information conveyed to
Board members, the action requested to be
taken, etc.
xi. correspondence
17. Simply put: correspondence is proof of
communication.
xii. e-mail:
“Warning, warning”.
If any of you have ever watched the
television program, “Lost in Space”, you
can hear the robot’s voice saying, “Danger,
danger, Will Robinson.” And then you may
recall the boy’s face, caught in the
headlights. Imagine this scene and imagine
that the boy was innocently exploring space
when the robot appeared out of nowhere to
warn of an impending danger. Imagine you
are that boy sending e-mails and defense
counsel is that robot. At that point, it may
be too late. Actions may have been taken or
unnecessary communications written in e-
mail which will add fuel to the fire when
handling a claim and eventually defending
that claim in court.
E-mails are discoverable documents. If the
e-mail does not include direct
communication with counsel, or at a
minimum, include counsel as a “cc”, the e-
18. mails are not privileged Association
communication, absent some exceptional
circumstances. Just as the mere presence
of counsel at an executive session will not
automatically render all communications or
minutes of that executive session privileged,
a “cc” to counsel on e-mails will not
automatically render such communications
privileged.
What does this mean? The other side is
entitled to read your e-mails, even if they
have been deleted. A subpoena can be
issued or an order of the Court to retrieve
deleted e-mails and produce such e-mails to
your adversary.
When counsel asks you to provide all
discoverable and/or relevant documents,
counsel is asking you for e-mail
communication, the good, the bad and the
ugly.
19. It’s easy to type an e-mail as you deal with
a stressful issue on the phone, as co-workers
are clamoring for your attention or as board
members are demanding an immediate
response, but just because the means of
conveyance are practically instantaneous, it
does not mean your thought process and
evaluation of the issues are. Problem
solving and conducting business takes time,
regardless of the advent of e-mail.
Managers, boards and attorneys must stop
and think before they type an e-mail. Ask
yourself a simple question before you type:
If this e-mail were to be printed in the New
York Times with my photograph, name,
home address and telephone number
identified, would I still type the same
words?
xiii. insurance certificates:
“Additional Insured”
“Additional Insured”
“Additional Insured”
20. No, that is not a series of typos above, it is a
silly reminder that the Association must be
listed as an additional insured on
Contractor’s certificates of insurance.
X. Conclusion:
Once litigation has ensued and you have provided
documents and information to defense counsel, you may
feel that you have done enough and that you will allow
defense counsel to now chart his or her own course.
Defense of litigation requires ongoing participation.
Counsel will send you notices to appear for depositions,
arbitration, and possibly trial. Correspondence received
must be distributed to the Board and general counsel.
Discovery documents and deposition transcripts produced
by the Plaintiff must be reviewed so counsel can be
alerted as to rebuttle information in the form of
documents or potential witness testimony. Since the
Board and manager are most familiar with the
community, their review of what is produced during
litigation, either in documents or testimony, is invaluable
to shaping the defense of the claim.