Claiming Bankruptcy

Bankruptcy is a legal proceeding that occurs when an individual or business cannot repay debts, and there is not another option to satisfy the collection effort.  Although this process may devastate an individual or business’s credit for several years, it will lessen the immediate embarrassments and stresses of bill collection and unpaid debts.

Bankruptcy may become a process that is tedious and difficult to overcome.  There are numerous state regulations, exemptions and forms that must be completed to fulfill a lawful statement of bankruptcy.  A lawyer can not only assist in completing the necessary paperwork, but can also help choose which Chapter of bankruptcy best fits your financial situation.

There are four types of bankruptcy under law:

Chapter 7 – This type is referred to as ‘liquidation’ or ‘straight’ bankruptcy.  In Chapter 7, the individual in debt is to liquidate all properties that exceed exemption limits, to pay off collecting creditors.  With straight bankruptcy, a petition to the court is filed to eliminate all debts, in exchange for your property.  Chapter 7 can only be filed six years after the date of the previous filing.

Chapter 11 – This type of bankruptcy is mainly used by businesses.  Very few individuals file Chapter 11 bankruptcy.  Although, if a debtor has an extremely large amount of debt, a lawyer may refer this option.

Chapter 12 – This chapter of bankruptcy is reserved only for family farmers.

Chapter 13 – Chapter 13 bankruptcy requires a debtor to create a payment plan for which to repay collectors of unpaid debts.  With this, collectors will receive their payments from substantial withdraws from a current income.  This chapter will allow an individual to keep property such as a house or vehicle, which may be lost in other bankruptcy filings.  The court system must accept your payment plan, for the filing to take place.  Chapter 13 bankruptcies can be filed at any time, without a waiting period between filings.

Any of these filings can take between seven to ten years to clear from your credit record.  It is important to attempt to rebuild your credit score, while these claimant years take place.  Beware of fraudulent advertisements for an easy rebuild of credit.  There is not a simple fix to starting a fresh credit report, although with time, your credit may be stronger than it was initially.

There are several financial problems that bankruptcy cannot cure.  To name a few:  child support, alimony, criminal fines, some taxes and variant student loans.  Debts that also occur after bankruptcy has been filed will not be cleared after the filing has been submitted.  Also, if anyone has co-signed on an individual’s loans or unpaid debts, the co-signer may have to repay the debt completely.

There is much information to gather before and after filing for bankruptcy.  Although bankruptcy may assist with the financial problems of the moment, there is much that makes up a lawful bankruptcy filing.  As always, it is in your favor to understand the law and its requirements.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Civil Unions

Civil Unions are legal contracts brought about by a voluntary union for life (or until divorce) of same-sex couples.  These unions are recognized by state governments, appointing similar legal rights and benefits that a contract of marriage would provide.  Although, civil unions do not take affiliation with religion, as does marriage.  Civil unions are also known, in some states and countries, as domestic partnerships.  The two terms are interchangeable, when relating to laws and regulations.

In 1989 the country of Denmark contracted civil unions to allow same-sex couples rights similar to those of married couples.  In 2000, Vermont was the first state to create civil unions in the United States.  The state allowed same-sex couples to have some legal rights and responsibilities, although the rights did not extend past Vermont’s state borders. Civil unions currently exist in very few states.  Oregon, New Hampshire, Vermont and Iowa are currently four of those states.  The civil unions projected from each given state are not standardized at this time.  Each state has a different list of benefits and responsibilities that are given to the contracted couple.

To date, it is not legal for same-sex couples to marry under the United States Federal Government (Defense of Marriage Act – 1996); therefore, states have had to make decisions whether to add, or not add, civil unions as legality within each individual state’s law system.

There are several differences between the contract of marriage and a civil union:

Taxes – As a civil union is not recognized at a Federal level, same-sex couples cannot file joint tax returns, as a married couple would.  This also means that civil union does not recognize any tax breaks or protections, as marriage would provide.

Illness/Sick Leave – Marriage allows for the opposite partner to be added to their insurance policy.  Currently, this is not the case with civil unions.  Civil Unions also will not allow a partner to make emergency medical decisions for their partner, or take leave of work for partner illness.  Marriage allows both of these benefits.  Civil unions have been amended to allow for portions of these benefits to exist, but not in full capacity.

It can be important for a same-sex couple in a civil union to contact a lawyer to set up a ‘Medical Power of Attorney’ statement and a Living Will, otherwise, some requests may be challenged in an emergency setting.  As with any Power of Attorney or Living Will, a court can always contest, although most are treated with professional respect.

Termination/Divorce – To terminate a marriage contract, a judicial sequence of events, in and out of the court system, must take place.  With most civil unions (if children are not involved), there need not be any judicial action taken.  At most, a civil union will require a signature from both parties, although a reason for separation is not necessary.

There are numerous differences between the contracts of marriage and civil union.  In being knowledgeable of your rights and the steps that should be taken before emergency situations occur are important.  A civil union is but a contract that may need additional legal follow-up to make complete with any court system.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Receipt Of A Subpoena

A subpoena, by definition, is an order by a government agency for an individual or organization to either testify in the court of law, or provide physical evidence before an ordering court.  In not complying with such an order, one may face penalty or punishment of law.

Subpoenas are most often served in-person by an attorney, although they can also be sent via mail.  Either way the subpoena is delivered, immediate compliance will be required.  If an attorney or any other appointed court personnel delivers the subpoena, a signature of receipt will also be necessary.

There are two types of subpoenas that are commonly ordered:

1.  Subpoena ad testificandum – This type of subpoena will order an individual to testify before a court of law, or ordering authority.  In not doing so, an individual will face punishment of law.

2.  Subpoena duces tecum – This subpoena will order an individual to bring physical evidence before a court of law, or an ordering authority.  As with the Subpoena ad testificandum, to not comply with this order is punishable by law.

The subpoena process:

1.  Filing – A subpoena is most often issued by a court clerk, with respects to the judge     presiding over the present case.  Subpoenas are sometimes issued as a blank form, leaving it up to the lawyer (in need of witness or evidence) to complete and distribute     the order.  In other cases, the court clerk will write out the subpoena in the form of a letter, and distribute accordingly.  The form or letter will include the name of the witness being ordered (and/or evidence necessary from that witness).  It will also include a date, time and place where the witness or evidence must be present, under penalty of law.

2.  Accept/Contest – Once an individual or organization has received a subpoena, it is important to check all information for validity.  If the subpoena is invalid or does not seem to be in relation to you or your organization, it can be challenged (which is known as a Motion to Quash).  The court must immediately be informed that you wish to file a  Motion to Quash, so that legal action is not taken for non-compliance.

3.  Hiring A Lawyer – It is always in your best interest to hire a lawyer to protect you from laws and/or situations in which you may not be familiar.  It is difficult to rebut any words spoken under oath, or any documents you may have signed.  Even if you are not a guilty individual or organization, there is always the possibility of being sentenced to criminal charges, for signing or saying something that is a mischaracterization.

The receipt of a subpoena can be both stressful and overwhelming.  In understanding the process of how a subpoena is handled from start to finish, you can ease a portion of this stress.  Although the best way in which to handle any form or paperwork received from a court system, is to contact a professional.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Torts and Negligence

Tort law, defined in common law legal systems, “is a body of law that addresses and provides remedies for civil wrongdoings not arising out of contractual obligations. Torts are intentional, negligent, or strict liability.” Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another’s injury. The two largest categories of conduct on which liability may be predicated are intentional and negligent torts.

Torts are divided into basic types:
1. Negligence
2. Intentional harm to a person
3. Intentional harm to tangible property
4. Strict liability
5. Nuisance
6. Harm to economic interests
7. Harm to intangible property interests

Typically, the most common tort is due to negligence and the negligent use of an automobile.

Some torts are not from pure negligence but are intentional. Intentional torts are crimes because of the harm done by one person to another. Assault and battery is included in tort law as is false imprisonment and intentional mental distress.

With tort law, the difficulty of the case is based on the amount of negligence. One party must prove that the other party caused injury due to being negligent. Injury is also defined broadly with tort law. Injury does not just mean a physical injury. Injuries in tort law reflect any invasion of any number of individual interests. These interests include property rights.

Intentional harm to tangible property includes Trespass to Land, Trespass to Chattels and Conversion.

Among intentional torts may be certain torts arising out of the occupation or use of land. One such is the tort of nuisance, which connotes strict liability for a neighbor who interferes with another’s enjoyment of his real property. Trespass allows owners to sue for incursions by a person (or his structure, for example an overhanging building) on their land. There is a tort of false imprisonment, and a tort of defamation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another.

With strict liability, the tort is based on a product. The duty to warn is often applied to potentially dangerous products. For example, crashworthiness of cars; hazards and side effects of medications. This is why cigarettes have warning labels. Even ladders now have warning signs on them! Are the products safe for their intended use?

There is also what is called a “strict liability tort” which exists even though the person acted with extreme caution and did not intend to cause harm.

Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment.

Workers’ compensation laws were a legislative response to the common law torts doctrine placing limits on the extent to which employees could sue their employers in respect of injuries sustained during employment.

Two types of damages may be recovered in a civil tort suit: compensatory damages and punitive damages, however, some states do not allow punitive damages in tort actions. Compensatory damages are as they are labeled- they have to do with compensation. The compensation that is awarded is usually required for the repair or restoration of property damages.

If damages were personal, then compensatory damages would also cover medical bills, lost wages, pain and suffering and cover an estimated loss of future earnings.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Protecting Your Trademark

By definition, a trademark is “a distinctive sign or indicator used by an individual, business, organization or other legal entity to identify products or services to consumers with which the trademark appears originate from a unique source.” Companies or individuals register their trademarks to protect it from being used by other entities, which is considered trademark infringement.

After a trademark is registered, it is usually designated with one of the following symbols:
•    ™ (for an unregistered trade mark, that is, a mark used to promote or brand goods)
•    ? (for an unregistered service mark, that is, a mark used to promote or brand services)
•    ® (for a registered trademark)

A trademark does not have to just be a symbol. It can also be a name, word, phrase, logo, image or a combination of these elements. Trademarks can also include the shape of goods, packaging, color or a combination of colors, a smell, sound or even a movement.  The only stipulation is that such items must be used exclusively to identify a commercial source or origin of products or services to be considered a trademark.

The concept of using a trademark is said to date back to the Roman Empire and the blacksmiths who made the swords and placed their stamps on them. One of the oldest registered trademarks is “The Bass Red Triangle”, which was trademarked in 1875 in the United Kingdom.

Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.  The first requirement, as defined by the Lanham Act, is that a mark be used in commerce.  With common law and under traditional Lanham Act registration procedures, exclusive rights to a trademark are awarded to the first to use it in commerce.

The second requirement is that the mark be distinctive.  A trademark that is categorized as descriptive is only protectable as a trademark if it has acquired a secondary meaning in the minds of the consuming public.  Secondary meaning is also necessary to establish trademark protection for a personal name or a geographic term.  Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source.

Different goods and services have been classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes (1 to 34 cover goods, and 35 to 45 services). The idea of this system is to specify and limit the extension of the intellectual property right by determining which goods or services are covered by the mark, and to unify classification systems around the world.

Owners of registered trademarks can protect the unauthorized use of that trademark.  Unregistered marks may only be protected within the geographical area within which it has been used or in geographical areas. A registered trademark is considered by law to be a form of property.

In the United States the trademark registration process entails several steps prior to a trademark receiving its Certificate of Registration.   First, an Applicant, the individual or entity applying for the registration, files an application to register the respective trademark.  An attorney for the U.S. Patent and Trademark Office examines the trademark to make sure it complies with all requirements.  Requirements include making sure the applicant’s goods or services are identified properly and that the mark is not merely descriptive or likely to cause confusion with a pre-existing applied-for or registered mark.

There is then a 30-day waiting period in which third parties who may be affected by the registration of the trademark may step forward to file an Opposition Proceeding to stop the registration of the mark. If this happens, a proceeding is filed before the Trademark Trial and Appeal Board. If there is no third-party opposition, the registration becomes completed.

Trademarks rights must be maintained through actual lawful use of the trademark. These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions. Failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for the removal of the trademark from the register. It is not necessary for a trademark owner to take enforcement action against all infringement if it can be shown that the owner perceived the infringement to be minor and inconsequential. This is designed to prevent owners from continually being tied up in litigation for fear of cancellation.

In the US, due to the overwhelming number of unregistered rights, trademark applicants are advised to perform searches not just of the trademark register but of local business directories and relevant trade press before applying for a registered trademark. There are specialized search companies perform such tasks prior to application.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com

Defining Copyright

Copyright can seem complicated and yet is so important to understand so that one doesn’t infringe on another’s rights.

By definition, copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of works that are substantive and fixed in a medium. Some jurisdictions also recognize “moral rights” of the creator of a work, such as the right to be credited for the work.

Copyright is literally, the right to copy, though in legal terms “the right to control copying” is more accurate. The term copyright means one has exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if they do.

When one wanted a copyright, it initially meant they were granted the exclusive right to copy a book or made allowances for anybody to use the book for various purposes such as making a translation, adaptation or public performance.  At the time print on paper was the only format in which most text based copyrighted works were distributed.

The type of works, which were subject to copyright, expanded over time. Initially copyright only covered books. Then copyright law was revised in the 19th century to include maps, charts, engravings, prints, musical compositions, dramatic works, photographs, paintings, drawings and sculptures. Developments in technology again added to these and now include motion pictures, computer programs, sound recordings, Choreography and architectural works.

The purpose of copyright primarily has its basis in commerce but it is also for the sake of controlling one’s creations. Under the Berne copyright convention, which almost all major nations have signed, every creative work is copyrighted the moment it is fixed in tangible form. No notice is necessary, though it helps legal cases. No registration is necessary, though it’s needed later to sue. The copyright lasts until 70 years after the author dies. Facts and ideas can’t be copyrighted, only expressions of creative effort.

Copyright law is different from country to country, and a copyright notice is required in about 20 countries for a work to be protected under copyright.  Before 1989 all published works in the US had to contain a copyright notice, the (c) symbol followed by the publication date and copyright owner’s name, to be protected by copyright. This is no longer the case and use of a copyright notice is now optional in the US, though they are still used.

Having a copyright on your work is not a complicated process, just one that requires a little research and knowledge.

Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: http://www.smpadvance.com