CBA Blog

What is the difference between an express and implied contract?

by Timothy P. Heather, Lawyer Referral Service Panelist

The terms of most enforceable contracts are usually very specific and unambiguous.  This is known as an express contract.  However, sometimes neither party specifies what certain terms are, but their actions are such that the terms and conditions of their contract can be inferred.  In this case, there may be an implied contract.  A classic example of an implied contract is your legal obligation to pay the bill after you have gone to a restaurant and had a meal.  There is no express contract, but the circumstances and conduct create a contractual obligation for you to pay for the food which you ordered.

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Posted in Contracts/Business | Tagged , , , , , , , , , , , | 1 Comment

What options are there in the pre-filing stages of foreclosure?

by Thomas D. Richards, Lawyer Referral Service Panelist

There are a variety of options during what is called the “pre-filing” stage of foreclosure. This is the early stage when you are behind a few months (60 to 90 days) on your mortgage, the collection is still being pursued by your lender (typically a bank), and the matter has not gone out to a law firm yet for foreclosure filing.  The first option is a “repayment plan,” in which you pay the amount that is back owed over a period of time, but you also keep up with your current monthly payment.  A second option is a “reinstatement plan,” in which you pay the full amount that is back owed, including interest and penalties, the lender reinstates your mortgage, and you are back where you were before you got behind in payments. A third option is called “loan modification.”  This is when the lender actually changes the terms of your loan, perhaps giving you a lower monthly payment or a little better interest rate. These loan modifications may be temporary or permanent, and are part of the federally sponsored Home Affordable Mortgage Program (HAMP) legislation that was passed a few years ago. HAMP encourages lenders to help qualified borrowers avoid foreclosure by modifying their loans to make them affordable and sustainable.

In those first two to three months of missed mortgage payments, it is critical that you talk to the lender to try to work out your situation.

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What should I do if I am behind on my mortgage payment?

by Thomas D. Richards, Lawyer Referral Service Panelist

There are many reasons for getting behind on a mortgage payment. Perhaps you lost a job, or there is an illness in the family and someone can’t work any longer.  Lots of things happen, but the lender needs to know your situation so they can try to work with you.

When you are behind a few months on your mortgage payment, the worst thing you can do is not communicate with the lender. When they call, you need to talk them. If you can’t take the call, you need to call them back. Communication is critical because if they do not get the impression that you are trying to work something out, they will assume you don’t care to keep your house any longer and will move it into foreclosure.

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Posted in Bankruptcy/Foreclosure/Other Financial Problems | Tagged , , , , , , , , , , , , , , | 1 Comment

What is Chapter 7 Bankruptcy?

by Mark E. Godbey, Lawyer Referral Service Panelist

In a bankruptcy case under Chapter 7 (straight bankruptcy), you file a petition asking the court to discharge your debts. The basic idea in a Chapter 7 bankruptcy is to wipe out (discharge) your debts in exchange for your giving up property, except for “exempt” property which the law allows you to keep. In most cases, all of your property will be exempt. Property exemptions are state specific and may be complicated depending on types of personal property you have; only a skilled bankruptcy attorney will be able to assist you with determining what property is or is not exempt.  If your property is not exempt or has value in excess of the applicable exemption, your property will likely be sold and the funds distributed to your creditors.

If you want to keep property like a home or a car and are behind on the payments on a mortgage or car loan, a Chapter 7 case will not be the right choice for you. That is because Chapter 7 bankruptcy does not eliminate the right of mortgage holders or car loan creditors to take your property to cover your debt.

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Can my income affect the type of bankruptcy I can file?

by Mark E. Godbey, Lawyer Referral Service Panelist

Yes. If your income is above the median income for a family the size of your household in your state, you may have to file a Chapter 13 (“debt adjustment”) case.  The median income figures are state specific and change at least once a year; an experienced bankruptcy attorney will be able to review these figures with you to determine whether or not your income is above the median income line.  If your income is above-median, then you must fill out “means test” forms requiring detailed information about income and expenses. If, under standards in the law, the consumer is found to have a certain amount left over that could be paid to unsecured creditors, the bankruptcy court may decide that the consumer cannot file a Chapter 7 (“straight” bankruptcy) case, unless there are special extenuating circumstances.

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What is bankruptcy?

by Mark E. Godbey, Lawyer Referral Service Panelist

Bankruptcy is a legal proceeding in which a person who cannot pay his or her bills can get a fresh financial start. The right to file for bankruptcy is provided by federal law, and all bankruptcy cases are handled in federal court. Filing bankruptcy immediately stops all of your creditors from seeking to collect debts from you, at least until your debts are sorted out according to the law.

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What are the steps involved in a criminal case?

by Jon Sinclair, Lawyer Referral Service Panelist

The first step in a criminal case is a charge, technically called a criminal complaint, which is made and filed by a police officer.  Once a charge is filed, one of two things can happen: 1) the person can be cited and summoned to appear in court, or 2) an officer can arrest the person, and the person is held in jail until a judge issues a bond. A bond is usually set within 24-48 hours. Once a bond is issued, the person is free to leave jail.  (A bond is generally set at a reasonable amount for the defendant unless violence or a high amount of drugs are involved, but bond can also be based on prior history with the court system and whether or not a person has ever failed to appear in court. In those situations, a bond might be set at a higher amount.)

For misdemeanor cases, a summons is issued or an arrest is made.  Felony cases, however, go to an “initial appearance” which is when a person charged with a crime first appears before a judge, and then the case is sent to a grand jury, which determines if there is probable cause to support a felony charge. A case can be ignored by the grand jury or charges can be reduced to a misdemeanor.

Pre-trials are used mostly to gather discovery, which refers to the evidence the prosecutor has relating to the case.  A motion for discovery is what a defense attorney files with the court to obtain that information from the prosecutor.  A motion to dismiss and motions to suppress evidence occur in the pre-trial stage.  It is common to set a case for trial even though trial is not expected because that trial date may be the only opportunity to plea bargain and discuss a resolution with all the necessary people—prosecutor, defense attorney, police officer, alleged victim, and defendant—all in the same room.

There are two types of trials: “bench trials,” where there is no jury and a judge decides the outcome, and “jury trials,” where a jury of one’s peers decides the outcome. Jury trials are only available if the charge a person is facing involves possible jail time.  Charges for speeding tickets or possession of 100 grams of marijuana or less, for example, would not be eligible for a jury trial since minor misdemeanors never come with possible jail sentence.

Misdemeanors of the fourth, third, second and first degree and all felonies come with possible jail sentencing, so if a person facing one of these charges wants a jury trial, he or she has the right to it, but must make a written demand for it. Most plea bargaining is done on the day of trial and results in a plea of guilty, often to a reduced charged. A trial does not take place when there is plea bargaining. Following a plea, a sentence is given by the judge. If there is no plea-bargaining, then a trial is held, where the prosecutor and defense attorney each present their case.  The decision known as a verdict is made at the conclusion of a jury trial and then a sentence is given.

This is a very generalized overview of the steps of the criminal process.  Every case has its own unique set of circumstances that may affect this process. When faced with a criminal matter, it is always best to consult with an attorney as soon as possible.

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If I am arrested, when should an attorney be hired?

by Jon Sinclair, Lawyer Referral Service Panelist

If you are arrested, an attorney should be hired, or at least consulted, as soon as possible.  It is never a disadvantage to inform a police officer that you would like the opportunity to consult an attorney before speaking with law enforcement. If you have been arrested for a crime and are in custody, the police are supposed to stop asking you questions when you invoke your Miranda rights, but only if you clearly state to them that you would like an attorney. If you are not in police custody, there are no Constitutional limitations on their questioning of you.

For example, if you come down to the police office on your own for questioning or the police officer rings your doorbell and starts asking you information regarding the matter at a later date, there is nothing that prevents them from doing this as a means to gather evidence. By informing the police officer who is asking you questions that you would like to cooperate but only with your attorney present, you can avoid possible self-incrimination.  If you cannot afford an attorney, you may be eligible to be represented by a public defender, provided you meet certain requirements.

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What healthcare providers can a medical malpractice claim cover?

by John D. Holschuh Jr., Lawyer Referral Service Panelist

Medical malpractice claims cover claims against any health care provider including physicians, podiatrists, hospitals, home or residential facilities, or employees or agents of a physician, podiatrist, hospital, home or residential facility, or against a licensed practical nurse, registered  nurse, advanced practical nurse, physical therapist, physician assistant, or emergency medical technician, as well as against a dentist, optometrist or chiropractor.

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What is a medical malpractice case?

by John D. Holschuh Jr., Lawyer Referral Service Panelist

Any claim brought against a health care provider asserting the provider was negligent in his/her care and treatment is a “medical malpractice” case. The issue in every malpractice case is whether the problem or injury is a complication or known risk from the procedure—something which can happen in the best of hands and is not considered malpractice and therefore not pursuable—or is what happened a result from a deviation from the standard of care, in which case it is pursuable.

The person bringing the suit, the plaintiff, must prove that the health care provider “deviated from the standard of care” resulting in harm/injury to the plaintiff. In other words, that the health care provider did some act or failed to do some act that any reasonably competent practitioner, under like or similar circumstances, would or would not have done, thus injuring the plaintiff.

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