What Does “Fiduciary” Mean And When Is It Used?

The law can be complicated enough without the absurd jargon associated with many legal scenarios. The word fiduciary can be defined easily enough, but the situations in which it is used are varied and complex.

When used as an adjective, the word refers to the confidence between a trustee and beneficiary. As a noun, it refers to the trustee. Both of these apply in similar ways in a legal framework. It can also refer to a relationship based on ethical understanding, like that of a lawyer and client. A fiduciary is often responsible for money or assets belonging to a second party.

In law, you might hear of “fiduciary duty,” which refers to the obligation one party has to another party. Anyone who has a fiduciary responsibility is required to hold high standards of transparency. There must be no personal benefit for a fiduciary if it comes at the expense of the other party. When this agreement is not upheld, there is a breach of fiduciary duty. The guilty party can be held liable for any resulting damages.

When President Trump took office, he requested a review of the “Fiduciary Rule” in 2017. This rule would require financial advisors to act in the best interests of their clients, which seems like an obvious enough standard. Naturally, Trump wants to kill it (it was Obama’s child, after all). The rule is not yet set in stone, and a review could also allow those in charge of retirement accounts to put their own financial needs ahead of clients whose lives and livelihoods could be adversely affected. The point of the rule is to promote a fiduciary-like relationship between financial advisors and clients much like lawyers and their clients, or doctors and patients.

Although legal jargon can be complicated, sometimes it’s important that the average American knows a term or two for the continued wellbeing of all relevant parties. Fiduciary is one such term, especially where the Fiduciary Rule is concerned. If we don’t have the knowledge to keep our government in check, then it won’t hold itself or others to the necessary standard.

What Is A Laches Defense?

In theory, some civil or criminal lawsuits can come up at any time, even years after an incident occurred.

It doesn’t mean that every single case will be legally legitimate.

In these cases, time is always a factor.

But there are those who will try to ignore time and would rather wait a while and then ambush you with a claim from years ago, perhaps expecting and knowing that you won’t’ have a good defense to put forth.

But in legal circles, that would not be fair. And some legal doctrine demands a fair trial process.

And in situations where there is no statute of limitations on the books, a potential defendant in one of these “ambush” lawsuits can claim what is called a Laches defense to nullify the claim.

The Laches defense is a tactic that essentially protects defendants from these kinds of lawsuits based on an unreasonable time frame in the claim being filed. If the amount of time has passed is sufficient to essentially prevent the defendant from launching a fair defense, the case can be dismissed – despite the validity of the claim – based on the Laches defense.

What determines a valid Laches defense? There are a few things that must be present (or not present, as the case may be):

  • Lack of effective witnesses because of death or relocation.
  • Erosion or disappearance of evidence.
  • The property the plaintiff wants to recover (if applicable) is n longer into eh defendant’s possession.
  • The defendant’s situation has changed for the worse since the incident; meaning that he or she would be less likely to meet any monetary award.

Of course, not all of these elements have to be present in a Laches defense, and even if they all were present, the judge ultimately has discretion in determining whether a Laches defense can be used in that particular claim. As every situation and judge is different, it is difficult to establish any precedent in such cases, so it is always case-specific.

What makes a Laches defense different from a case that has a statute of limitations? A statute of limitations is a law on the books that give a specific time frame for a claim or charges to be brought against a defendant. In these cases, the time frame is codified as a number of months or years and the factors mentioned above for a Laches defense are irrelevant.

A Laches defense is used in other cases in which the incident or the alleged offense does not have a specific statute of limitations on it. There is enough of a risk of nullification that if you have a claim, you are always encouraged to file that claim as quickly as possible to keep your claim legitimate in the eyes of the court.

An ambush is the least popular bush in legal circles.

What Is The Bankruptcy Code?

The Bankruptcy Code is the informal name of the federal bankruptcy law; 11 U.S.C. §§ 101-1330. Bankruptcy laws were created to help people who are no longer in a financially secure situation a chance to start over.

There are several different types of bankruptcy referred to their Chapter in the actual federal law.

Chapter 7 is for liquidation which is the sale of a debtor’s nonexempt property and the distribution of what is earned back to the creditors.

Chapter 9 is for reorganization for municipalities such as cities, towns, villages, counties, and school districts.

Chapter 11 is for reorganization for corporations or partnerships. A debtor usually proposes a plan of action to keep its business alive and the scheduled payments to creditors.

Chapter 12 is for farmers and fisherman and readjusting their debts.

Chapter 13 is for normal wage earners. A debtor is allowed to keep property and use their disposable income to pay off creditors over a three to five year period.

Chapter 15 is for cases dealing with cross-border insolvency. Insolvency is a fancy way of saying the inability to pay debt.

How Do You Know Which Chapter To File? 

A bankruptcy judge and a court trustee examine the assets and liabilities of an individual or a business who cannot pay off their debts. Then they determine which debts the individual or the business will no longer need to pay legally. Therefore, they will determine under which bankruptcy chapter to file.

Bankruptcy does not qualify for student loans, alimony and child support, debts that occur after bankruptcy is filed, taxes, debts from settlements and verdicts.

Bankruptcy will also remain on your credit score for 7-10 years and might prevent you from applying for more lines of credit or applying for jobs. It is only advised for you to file bankruptcy if you are more than $15,000 in debt otherwise the damage to your credit score might be significant.

 

Does Premise Liability Cover Trespassers?

Are you Liable if a Trespasser gets Injured on Your Property?

Premises liability can be one of the more complex areas of personal injury law. In the case of a trespasser, the rules can enter a deeper gray area. I know, this is going to be hard to believe, but in some situations, a trespasser can technically sue for premise liability, even if they were never supposed to be on the property.

As a general rule, property owners are not responsible for trespassers’ injuries.  While there are exceptions to this rule, the court generally has every right to tell the trespasser that the property owner is not liable for their injuries. This rule is not in place to punish trespassers, but it is in place because a property owner cannot always know when a trespasser is on their property. Therefore, the property owner cannot be held responsible for not warning them about safety hazards.

Exceptions to the General Rule

If people trespass on your property regularly, it may be the best practice for the property owner to put up signs around his/her property. The signs will let people known that they are entering private property and are traveling at their own risk.

Another exception to the general rule is if the property owner is engaging in willful and wanton conduct that causes an injury to a trespasser. For example, if you have a piece of land that you do not visit regularly and you notice that there has been a string of robberies, you can not set up a trap with an intention of hurting or killing the trespasser.  In this scenario, the property owner would be liable for the injuries of the trespasser.

When a person trespasses on your property and is injured as a result, it can turn into a very complex case. It is best if you inquire with an experienced premises liability attorney.

What Is Insurance Fraud?

Insurance fraud can happen in two ways, according to the criminal defense lawyers at nstexaslaw.com. First, it happens when a person deliberately lies to get an advantage or benefit to which they are not entitled to. Secondly, it’s when an insurance company denies a benefit that’s due to which another party is entitled to.

Fraud is everywhere, it is in the healthcare industry, auto industry, the workplace, construction industry and more. Costs from fraud with bogus claims amount to billions every year, according to the FBI, making it a huge problem in the society.

Common Types of Insurance Fraud

General Liability Insurance Fraud

This is a broad type of insurance. It covers liability that protects guests on your property from things such as slips and falls. It ideally covers completed operations as well as products liability.

You can protect yourself from general liability insurance fraud by having regular property inspections and having written records of the dates of the inspections. It is ideally wise to be vigilant regarding safety conditions as well as potential obstacles that could result in injury.

Medicare Fraud

In this type of insurance fraud, people try to get your Medicare number and personal information with an aim of impersonating you. It’s always advisable to keep your Medicare card safe as you do with the credit cards.

Only reveal your Medicare number to those you trust. Medical professionals who require your personal information should always ask for your permission if the Medicare number is needed. The permission is usually granted personally or in writing and not over the internet or phone.

Property and Casualty Insurance Fraud

This one can be committed by all kinds of parties including policyholders, insurance applicants, third-party claimants as well as those who offer services to the claimants.

The common frauds in this field included prearranged or planned auto theft, identity theft, arson, burglary, theft of marine vessels, workers compensation, slips and falls and even staged auto accidents.

How To Protect Yourself From Insurance Fraud

There are various ways to protect yourself from this form of fraud. Ensure that you check your bills for accuracy and avoid signing blank insurance claim forms.

Never follow the advice of strangers who contact to offer you legal or medical advice.

Be wary of door-to-door insurance sales as well as any insurance costs that seem too good to be true.

Ensure that companies and agents are licensed. You can verify with your states insurance department.

Be Viligant

Insurance Fraud is happening all over our country, especially in Florida:

What Is Consumer Class Action? Everything You Need To Know

Consumers have the right to sue companies for violating their rights. Consumer class action lawsuits are lawsuits where a consumer, or a group of consumers, sues a company on behalf of themselves and others affected by the same wrongful act. The consumer(s) apply to the court to be appointed a class representative. For such a lawsuit to exist, the company in question must have applied a uniform policy or conduct that affected all the consumers involved.

Consumer class actions are suited to cases where the damages suffered by individual consumers are relatively too small to warrant separate lawsuits. They are also suitable for situations where consumers want a change in the named company’s policy.

There are numerous situations in which consumer class lawsuits are the best way forward. These include situations where companies use unfair marketing or trade practices, violate consumer privacy and protection laws, use debt collection practices that are unfair, commit consumer fraud etc.

Practical examples of how companies usually violate consumer rights include through unwanted robo-calls, charging customers for services not provided, bait and switch marketing and unlawful charges on bills among others.

Things You Should Know About Consumer Class Actions

You are encouraged to register for consumer class action lawsuits you think apply to your situation. In most cases, potential members of a class lawsuit are usually notified through an advertisement or through in store posts.

However, if you think you are a member of a consumer class lawsuit and haven’t been notified, then you can visit the official consumer class lawsuit website, where notifications on all consumer class cases are posted. Alternatively, you can contact the consumer protection arm of your state’s Attorney General’s office.

It is worth mentioning that affected consumers are automatically included in class action lawsuits. However, you still have the right to exclude yourself from such proceedings. This has to be done officially. Once you become a party to a class action lawsuit, your right to file a separate lawsuit is eliminated.

If you think that you have suffered damages over and above what other consumers have, you have the right to lodge a separate lawsuit. It’s recommended that you speak with a qualified attorney to find out whether your case is actionable.

When you are a party to a consumer class action case, it’s worth noting that the damages paid per individual may be quite small. However, it’s recommended that you accept the amount paid out, or else it will be passed on to another consumer who was a party to the same lawsuit. You can donate the money to a charity or use it yourself.

Medical Malpractice: When Can I Bring A Case For Medical Malpractice?

The legal rule called the “statute of limitations” is often heard in various personal injury cases. It is also encountered when a person is bringing a medical malpractice lawsuit. However, it may also refer to any lawsuit that takes place from an injury or an accident, which must be filed within a certain period of time. Failure to file the case within the given period means that the legal claim of the injured person will be lost. He or she can no longer make a claim, as it will be barred along with his or her right to sue.

Each state has its own rule when to bring a case for medical malpractice. The specific time limit allowed by the state usually range from one to six years. Here is a short detail about the time limit when filing a medical malpractice case.

Legal Help

If you sustained an injury because of another person’s action or inaction, you should act promptly. Make sure that you did not exceed the time limit to qualify for the compensation. Then, you can recover damages successfully. In most circumstances, the statute of limitations of a state is not clear. For this reason, you need an expert injury attorney to review your claim for free.

The next step of this legal process is to call a qualified attorney that specializes in medical malpractice. This way, you can guarantee that your rights will be protected. Your attorney should be able to explain and discuss everything about your case. He must be able to state these insights in a clear and simple manner.

The Process of Filing A Medical Malpractice Case

If you wish to bring a claim in this issue, you will also think about how long it will take to be settled. In fact, it is a question that is not easy to answer. If you are the patient, expect to face the case for a couple of years. There are numerous studies about this type of legal case which produced various results. In recent studies, the average period it takes in between the health-related injury and the closing of medical malpractice cases is about five years.

Remember that there is no specific period in the process where settlement takes place. These settlement negotiations may occur at any point. But, these may also happen on multiple occasions as a case progresses. Such settlement agreement takes place under the “courthouse steps.”

What is Lemon Law?

If you experience breakdown after breakdown after a recent auto purchase, then you might be wondering if the lemon law applies to your vehicle. After all, a product is supposed to fulfill its implied function. The lemon law is regulated by a few common sense rules, but the one most people know about is the one that defines what a lemon actually is. If you experience three breakdowns shortly after purchase, then you probably have one.

Lemon law is the branch of law practiced by attorneys who will help you acquire the compensation you deserve after a lemon purchase.

Lemon laws bypass typical warranties by offering better alternatives. A defective vehicle under warranty can be turned in for repair, but most warranties don’t require the vehicle be returned in a set time period. Lemon laws provide that kind of comfort to the consumer.

Although state laws can vary, a lemon law will usually follow a few basic rules. For example, your vehicle is a lemon if it fails three times within a year or before it has been driven 12,000 miles. The law only applies to the scenario that occurs first. If the manufacturer does not repair the defect in a timely manner, then a certified lemon law attorney might be the best option for you.

The underlying point of the law is simple: your new vehicle has a particular defect that either cannot be fixed, or has not been fixed in a reasonable timeframe. Other stipulations might take into account the kind of defect your vehicle experiences. When a lemon law is activated, the dealership that sold you the vehicle is required to offer to buy back the defective vehicle. Normal warranties will never extend this important option to the consumer.

What Is Suing Municipalities?

Life isn’t easy when you’ve been injured, and finding out who is at fault can quickly become a mess when you’re tied up in the legal system. If a city, town, or municipality is to blame for your injury, the process can seem even more complicated. It doesn’t have to be. This is why we have such a system of laws in the first place. So you’ve been injured–but what does it mean to sue a municipality?

Part of the problem when suing municipalities is the legal limitations set forth to protect them from losing too much money–even if their negligence led to your injury. A municipality is defined as a regional division with corporate status or governed locally.

The first thing you’ll notice when trying to file a claim placing blame on a municipality is presence of time. In an ordinary personal injury case, a statute of limitations governs how long you have to file your claim. This period of time usually provides you with years to make your case. When suing a municipality, you might only have as few as thirty days to establish and file your case.

This distinction is important because injuries don’t always become apparent for months or years following an accident. If this scenario sounds like yours, then speak to your personal injury attorney about any options that may still be open to you. Even if your injury is obvious right away, it’s important to set up your case with as much speed as possible.

Before you can file a claim, you should file a “Notice of Claim”. This informs the municipality in question that a lawsuit is pending, and allows them to prepare an appropriate response. In Florida, notice must be filed with the Florida Department of Financial Services. If that seems confusing, you shouldn’t be surprised. Local governments have limited funding, and they protect their resources however they can. After the notice is filed, an additional period of time must elapse before you can take it into court.

One last thing to keep in mind: filing a claim for punitive damages–in order to prevent future negligence–usually isn’t possible when suing municipalities.

What Is RICO?

The legal system has found creative methods of combating criminal organizations in decades past, and the Racketeer Influenced and Corrupt Organizations Act (RICO) was one of the best. It made it easier to charge and convict members of such organizations and levy extreme sentences, even if there was no direct involvement in the worst crimes committed. Of course, the burden of proof is on the prosecution, and the prosecution must meet high standards to achieve a conviction.

Racketeering occurs when criminals plan or organize their activities. The usual template for these activities falls under the umbrella of a larger business which may or may not have genuine business activity. In most cases, a criminal will create an imagined problem, and then offer his services to unwilling consumers in order to “fix” that problem. These days, a racket is any illegal organized operation.

The RICO Act was passed in 1970 in order to target members of racketeering operations. It is a federal law under which prosecutors are able to target the entirety of organizations accused of crimes like money laundering, counterfeiting, embezzlement, or more extreme crimes like kidnapping, murder, and drug and human trafficking.

Someone might be convicted under RICO if prosecutors can prove the individual was part of at least two instances of racketeering. In addition, the individual must have directly invested in the organization. The key to convicting someone under the RICO Act is the effect of those crimes on the interstate or foreign commerce. If the prosecution can prove that the criminal activities affected commerce, then the final nail is pounded into the coffin.

An individual charged under the RICO Act could be imprisoned for up to twenty years, unless one of the charges under the umbrella of Rico would have already demanded life. If one stands accused of murder, for example, then that individual can expect to spend his life behind bars. The charge could also lead to a $250,000 fine. Although these penalties are strict, those prosecuted under the RICO Act could easily land more time because they are usually charged on multiple counts.