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Litigation

Tuesday, July 18, 2017

Cognovit Notes Can Be Useful But Cannot Be Used For All Types of Loans


ERISA fringe benefit funds often use cognovit notes for repayment of delinquent employer fringe benefit contributions.  Cognovit notes offer certain advantages, since they permit the holder to take judgment on the delinquent balance in the event of default without engaging in protracted litigation.  The holder of the note simply files a complaint for the delinquent balance while an answer to the complaint is simultaneously filed with the court.  The answer is filed by an attorney, usually at the same law firm, confessing judgment on behalf of the delinquent payor on the note. 

Under a cognovit note, the payor authorizes any attorney in the State of Ohio to appear in court on the payor’s behalf and confess judgment.
Read more . . .


Tuesday, October 13, 2015

I've been named in a lawsuit. Now what?

When someone receives an envelope from a court continuing paperwork advising that they have been named in a lawsuit, the usual first reaction is one of panic.  That initial reaction is understandable – most people are unfamiliar with how courts operate, and they would rather not be involved in litigation.  Fortunately, an experienced attorney can help you navigate through the process.

An attorney can review the documents you received and determine whether the party initiating the lawsuit (called the plaintiff) has asserted claims against you, or whether you have been made part of the proceeding in another capacity.  The attorney can also help you determine if any claims against you are covered by insurance, and he or she can help you make a claim with your insurer.  If an insurance policy is applicable, the insurance company should appoint a lawyer to represent you in the lawsuit at the insurer’s expense.  There are time limits and other requirements that must be met to obtain the benefits an insurance policy provides, so it is important to contact an attorney to look into these matters at the beginning of a lawsuit.

Perhaps the most-important thing to remember when you believe you have been named in a lawsuit is that time is not on your side.  There are deadlines that must be met for a variety of actions, and, for example, if you fail to respond to the lawsuit in the applicable time limit, a judgment may be granted against you.  As time passes and events occur in the lawsuit without your involvement, it becomes increasingly difficult for any attorney who later becomes involved on your behalf to safeguard your interests.  It is therefore critical to contact an attorney as soon as you receive paperwork indicating that you have become involved in a legal process.  


Wednesday, September 2, 2015

The insurer denied my claim. Now what?

Accidents happen.  Mother Nature causes damage.  Buildings burn down.  Because we know these things will happen, people and businesses purchase insurance to protect them from the losses these events cause.  A surprising number of times, though, after one of these events, someone makes a claim with their insurer, only to be told by the insurer that the loss isn’t covered.

But insurers make mistakes.  Some also say that insurers intentionally deny a claim in the hopes that the claim will go away.  Whatever the reason for the denial, if you have suffered a loss you believe should be covered by insurance, it is wise to have the matter reviewed by an attorney.

Ohio law recognizes that insurers write the insurance contracts, and that the purchaser has little to no say in what language is included, so insurance contracts are interpreted in favor of the insured.  Many times, courts have determined that when a contract is interpreted in favor of the insured, a claim actually is covered, despite the fact the insurer reads the contract differently.  This area of the law can be complex, and Insurance-coverage law is an area that many attorneys are unfamiliar with, so consultation with an attorney experienced in this area is critical.


Tuesday, June 30, 2015

What is discovery?

In a lawsuit, the parties need to learn what information and evidence the other parties have.  Statistically, the vast majority of civil disputes settle prior to trial.  Without obtaining the other parties’ information and evidence, though, the parties cannot evaluate the strengths and weaknesses of each party’s claims and defenses, and therefore cannot engage in meaningful settlement discussions.  Parties also need to obtain the other parties’ information and evidence so that a fair trial can be had if the parties cannot reach a settlement prior to trial.  The legal system is not designed for “trial by ambush.”  Instead, the law promotes the free sharing of information and evidence. 

To accomplish this sharing, the parties will typically engage in two forms of discovery:  written discovery and depositions.  Written discovery consists of written questions in the form of interrogatories, requests for production, and requests for admission.  Depositions are a procedure where a witness is asked questions under oath, and a court reporter records the answers.  These discovery methods are employed in virtually every civil lawsuit.  While simple in concept, there are a myriad of rules, written and unwritten, that much be followed.  There can be serious adverse consequences for not following rules, so having the benefit of experienced litigation counsel is critical.  


Friday, April 24, 2015

The “litigation hold” – what it is and why you must do it.

When a dispute arises, the parties to it need to take action to safeguard evidence that relates to the dispute.  The parties need to place a “hold” on their normal destruction protocols so that routine document and data destruction won’t cause the loss of evidence relevant to the dispute. 

So, for example, if paperwork relating to a dispute is set to be shredded by the warehouse where it is stored, you need to contact the warehouse and instruct them to pull out and preserve that file.  Similarly, the relevant emails of those persons involved in the dispute must also be collected and stored.

Preserving evidence related to a dispute is both good practice and required under the law.  If you have a dispute with another, you will need evidence to support your position.  If you do not preserve the evidence in your possession regarding the dispute, you may not be able to prove you should prevail.  In addition to this practical aspect, both federal and state laws require you to preserve evidence when a dispute arises. 

The rules applicable to each situation differ, so it is critical that you consult with an attorney as soon as possible.  Failing to properly preserve evidence can have drastic consequences, up to and including the awarding of a judgment against you for failing to follow the applicable rules, making the need to consult with an attorney even greater.


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With offices in Toledo and Lima, OH Allotta Farley Co., L.P.A. serves clients throughout northwest OH with various legal matters. Areas of service include Allen County, Ashland County, Auglaize County, Crawford County, Defiance County, Erie County, Fulton County, Hancock County, Hardin County, Henry County, Huron County, Lucas County, Marion County, Mercer County, Morrow County, Ottawa County, Paulding County, Putnam County, Richland County, Sandusky County, Seneca County, Van Wert County, Williams County, Wood County, Wyandot County.

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