Instructions from a judge to the jury before it begins deliberations on the substantive questions to be answered and the legislation to be applied. All shares of ownership of the debtor at the time of bankruptcy. The estate technically becomes the temporary legal owner of all of the debtor`s assets. The distinction between the terms « bankruptcy » and « insolvency » is important. Insolvency is not synonymous with bankruptcy. Insolvency is a legal finding that imposes judicial review of the debtor`s financial affairs. In modern law, insolvency is often a necessary but not sufficient condition for bankruptcy. As a « finding of fact » in the insolvency court, the plaintiff bears « the final burden of the conviction » in determining a debtor`s insolvency. The First Circuit, in Consove v. Cohen argued that unaudited financial statements are permissible in cases where they are the best available evidence of a debtor`s insolvency and that it is incumbent upon us to assess the accuracy of these accounts receivable.
Similarly, in In re Erstmark Capital Corp., the Fifth Circuit found that « while balance sheets alone are not sufficient evidence to declare bankruptcy, they may, in certain circumstances, provide competent evidence from which conclusions about a debtor`s insolvency can be drawn. » However, when a State becomes insolvent, the legal process for debtors and creditors differs considerably. Because of sovereign immunity, there is no legally and politically recognized process for restructuring the debts of failed states. Alexander Hamilton`s statement in Federalist 81 is still true today: « Treaties between a nation and individuals bind only the conscience of the sovereign and have no right to compulsive force. They do not grant the right to act, regardless of the sovereign will. As sovereigns, governments control their own affairs and therefore cannot be forced to repay their debts. Conversely, creditors do not have a clearly defined right to government assets. However, insolvent governments have a strong incentive to repay their debt obligations. Because a country that does not pay its debts will continue to struggle to borrow money in the future; Access to credit markets is severely restricted by prudent investors. « Cash flow » insolvency is also known as fair insolvency or « solvency test ».
An Ohio court ruled in Cellar Lumber Co. v. Holley that cash bankruptcy is « the inability to pay debts when they come due in the ordinary course of business. » This is a « broader concept [than balance sheet solvency] that comes from brokers or dealers. » Under section 6 of the Uniform Fraudulent Transfer Act, insolvency is determined by asking whether the debtor « intends or believes that it will incur debts beyond its ability to pay when due. » While the UCC, in its definition of « insolvent », « is unable to pay debts when due ». Cash flow insolvency is, by its very nature, a forward-looking test. A company must demonstrate that it is able to meet its current and future debt obligations. A test that takes into account only the historical capacity of the company to pay its debts would be completely ineffective in discouraging activities that destroy loans. In addition, companies may be insolvent on their balance sheets, but liquid enough to pay their creditors. For example, in Angelo, Gordon & Co. L.P.
v. Allied Riser Commc`ns Corp., the debtor company liquidated all of its assets during the bankruptcy of the balance sheet and had sufficient cash to pay its outstanding obligations. The Secretary shall have the authority to supervise the payment of unpaid minimum wage or unpaid overtime pay due to one or more employees under section 206 [section 6] or section 207 [section 7] of this title, and the consent of an employee to accept such payment constitutes, after full payment, a waiver by that employee of any right to: that he may have in such unpaid minimum wages under paragraph (b) of this section. or unpaid overtime pay and an additional amount equal to lump sum damages. The secretary may bring an action in any court of competent jurisdiction to recover the amount of the unpaid minimum wage or overtime pay and an amount equal to the amount of liquidated damages. The right under clause (b) of this section to bring an action by or on behalf of an employee to recover the liability referred to in the first sentence of this subsection and the employee who becomes a claimant in such an action ends upon the filing of a complaint by the Secretary in an action under that subsection for recovery of unpaid minimum wage or unpaid overtime. compensation under sections 206 and 207 [Sections 6 and 7] of this Title or liquidated or other damages under this subsection due to such employee by an employer liable under the provisions of subdivision (b) of this section, unless such action is dismissed without prejudice to the request of the secretary. All sums so collected by the Minister of Labour on behalf of an employee in accordance with this subsection shall be kept in a special deposit account and paid directly to the employee or employees concerned by order of the Minister of Labour. Amounts that are not paid to an employee because he or she is unable to do so within three years are transferred to the United States Department of the Treasury as miscellaneous income. In deciding when an action is commenced by the Secretary of State for Labour under this subsection for the purposes of the limitation periods provided for in section 255(a) of this Title (section 6(a) of the Portal to Portal Act 1947), it shall be deemed to have been commenced in the case of an individual plaintiff on the date of the complaint if he is expressly named as a party applicant in the complaint.
or, if his name is not listed, on the later date on which his name is added as plaintiff in that action. A full-time lawyer hired by federal courts to legally defend defendants who cannot afford a lawyer. The judiciary administers the Federal Defence Counsel Programme in accordance with criminal law. In criminal law, the constitutional guarantee that an accused receives a fair and impartial trial. In civil law, the legal rights of a person who is confronted with an adverse act that threatens liberty or property. A court decision in a previous case with facts and points of law similar to a dispute currently pending in court. Judges generally « follow precedents, » that is, they use principles established in previous cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedents if a party can prove that the previous case was ill-decided or that it differs significantly from the current case. Any employer who infringes Article 206 (6) or Article 207 (7) of this Title shall be liable to the worker or workers concerned for the amount of their minimum wage or unpaid wages. their remuneration for unpaid overtime and, in addition, the same amount as lump sum damages. Any employer who violates the provisions of Section 215(a)(3) [Section 15(a)(3)] of this Title is liable for such legal or equitable remedies as may be reasonable to achieve the objectives of Section 215(a)(3) [Section 15(a)(3) of this Title, including, but not limited to, employment, reinstatement, promotion, and payment of lost wages and an additional amount equal to the lump sum amount.
Damages. An action in enforcement of the liability prescribed in any of the preceding sentences may be brought against any employer (including a public authority) in any federal or state court of competent jurisdiction by one or more employees for and on behalf of themselves and other employees who are in a similar situation. No employee may be a party to such an action unless he has given his written consent to become a party and such consent is filed with the court before which the action is brought. The court in such an action shall, in addition to any judgment rendered to the plaintiff(s), allow the defendant to pay reasonable attorneys` fees and costs of the action. The right under this subsection to bring an action by or on behalf of an employee and the right of any employee to become a plaintiff in such an action shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 [section 17] of this Title for: (1) withhold any further delay in the payment of the unpaid minimum wage; or the amount of unpaid overtime pay due to that employee under section 206 [section 6] or section 207 [section 7] of this title by an employer liable under the provisions of this subdivision, or (2) legal or equitable relief is sought for alleged violations of section 215(a)(3) [section 15(a)(3) of this title. A legal procedure to deal with the debt problems of individuals and companies; in particular, a case filed under one of the chapters of title 11 of the United States Code. The legal power of a court to hear and decide a particular type of case. It is also used as a synonym for jurisdiction, i.e. the geographical area over which the court has territorial jurisdiction to rule on cases. The Uniform Commercial Code also defines insolvency. Articles 1-201(23) of the UCC cover not only the insolvency code test, but also two insolvency « fairness tests ». A « person » – who, according to Article 1-201 (30), « includes a natural or legal person – may be insolvent if: a person « has ceased to pay its debts in the ordinary course of business or is unable to pay its debts as they fall due or is insolvent within the meaning of the Federal Bankruptcy Act ».
UCC Official Commentary 23 on §§ 1-201 states that these three definitions of insolvency « are explicitly established as alternative criteria and must be approached from a commercial perspective. » A written statement filed in court or an appeal that explains a party`s legal and factual arguments.
