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Court Bond Definitions

Attorney-in-fact

From Wikipedia, the free encyclopedia

As one kind of agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. If the attorney-in-fact is being paid to act for the principal, the contract is a separate matter from the power of attorney itself, so if that contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people.
The term "attorney-in-fact" should not be confused with the term "attorney at law." An attorney-at-law is a lawyer -- someone licensed to practice law in a particular jurisdiction.

Attorney in Fact in the case of Unincorporated Reciprocal Inter-insurance Exchanges
In the context of the unincorporated reciprocal inter-insurance exchange [URIE] the AIF is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with him, and then uses those funds to pay insurance claims. When all the claims are paid, the AIF then returns the leftover funds to the subscribers.

Abuses of Attorney-In-Fact
The powers granted to an attorney-in-fact are sometimes abused, in disregard of the attorney's fiduciary responsibility. Some large lending institutions insert appointment of attorney-in-fact paragraphs in mortgages and Home Equity Line of Credit contracts. For example:

"If Borrower fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Borrower and at Borrower's expense. For such purposes, Borrower hereby irrevocably appoints Lender as Borrower's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all things as may be necessary or desirable, in Lender's sole opinion, to complete the things referred to in the preceding paragraph."

The "things referred to in the preceding paragraph" may include "other documents" that increase interest rates in a so-called fixed rate mortgage, and sale of a house without permission when the lender's lawyer forges the owner's name on a deed.

Such appointment of attorney-in-fact is equivalent to confession of judgment

Basis of Injunctions

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From Wikipedia, the free encyclopedia

At the core of injunctive relief is recognition that money damages cannot solve all problems. An injunction may be permanent or it may be temporary. A preliminary injunction is a provisional remedy granted to restrain activity on a temporary basis until the court can make a final decision after trial. It is usually necessary to prove the high likelihood of success upon the merits of one's case and a likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise the party may have to wait for trial to obtain a permanent injunction.

Temporary restraints

From Wikipedia, the free encyclopedia

In United States law, a temporary restraining order (or TRO) may be issued on a short-term basis. TROs usually last for 10 days, then automatically expire. During that time, the court decides whether to issue a preliminary injunction. Thus, the relationship between a TRO and a preliminary injunction is the same as the relationship between a preliminary injunction and a permanent injunction. In very rare cases a TRO may be granted ex parte, i.e. without informing the party to whom the TRO is directed in advance. Usually such ex parte orders are of a short term and are to prevent one's adversary from having notice of one's intentions. Such notice may prohibit the eventual object of the application for an injunction from doing something that would make the court's granting of an injunction fruitless, such as wasting or hiding assets as often occurs in dissolution of marriage or in the disclosing of a trade secret that had been the subject of a non-disclosure agreement.

Rationale behind injunctions

From Wikipedia, the free encyclopedia

This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land. The ability of the landowner to use the courts to sue the trespasser for injunctive relief is often the only practical way to end the trespass (the government may or may not bring criminal trespass charges at the landowner's urging; the civil power is in the landowner's own hands). Once the order is secured, the trespasser violates it at his own peril, risking fines and imprisonment for contempt of court.

Injunctions further insite

From Wikipedia, the free encyclopedia

Courts may also issue mandatory injunctions, also called mandatory orders, i.e. equitable relief to compel a person to do a specific act or acts or follow a course of conduct; though in some jurisdictions courts will not issue mandatory orders that require judicial oversight to ensure compliance with the judge's order.

Receiver

From Wikipedia, the free encyclopedia

Receiver (legal), a person that is appointed as a custodian of other people's property by a court of law or a creditor of the owner, pending a lawsuit or bankruptcy –

Administrative Receivership is a procedure under English law whereby a creditor can enforce security against a company's assets in an effort to obtain repayment of the secured debt. It used to be the most popular method of enforcement by secured creditors, but recent legislative reform has reduced its significance considerably.

Complaint

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From Wikipedia, the free encyclopedia

In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, or your leg being amputated, etc.

In the common law, a complaint is a formal legal document that sets out the basic facts and legal reasons (see: cause of action) that the filing party (the plaintiffs) believes are sufficient to support a claim against another person, persons, entity or entities (the defendants) that entitles the plaintiff(s) to a remedy (either money damages or injunctive relief). For sample complaints, click here. See also petition and pleading.

Damages

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From Wikipedia, the free encyclopedia

In law, damages refers either to the harm suffered by a claimant in a civil action, or to the money paid or awarded to the plaintiff in compensation for such harm.

Generally, there are three kinds of damages: special damages, general damages, and punitive damages. Special damages are the enumerable or quantifiable monetary costs or losses suffered by the plaintiff, or the compensation therefore. For example, medical costs, repair or replacement of damaged property, lost wages, lost earning potential, loss of business, loss of irreplaceable items, loss of support, etc. General damages are items of harm or loss suffered, for which only a subjective value may be attached. Examples of this include personal injury, physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc.

Compensatory damages
Compensatory damages are damages awarded for civil cases. They are awarded to the successful party, in the case of the plaintiff, as a compensation for the pain undergone, and in the case of the defendant, for legal services and all hardships undergone during the trial. This is the rule in most countries other than the United States. Compensatory damages may be either general or specific, and either direct or consequential.

In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial. See American rule.

Statutory damages
Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award.

Punitive damages
Main article: Punitive damages
Generally, punitive damages, which are termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious, and are over and above the amount of compensatory damages. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

Nominal damages
On the other hand, nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2.

Economic damages
Economic damages in civil litigation are computed as the financial loss suffered by a person due to the wrongful actions of another person. The wrongful action may be either accidental, such as an auto accident, or deliberate, such as wrongful termination or harassment in employment situations. In a court of law, it is often useful for the lawyers for both the plaintiff and the defendant to employ economists to compute the value of the loss. The economists will not evaluate whether the action was wrongful, only how much money is required to return the plaintiff to the fiscal position he or she was in prior to the loss. In such a case, it is incumbent on both economists to fully disclose their methodology and how they reached their conclusions. The finder of fact will choose the result which is most in accord with the preponderance of the evidence, including any testimony given by the economist(s).

Injunction

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From Wikipedia, the free encyclopedia

An injunction is an equitable remedy in the form of a court order that either prohibits or compels ("restrains" or "enjoins") a party from continuing a particular activity. The party that fails to adhere to the injunction faces civil or criminal contempt of court and may have to pay damages or sanctions for failing to follow the court's order. A restraining order is a type of injunction.

Judgement

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From Wikipedia, the free encyclopedia

A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. At the same time the court may also make a range of court orders, such as imposing a sentence upon a guilty defendant in a criminal matter, or providing a remedy for the plaintiff in a civil matter.

In the United States, under the rules of civil procedure governing practice in federal courts and most state courts, the entry of judgment is the final order entered by the court in the case, leaving no further action to be taken by the court with respect to the issues contested by the parties to the lawsuit. With certain exceptions, only a final judgment is subject to appeal.

Lien Waivers

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From Wikipedia, the free encyclopedia

In the Mechanics lien process a lien waiver is a document from a contractor, subcontractor, materialmen, equipment lessor or other party to the construction project stating they they have received payment and waive any future lien rights to the property. There are typically four types of lien waivers:

Conditional Waiver on Progress Payment - The safest waiver for claimants, this waiver generally specifies that if they have indeed been paid to date (and that includes no return or stopped payment checks) the waiver is an effective proof against any lien claim on the property.

Unconditional Waiver on Progress Payment - This waiver releases all claimant rights through a specific date unconditionally (and that includes no return or stopped payment checks).

Conditional Waiver on Final Payment - This waiver releases all claimant rights to file a Mechanics lien if they have indeed been paid to date (and that includes no return or stopped payment checks).

Unconditional Final Waiver Final Payment - The safest waiver for owners, this waiver generally releases all rights of the claimant to place a Mechanics lien on the owners property unconditionally. It is immaterial if the payment check has been returned or stopped payment. Claimants should issue this type of release only when they are positive their work is done and the payment has clear their bank. Owners should demand this release when they are paid in full.

In the United States some states only use a Conditional Waiver on Progress Payment and a Unconditional Waiver on Final Payment.
The mechanics lien process can be of great value to contractors, subcontractors, materialmen and other related parties to a construction work in enforcing their claims, if done according to the laws of the various states, or the federal government. These parties are entitled to be paid for their material or labor contributions to the improve of real property. Most forms for the process can be obtained from local office supply stores, and a few computer programs exist to handle the process on a nationwide basis.

Lis Pendens

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From Wikipedia, the free encyclopedia

Lis pendens is a public notice of litigation which has been recorded in the same location where the title of real property has been recorded. This notice secures a plaintiff's claim on the property so that the sale, mortgage, or encumbrance of the property will not diminish plaintiff's rights to the property, should plaintiff prevail in its case. In some jurisdictions, when it is properly recorded, Lis pendens is considered constructive notice to the other litigants or other unrecorded or subordinate lien holders.

Notice Pleading

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From Wikipedia, the free encyclopedia

Notice pleading is the dominant regime in the United States today. In notice pleading, the plaintiff is required to state in their initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.

Pleadings

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From Wikipedia, the free encyclopedia
In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint and an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-complaint as well as bringing other parties into a case by the process of impleader.

Power of Attorney

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From Wikipedia, the free encyclopedia

A power of attorney or letter of attorney in common law systems or mandate in civil law systems is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the "principal" or "grantor (of the power)", and the one authorized to act is the "agent" or "attorney-in-fact" [AIF]. The attorney-in-fact acts "in the principal's name" -- for example, by signing the principal's name to documents.

Oral and written powers of attorney
The power of attorney (often called "POA" for short) may be verbal—such as asking someone else to sign your name on a cheque because your arm is broken—or may be in writing. Many institutions, such as hospitals, banks and, in the United States, the Internal Revenue Service, require a power of attorney to be in writing before they will honor it, and they usually want to keep an original for their records.

The equal dignity rule
The "equal dignity rule" is a principle of law that requires a document authorizing someone representing someone else to have been appointed with the same formality as required for the act the representative is going to perform, and it applies to powers of attorney. This means, for example, that if you give someone your power of attorney to sign the papers to sell your house, and the law requires that signature on the deed to be notarized, then your power of attorney authorizing that attorney in fact to sign the deed must be notarized, too.

Kinds of powers of attorney
A power of attorney may be "special" or "limited" to one specified act or type of act, or it may be "general," and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.) Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called a "durable power of attorney". In some jurisdictions such a durable power of attorney can also function as a "living will", which can be used to appoint someone to make health-care decisions for the grantor, up to and including "pulling the plug" on machines keeping them clinically alive. New York State has enacted a "Health Care Proxy" law that requires a separate document be prepared appointing one as your health care agent.

In some U.S. states and other jurisdictions it is possible to enact a springing power of attorney; i.e., a power that only takes effect after incapacitation of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but, unlike a durable power, cannot be invoked before the incapacity. This is often used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes him unable to act, while retaining the power for himself before the incapacity occurs.

Unless the power of attorney has been made "irrevocable" (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney in fact it is revoked; however, if the principal does not inform third parties and it is reasonable that the third parties could rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.
Many standardized forms are available (usually for free) for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. In some states statutory power of attorney forms are available as some individuals have used powers of attorney to unscrupulously waste the assets of vulnerable individuals such as the elderly (see elder abuse).

Remedy

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Wiktionary, the free dictionary.

Remedy may refer to:
In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order.
It has been used as a synonym for pharmaceutical medicine, although that usage of the term is somewhat outdated. It is sometimes used in this sense in the context of medicinal herbs –see herbal remedy.