Category: Legal Dictionary

Writ of certiorari : An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.

Writ : A written court order directing a person to take, or refrain from taking, a certain act.

Witness : A person called upon by either side in a lawsuit to give testimony before the court or jury.

Warrant : Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.

Wage garnishment : A nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject to his or her claim the future wages of a debtor. In other words, the creditor seeks to have part of the debtor’s future wages paid to the creditor for a debt owed to the creditor.

Voluntary transfer : A transfer of a debtor’s property with the debtor’s consent.

Voir dire : Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

Verdict : The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.

Venue : The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

Uphold : The appellate court agrees with the lower court decision and allows it to stand. See affirmed.

Unsecured claim : A claim or debt for which a creditor holds no special assurance of payment, such as a mortgage or lien; a debt for which credit was extended based solely upon the creditor’s assessment of the debtor’s future ability to pay.

Unscheduled debt : A debt that should have been listed by the debtor in the schedules filed with the court but was not. (Depending on the circumstances, an unscheduled debt may or may not be discharged.)

Unliquidated claim : A claim for which a specific value has not been determined.

Unlawful detainer action : A lawsuit brought by a landlord against a tenant to evict the tenant from rental property – usually for nonpayment of rent.

Undue hardship : The most widely used test for evaluating undue hardship in the dischargeability of a student loan includes three conditions: (1) the debtor cannot maintain – based on current income and expenses – a minimal standard of living if forced to repay the loans; (2) there are indications that the state of affairs is likely to persist for a significant portion of the repayment period; and (3) the debtor made good faith efforts to repay the loans.

Undersecured claim : A debt secured by property that is worth less than the amount of the debt.

U.S. trustee : An officer of the U.S. Department of Justice responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors’ committees; monitoring fee applications; and performing other statutory duties.

U.S. attorney : A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government. The U.S. Attorney employs a staff of Assistant U.S. Attorneys who appear as the government’s attorneys in individual cases.

Typing service : A business not authorized to practice law that prepares bankruptcy petitions.

Trustee : The representative of the bankruptcy estate who exercises statutory powers, principally for the benefit of the unsecured creditors, under the general supervision of the court and the direct supervision of the U.S. trustee or bankruptcy administrator. The trustee is a private individual or corporation appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter 11 cases. The trustee’s responsibilities include reviewing the debtor’s petition and schedules and bringing actions against creditors or the debtor to recover property of the bankruptcy estate. In chapter 7, the trustee liquidates property of the estate, and makes distributions to creditors. Trustees in chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional responsibilities of overseeing the debtor’s plan, receiving payments from debtors, and disbursing plan payments to creditors.

Transfer : Any mode or means by which a debtor disposes of or parts with his/her property.

Transcript : A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition

Toll : See statute of limitations.

Testimony : Evidence presented orally by witnesses during trials or before grand juries.

Temporary restraining order : Akin to a preliminary injunction, it is a judge’s short-term order forbidding certain actions until a full hearing can be conducted. Often referred to as a TRO.

Subpoena duces tecum : A command to a witness to appear and produce documents.

Subpoena : A command, issued under a court’s authority, to a witness to appear and give testimony.

Sua sponte : Latin, meaning “of its own will.” Often refers to a court taking an action in a case without being asked to do so by either side.

Statute of limitations : The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.

Statute : A law passed by a legislature.

Statement of intention : A declaration made by a chapter 7 debtor concerning plans for dealing with consumer debts that are secured by property of the estate.

Statement of financial affairs : A series of questions the debtor must answer in writing concerning sources of income, transfers of property, lawsuits by creditors, etc. (There is an official form a debtor must use.)

Standard of proof : Degree of proof required. In criminal cases, prosecutors must prove a defendant’s guilt “beyond a reasonable doubt.” The majority of civil lawsuits require proof “by a preponderance of the evidence” (50 percent plus), but in some the standard is higher and requires “clear and convincing” proof.

Small business case : A special type of chapter 11 case in which there is no creditors’ committee (or the creditors’ committee is deemed inactive by the court) and in which the debtor is subject to more oversight by the U.S. trustee than other chapter 11 debtors. The Bankruptcy Code contains certain provisions designed to reduce the time a small business debtor is in bankruptcy.

Settlement : Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault.

Service of process : The delivery of writs or summonses to the appropriate party.

Sequester : To separate. Sometimes juries are sequestered from outside influences during their deliberations.

Sentencing guidelines : A set of rules and principles established by the United States Sentencing Commission that trial judges use to determine the sentence for a convicted defendant.

Sentence : The punishment ordered by a court for a defendant convicted of a crime.

Senior judge : A federal judge who, after attaining the requisite age and length of judicial experience, takes senior status, thus creating a vacancy among a court’s active judges. A senior judge retains the judicial office and may cut back his or her workload by as much as 75 percent, but many opt to keep a larger caseload.

Secured debt : Debt backed by a mortgage, pledge of collateral, or other lien; debt for which the creditor has the right to pursue specific pledged property upon default. Examples include home mortgages, auto loans and tax liens.

Secured creditor : A secured creditor is an individual or business that holds a claim against the debtor that is secured by a lien on property of the estate. The property subject to the lien is the secured creditor’s collateral.

Schedules : Lists submitted by the debtor along with the petition (or shortly thereafter) showing the debtor’s assets, liabilities, and other financial information. (There are official forms a debtor must use.)

Sanction : A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.

Reverse : The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.

Remand : Send back.

Redemption : A procedure in a Chapter 7 case whereby a debtor removes a secured creditor’s lien on collateral by paying the creditor the value of the property. The debtor may then retain the property.

Record : A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.

Reaffirmation agreement : An agreement by a debtor to continue paying a dischargeable debt after the bankruptcy, usually for the purpose of keeping collateral or mortgaged property that would otherwise be subject to repossession.

Prosecute : To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government
.

Property of the estate : All legal or equitable interests of the debtor in property as of the commencement of the case.

Proof of claim : A written statement describing the reason a debtor owes a creditor money, which typically sets forth the amount of money owed. (There is an official form for this purpose.)

Probation officer : Officers of the probation office of a court. Probation officer duties include conducting presentence investigations, preparing presentence reports on convicted defendants, and supervising released defendants.

Probation : Sentencing option in the federal courts. With probation, instead of sending an individual to prison, the court releases the person to the community and orders him or her to complete a period of supervision monitored by a U.S. probation officer and to abide by certain conditions.

Pro tem : Temporary.

Pro se : Representing oneself. Serving as one’s own lawyer.

Pro per : A slang expression sometimes used to refer to a pro se litigant. It is a corruption of the Latin phrase “in propria persona.”

Priority : The Bankruptcy Code’s statutory ranking of unsecured claims that determines the order in which unsecured claims will be paid if there is not enough money to pay all unsecured claims in full.

Pretrial services : A function of the federal courts that takes place at the very start of the criminal justice process – after a person has been arrested and charged with a federal crime and before he or she goes to trial. Pretrial services officers focus on investigating the backgrounds of these persons to help the court determine whether to release or detain them while they await trial. The decision is based on whether these individuals are likely to flee or pose a threat to the community. If the court orders release, a pretrial services officer supervises the person in the community until he or she returns to court.

Preferential debt payment : A debt payment made to a creditor in the 90-day period before a debtor files bankruptcy (or within one year if the creditor was an insider) that gives the creditor more than the creditor would receive in the debtor’s chapter 7 case.

Precedent : A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally “follow precedent” – meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.

Prebankruptcy planning : The arrangement (or rearrangement) of a debtor’s property to allow the debtor to take maximum advantage of exemptions. (Prebankruptcy planning typically includes converting nonexempt assets into exempt assets.)

Postpetition transfer : A transfer of the debtor’s property made after the commencement of the case.

Pleadings : Written statements filed with the court that describe a party’s legal or factual assertions about the case.

Plan : A debtor’s detailed description of how the debtor proposes to pay creditors’ claims over a fixed period of time.

Plaintiff : A person or business that files a formal complaint with the court.

Petty offense:  A federal misdemeanor punishable by six months or less in prison.

Petition preparer : A business not authorized to practice law that prepares bankruptcy petitions.

Petition : The document that initiates the filing of a bankruptcy proceeding, setting forth basic information regarding the debtor, including name, address, chapter under which the case is filed, and estimated amount of assets and liabilities.

Peremptory challenge : A district court may grant each side in a civil or criminal trial the right to exclude a certain number of prospective jurors without cause or giving a reason.

Per curiam : Latin, meaning “for the court.” In appellate courts, often refers to an unsigned opinion.

Party in interest : A party who has standing to be heard by the court in a matter to be decided in the bankruptcy case. The debtor, U.S. trustee or bankruptcy administrator, case trustee, and creditors are parties in interest for most matters.

Panel : 1. In appellate cases, a group of judges (usually three) assigned to decide the case; 2. In the jury selection process, the group of potential jurors; 3. The list of attorneys who are both available and qualified to serve as court-appointed counsel for criminal defendants who cannot afford their own counsel.

The Sentencing Reform Act of 1984 abolished parole in favor of a determinate sentencing system in which the sentence is set by sentencing guidelines. Now, without the option of parole, the term of imprisonment the court imposes is the actual time the person spends in prison.

Opinion : A judge’s written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent.

Objection to exemptions : A trustee’s or creditor’s objection to the debtor’s attempt to claim certain property as exempt from liquidation by the trustee to creditors.

Objection to dischargeability : A trustee’s or creditor’s objection to the debtor being released from personal liability for certain dischargeable debts. Common reasons include allegations that the debt to be discharged was incurred by false pretenses or that debt arose because of the debtor’s fraud while acting as a fiduciary.

Nonexempt assets : Property of a debtor that can be liquidated to satisfy claims of creditors.

Nondischargeable debt : A debt that cannot be eliminated in bankruptcy. Examples include a home mortgage, debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor’s conviction of a crime. Some debts, such as debts for money or property obtained by false pretenses and debts for fraud or defalcation while acting in a fiduciary capacity may be declared nondischargeable only if a creditor timely files and prevails in a nondischargeability action.

Nolo contendere : No contest. A plea of nolo contendere has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.

No-asset case : A Chapter 7 case in which there are no assets available to satisfy any portion of the creditors’ unsecured claims

Motion to lift the automatic stay : A request by a creditor to allow the creditor to take action against the debtor or the debtor’s property that would otherwise be prohibited by the automatic stay.

Motion in Limine : A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.

Motion : A request by a litigant to a judge for a decision on an issue relating to the case.

Moot​ : Not subject to a court ruling because the controversy has not actually arisen, or has ended

Mistrial : An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

Misdemeanor : An offense punishable by one year of imprisonment or less. See also felony.

Mental health treatment : Special condition the court imposes to require an individual to undergo evaluation and treatment for a mental disorder. Treatment may include psychiatric, psychological, and sex offense-specific evaluations, inpatient or outpatient counseling, and medication.

Means test : Section 707(b)(2) of the Bankruptcy Code applies a “means test” to determine whether an individual debtor’s chapter 7 filing is presumed to be an abuse of the Bankruptcy Code requiring dismissal or conversion of the case (generally to chapter 13). Abuse is presumed if the debtor’s aggregate current monthly income (see definition above) over 5 years, net of certain statutorily allowed expenses is more than (i) $10,000, or (ii) 25% of the debtor’s nonpriority unsecured debt, as long as that amount is at least $6,000. The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income.

Magistrate judge : A judicial officer of a district court who conducts initial proceedings in criminal cases, decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters on behalf of district judges, and decides civil cases with the consent of the parties.

Litigation : A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

Liquidation : The sale of a debtor’s property with the proceeds to be used for the benefit of creditors.

Liquidated claim : A creditor’s claim for a fixed amount of money.

Lien : A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.

Lawsuit : A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.

Jury instructions : A judge’s directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.

Jury : The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact. See also grand jury.

Jurisprudence : The study of law and the structure of the legal system

Jurisdiction : The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

Judicial Conference of the United States: The policy-making entity for the federal court system. A 27-judge body whose presiding officer is the Chief Justice of the United States.

Judgment : The official decision of a court finally resolving the dispute between the parties to the lawsuit.