Lanigan & Lanigan, P.L.
831 W. Morse Blvd., Winter Park, Florida 32789
407-740-7379
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The Law
In every secured transaction the collateral carries a special importance for the different rules that apply. While most people think of collateral as some valuable piece of personal property, there are several different classifications that make a significant difference within a legal dispute. Hence, it is imperative to identify and categorize the collateral before any security interest can be analyzed. Security Agreement Mistake Problems For purposes of the Uniform Commercial Code, all collateral can fit within only one of the meticulously defined types. Each category dictates how and when each security interest is perfected so that other creditors are aware of any encumbrances that may exist. If a mistake is made in the security agreement or the financing statement in the listing of collateral it could cause serious problems down the road for both the debtor and creditor. Collateral Category Can Change However, the only way to understand the various types of classifications is to read the exact definitions that the drafters of the UCC have established. Although there are over 12 different categories with specific conditions for each one, there are a few principal subsets that encompass the others. For instance, the collateral may be defined as “goods” but within this category are 4 other definitions: consumer goods, farm products, inventory, and equipment. Each one these is a type of good, but they are all mutually exclusive of each other. Equipment cannot be inventory and inventory cannot be consumer goods, etc. Depending on whose hand the collateral is in, the category can change over time. Thus, there can only be one classification at a time but there...
The Law
While compensatory damages provide a plaintiff with a monetary recovery, sometimes the remedy of unjust enrichment is an excellent solution to a legal dispute. Unjust enrichment, known as restitution, is based on the general equitable principle that a person should not be permitted to profit at another’s expense without reasonable compensation for any property, services, or other benefits that have been unfairly received and retained. Three Reasons for Unjust Enrichment Generally, there are three reasons why a plaintiff would seek unjust enrichment instead of damages. First, depending on the situation, it may allow the plaintiff to recover more money than normal compensatory damages. This is because the market value of the damages may not compare to the actual amount the defendant was enriched. Second, it may be the only way to win the case when there is no oral or written contract. The court may find that there is a “quasi-contract” or contract implied in law. Because contract law won’t allow recovery without an enforceable oral or written contract, the law creates a “pretend” contract so that the plaintiff can recover. Third, certain types of recovery through unjust enrichment will allow priority in bankruptcy. If the defendant is insolvent the law creates a constructive trust which provides that the defendant was holding something that never really belonged to him or her, but really belonged to the plaintiff. Thus, the law puts the plaintiff ahead of other creditors because that money is rightfully the plaintiff’s. Unjust Enrichment in Some Situations There are a handful of situations where the law allows recovery based on unjust enrichment. For instance, unjust enrichment may be...
The Law
Corporations can be structured in a variety of ways but each business requires its own form based on its own particular circumstances. In the beginning stages of forming a company, it is vital to consult the state’s applicable corporate law. Because Delaware developed body of case law and lenient attitude towards upper management, many companies are based out of that state. However, many states, including Florida, follow the Model Business Corporation Act (MBCA) which provides the general rules of corporate structure. One way to think of the articles of incorporation is to imagine it is the Constitution while the bylaws are akin to statues passed by Congress. Generally, after the incorporators file the articles of incorporation, they have a meeting to vote on a board of directors. This decision is of vital importance because the board is the usually the central source of decision making and authority within a company. The board of directors is usually the only group that may propose amendments to articles of incorporation which make them much harder to amend than the bylaws. Thus, the articles are designed to give consistency to a company and help protect minority shareholders. After the directors are elected, the board must decide how many shares to issue which can vary depending on the type of company. Because the shareholders are the “owners” of the company, they too are not without power. Generally, shareholders as a whole have a right to propose bylaws even if board of directors disagrees. While shareholders and the board can both amend the bylaws, the board can be limited by a provision in the articles...
The Law
One of the most important questions for people involved in a legal dispute is, “what do I get if I win?” More often than not a prevailing litigant is entitled to monetary damages as a result of establishing that he or she has been wronged in a way the law recognizes. Although the law affords different kinds of damages to a winning plaintiff, compensatory damages are the most common. It’s Usually About the Money The purpose of compensatory damages is to award a sum of money to a victim for some loss that they have sustained. Known as the “rightful position” principal, the idea is to put the plaintiff in the position it would have been but for the defendant’s wrong. This could be the result of tort, property, contract, or constitutional law but it is measured based on the particular circumstances of the case. Nevertheless, compensatory damages are different from consequential or “special” damages. Compensatory damages are a direct result of the defendant’s harm which is usually a capital interest. On the other hand consequential damages tend to be later in time and are not the inevitable result of the harm. Thus, compensatory damages are awarded more often because there is a direct link. One of the important issues that arise with damages is the concept of valuation. Generally, the law employs market damages to determine the appropriate amount that should be awarded to a plaintiff for property damage. The market can be defined as what a willing seller and a willing buyer would normally exchange. Several factors are relevant in this valuation such as: the scope of...
The Law
Civil law consists of a wide variety of legal disputes between individuals or organizations, usually to provide compensation to a victim. Opposed to criminal law, civil law does not invoke the state’s statutory power against the individual but instead attempts to rectify civil wrongs between its citizens. It provides a forum for citizens to remedy disputes without resorting to violence or revenge. Thus, civil litigation is the process by which civil matters are brought before a court of law. It involves disputes concerning torts, contracts, probate of wills and trusts, property, administrative law, commercial law, and other matters between private parties. In civil law cases, the burden of proof requires the plaintiff to convince a trier of fact (whether judge or jury) of the plaintiff’s entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover. Unlike criminal law where the standard of proof is “beyond a reasonable doubt,” generally in civil cases the standard is a “preponderance of the evidence” which is a slight tipping of the scale. Premise of Civil Action For a civil court to be able to render a judgment on an individual, it must first have personal jurisdiction. Personal jurisdiction is concerned with where and when is it acceptable to make a person defend him or herself in a court of law. It is the notions of fairness, constancy, justice, and transparency through due process that keep the system working. Thus, personal Jurisdiction involves state boundaries and whether a court in a particular state can bind a citizen of another...
The Law
Almost every day of our lives we sign and agree to contracts. Whether it’s buying goods online, paying for groceries at the store, or purchasing a new car, contracts make the business world go round. While contracts play a major role in our lives, many are not familiar with the exact components that make up their contractual rights. Definition of a Contract: Bilateral Exchange of Promises First and foremost, a traditional contract is a bilateral exchange of promises. It is either a promise in return for a promise or a promise in return for an action. For instance, if I promise to wash your car and you promise to give me $10 then we have both exchanged promises. However, before contract formation there must first be assent by both parties for the contract to be deemed enforceable. Assent is the intention to enter the contract and is based on both objective and subjective factors. Without assent there can be no contract. Secondly, there must be a true offer and consideration in the formation of a contract. An offer is an act whereby one person confers upon another the power to create contractual relations between them. It must lead the offeree reasonably to believe the power to create a contract is conferred upon him and it must exclude invitations to deal, acts of preliminary negotiations, and acts evident in jest. In addition, there must be sufficient consideration with the offer which makes it a bargained for exchange. If there is no consideration than the promise is gratuitous which destroys the contract. Lastly, there must be acceptance by the offeree to...
