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Thursday, February 28, 2008

What is Bankruptcy?

Bankruptcy is a legal proceeding in which people who are unable to pay their 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 is a way to instantly stop all of your creditors from trying to collect debts from you, at least until your debts are sorted out according to the law. Which means if you are experiencing a lot of nasty phone calls, they will stop.

According to Tripp Finley, Esq. of Diamond McCarthy Law Firm, bankruptcy can make it possible for you to eradicate the legal obligation to pay most or all of your debts. This is called a discharge of debts. It is designed to give you a fresh financial start.

Bankruptcy can stop foreclosure on your house or mobile home and provide you the opportunity to catch up on missed payments. However, bankruptcy does not automatically eliminate mortgages and other liens on your property without payment.
It can prevent repossession of a car or other property, or force the creditor to return property even after it has been repossessed.

It can also stop wage garnishment, debt collection harassment, and similar creditor actions to collect a debt. Restore or prevent termination of utility service. Allow you to challenge the claims of creditors who have committed fraud or who are otherwise trying to collect more than you really owe.

But bankruptcy cannot fix every financial problem. And it may not be the right course of action for you. In bankruptcy, it is usually not possible to eliminate certain rights of "secured" creditors.

According to Tripp Finley, Esq. of Diamond McCarthy Law Firm, a "secured" creditor has taken a mortgage or other lien on property as collateral for the loan. Common examples are car loans and home mortgages. You can force secured creditors to take payment over time in the bankruptcy process and bankruptcy can eliminate your obligation to pay any additional money if your property is taken. However, you generally cannot keep the collateral unless you continue to pay the debt.

Bankruptcy also cannot discharge certain types of debts singled out by the bankruptcy law for special treatment such as child support, alimony, some student loans, court restitution orders, criminal fines, and some taxes.

Protect cosigners on your debts. When a relative or friend has cosigned a loan, and the consumer discharges the loan in bankruptcy, the cosigner may still have to repay all or part of the loan.

Different types of bankruptcy include:

Chapter 7-which is known as straight or liquidation bankruptcy. It requires a debtor to give up property, which exceeds certain limits called exemptions, so that the property can be sold to pay creditors.
Chapter 11-which is know as reorganization, is used by business and a few individual debtors whose debts are very large.
Chapter 12-is reserved for family farmers.
Chapter 13-is called debt adjustment and it requires a debtor to file a plan to pay debts or parts of debts from current income.

Most people filing bankruptcy will choose to file under either chapter 7 or chapter 13. Either type of case may be filed individually or by a married couple filing jointly.

As with any area of the law, it is important to carefully select an attorney who will respond to your personal situation. The attorney should not be too busy to meet you individually and to answer questions as necessary.

The best way to find a trustworthy bankruptcy attorney is to seek recommendations from family, friends or other members of the community, especially any attorney you know and respect. You should carefully read retainers and other documents the attorney asks you to sign. You should not hire an attorney unless he or she agrees to represent you throughout the case.

In bankruptcy, as in all areas of life, remember that the person advertising the cheapest rate is not necessarily the best. Many of the best bankruptcy lawyers do not advertise at all.

Monday, February 25, 2008

Arley "Trip" D. Finley-Attorney-Diamond McCarthy LLP

Trip Finley, a founding partner of Diamond McCarthy Taylor Finley & Lee, LLP, currently assists us as Senior Counsel. He has extensive experience in representing parties in a wide variety of complex financial disputes, including matters involving securities fraud, lender liability, fraudulent transfer and bankruptcy litigation.

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Sunday, February 24, 2008

Ladd Hirsch-Attorney--Diamond McCarthy LLP

Ladd Hirsch is a business-oriented, dynamic trial attorney with more than 22 years experience representing clients in a wide variety of complex business litigation matters and arbitration proceedings. Ladd joined Diamond McCarthy as a partner in 2006.

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Lisa Tsai-Attorney-Diamond McCarthy, LLP

Lisa Tsai is a partner who joined Diamond McCarthy in June 2004. Prior to joining the firm, Lisa served as a litigation associate at Latham & Watkins LLP in Los Angeles, California. Lisa has represented clients in a wide variety of complex business litigation, including fiduciary litigation, business and partnership disputes, just to name a few.

read more | digg story

Arley "Trip" D. Finley-Attorney-Diamond McCarthy LLP

Trip Finley, a founding partner of Diamond McCarthy Taylor Finley & Lee, LLP, currently assists us as Senior Counsel. He has extensive experience in representing parties in a wide variety of complex financial disputes, including matters involving securities fraud, lender liability, fraudulent transfer and bankruptcy litigation.

read more | digg story

Thursday, February 7, 2008

Diamond McCarthy LLP

An important aspect of writing and/or marketing is learning how to write a press release. Below is an example of a Press Release, it is key to state your purpose for the release, give as much detail as possible without being too wordy. There are numerous Internet sites as well as the AP that you can distribute your Press Release too. Verify all of your facts:

DIAMOND MCCARTHY LAW FIRM OPENS NEW OFFICE IN NEW YORK

Diamond McCarthy, a boutique law firm specializing in the investigation, litigation, and cost-effective resolution of complex business disputes on a local, national, and international stage. announces the opening of its new office in New York City. Taking almost 10,000 square feet on the 39th floor of the New York Times Building, the groundbreaking new headquarters of the New York Times on Manhattan's West Side.

As Managing Partner Allan Diamond explained, "We wanted our New York office to reflect our firm's reputation and values." The New York Times Building has been heralded as architecturally innovative and part of the eco-friendly building revolution, which is consistent with our firm's reputation for legal innovation. Diamond McCarthy's Law offices have floor to ceiling unobstructed panoramic views looking to the East, South and West at the Chrysler Building, the Empire State Building, southern Manhattan's bridges, the Hudson River and the Statute of Liberty They are quite simply, breath-taking.

Founded by a group of attorneys, Diamond McCarthy is committed to providing innovative legal solutions to their clients' most complex problems - wherever those problems arise. From their inception, they have addressed the most significant and complicated issues facing their clients across the Continent, through the Caribbean, and into Europe.

Diamond McCarthy's national and international presence continues to expand, with their international docket including objectives for clients from the United Kingdom, the Netherlands, the Cayman Islands, the Republic of Colombia, and the Philippines, as well as their domestic docket that includes matters pending before federal and state trial and appellate courts from coast to coast. No matter where their clients may be or where their problems may arise, Diamond McCarthy is committed to solving its clients' problems and getting effective results.

Richard Janvey, who has been practicing in New York for the past 35+ years (formerly with Debevoise & Plimpton, LLP, Arthur Young, and his own firm, Janvey, Gordon et al), has become a partner at Diamond McCarthy and is heading up Diamond McCarthy's New York office. Joining Richard is Joan Secofsky, also with 35+ years of experience (formerly with Skadden Arps, Proskauer Rose and others). For more information, please see their individual biographies at diamondmccarthy.com.

Consistent with Diamond McCarthy's "single firm approach," its New York office already is involved in all aspects of the Firm's complex commercial litigation/trial and insolvency practice. "The demands of our international trial practice require that we approach case staffing on a firm-wide basis, rather than office by office," Diamond said. "That permits us to devote our resources to the cases for which they are best suited and most needed, rather than being hindered by physical geography." As Janvey added, "Our New York office provides Diamond McCarthy with valuable new resources, while permitting the Firm to better serve its clients in New York and abroad."

The Firm's sub-prime litigation task group, formed earlier this year, will be collaborating and working with the New York office, and the Firm currently is planning to launch one or more new sub-practice group areas to be spearheaded out of the New York office.

620 Eighth Avenue (between 40th & 41st Streets)
39th Floor
New York, New York
Telephone number (212) 430-5400

Wednesday, February 6, 2008

Diamond McCarthy LLP

What is Texas Appellate Law?

The following is an overview of the Texas appellate law as well as the Fifth Circuit appellate law. Every step of an appeals process can involve numerous and complex issues or they can be resolved rather simply. The following overview is intended to be simply that, an overview.

In Texas courts a decision by a district judge can be appealed to the Court of Appeals and then to the Texas Supreme Court. If a case is in federal court, a decision by the federal district court can be appealed to the 5th Circuit and then the United States Supreme Court.

All cases begin in a trial court, before they ever reach an appellate court. The trial judge has the ability to dismiss the case on the pleadings early in the litigation as well as dismissing it after a summary judgment motion well into the litigation. The case has the potential of being tried before a judge or a jury and a final judgment could be entered after a full trial. And in some cases, the trial judge will enter a judgment that is different than the jury's verdict. But at some point, the proceedings in the trial court will come to an end. And at that point, a party unhappy with the outcome, typically the losing side, but sometimes even the winning side, has the opportunity to appeal.

An appeal is placed in motion with the filing of the notice of appeal in the trial court. The party appealing, which is referred to as the appellant, must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.

Appellate Panel and Oral Argument
An appellate panel decides appeals. The Texas Court of Appeal and the Fifth Circuit decides cases in three-judge panels. These judges are chosen randomly from the pool of available appellate judges on the courts. In appeals to state supreme courts and the U.S. Supreme Court, the entire court usually hears the appeal. State supreme courts typically have seven justices, and the U.S. Supreme Court has nine justices.

Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies tremendously between different courts. The Texas Courts of Appeal typically will set oral argument a few months after the close of briefing; the Fifth Circuit often takes well over a year to set oral argument. The Fifth Circuit, however, often decides cases without oral argument.

The oral argument in the Texas Court of Appeal is at most 30 minutes and is usually about 5 - 15 minutes. The Fifth Circuit usually sets oral argument at 10 minutes, but sometimes 20 minutes. By the time of oral argument, the judges on most appellate courts will have read the briefs, had at least one of their research attorneys or clerks prepare a bench memorandum discussing the issues, and often discussed it among themselves.

The lawyers at oral argument usually focus on just the most important aspects of their case, and the judges will frequently ask questions. This is not the time to reargue the entire case.

At the close of oral argument the case is submitted to the appellate court for a decision.

Briefing
In a standard appeal process, the parties will file a total of three briefs with the court.

The appellant begins with the ‘opening brief.’ The appellant's opening brief will explain the facts and procedural history of the case, and then explain what went wrong in the trial court and why the appellate court should reverse the earlier decision.

Next, the non-appelling party, who is called the appellee, will file a responsive brief. In this brief, the appellee or respondent basically explains the facts and the procedural history of the case and then argues why the trial court reached the right result and why the appellate court should not reverse the decision.

Finally, the appellate can file a reply brief. In this brief, the appellant has the opportunity to argue why the respondent's claims are wrong. However, the appellant may not make any new legal argument in the reply brief; the appellate can only "reply" to the respondent.

All briefs must contain proper citations to legal authorities (cases, statutes, etc.) and proper citations to the appellate record.

Standards of Appellate Review
An appeal does not mean that a new trial has been granted. The appellate courts do not retry cases or hear new evidence, they do not even hear new legal arguments. Instead, appellate courts review what occurred in the trial court to see if the proper procedures have been followed and the proper law has been applied. Because of the restricted nature of this review, the issues that are raised on appeal are normally significantly different from those that are raised at trial.

In most cases, the appellate court will turn to the trial court or jury on factual issues. However, the appellate court determines and decides the definition of the law. On issues of law, the interpretation of prior case law, or a statute, or the Constitution, the appellate court will not defer to the trial court but will instead independently decide the issue.

On an appeal if there is a pre-trial dismissal after a summary judgment motion or a demurrer, in most of these situations, the appellate court will review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.

On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial which means the outcome would have been different during the trial. It should be noted that minor legal errors are normally not reason enough for a reversal. This rule is often referred to as the harmless error rule.

Decision
The appellate panel issues a written opinion which explains how it came to the decision that it did. Similar to the time between briefing and oral argument, the time between oral argument and the written decision can vary greatly between different courts. The Texas Court of Appeal has 90 days to issue an opinion, although they have the option of resubmitting the case and extending their time by 90days. The Fifth Circuit has no deadline, and the time can vary tremendously.

If the appellate court deems it appropriate, the written opinion will be published in the official reports and will be binding authority for litigants in the future.

Rehearing by the Appellate Court
Any party that is dislikes or is disappointed with the opinion has a brief time window in which to request that the appellate court rehear the case. (When the time window closes, the appellate court loses jurisdiction to rehear the case.) Because of this, these petitions are almost never granted. If the arguments have already been made and considered, the court will more than likely not consider them again. And if the arguments have not already been made, the court probably won’t consider new argument.

But, in very rare cases, the appellate court may have misunderstood the law or the applicable facts of the case. (Note: this is not the same as understanding but disagreeing with a party's claims about the law and the facts of the case.) If this is the situation, the appellate court has discretion to rehear the case.

Review by a Higher Court
A party who is dissatisfied with the results on appeal can also petition a higher appellate court to review the case. In Texas, this would be the Texas Supreme Court, and in the Fifth Circuit, it is the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the Texas courts.)

With a few exceptions (like death penalty appeals), the Texas and U.S. Supreme Courts are not required to take any particular case; they choose what cases they will decide. The courts generally do not view themselves as simply providing a second layer of appellate review. Instead, they view themselves as insuring uniformity in the law in important issues. As a result, the Texas and U.S. Supreme Courts are likely to take cases where the lower courts have reached different conclusions on the same issue. They are not likely to take a case merely because the appellate court reached the wrong result.

Consequently, the petition asking the higher court to take review must be carefully drafted with this in mind.

Interlocutory Appeals and Appellate Writs
Most appeals involve cases that have been concluded in the trial court, but there are times when a party can appeal from a trial court order before the case is over. In the Fifth Circuit, these are called interlocutory appeals. In the Texas Court of Appeal, these are technically not appeals at all, but are original proceedings, called writ petitions, asking the Court of Appeal to issue an order (or writ) directing the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.

That defines what Texas Appellate Law is; I’d like to thank Diamond McCarthy LLP for taking the time to answer my questions as I wrote this piece. If you have further questions or inquiries you should speak with a lawyer in your area today or check with a law library in Texas.

Monday, February 4, 2008

Diamond McCarthy LLP

An important aspect of writing and/or marketing is learning how to write a press release. Below is an example of a Press Release, it is key to state your purpose for the release, give as much detail as possible without being too wordy. There are numerous Internet sites as well as the AP that you can distribute your Press Release too. Verify all of your facts:

DIAMOND MCCARTHY LAW FIRM OPENS NEW OFFICE IN NEW YORK

Diamond McCarthy, a boutique law firm specializing in the investigation, litigation, and cost-effective resolution of complex business disputes on a local, national, and international stage. announces the opening of its new office in New York City. Taking almost 10,000 square feet on the 39th floor of the New York Times Building, the groundbreaking new headquarters of the New York Times on Manhattan's West Side.

As Managing Partner Allan Diamond explained, "We wanted our New York office to reflect our firm's reputation and values." The New York Times Building has been heralded as architecturally innovative and part of the eco-friendly building revolution, which is consistent with our firm's reputation for legal innovation. The Firm's offices have floor to ceiling unobstructed panoramic views looking to the East, South and West at the Chrysler Building, the Empire State Building, southern Manhattan's bridges, the Hudson River and the Statute of Liberty They are quite simply, breath-taking.

Founded by a group of attorneys, Diamond McCarthy is committed to providing innovative legal solutions to their clients' most complex problems - wherever those problems arise. From their inception, they have addressed the most significant and complicated issues facing their clients across the Continent, through the Caribbean, and into Europe.

Their national and international presence continues to expand, with their international docket including objectives for clients from the United Kingdom, the Netherlands, the Cayman Islands, the Republic of Colombia, and the Philippines, as well as their domestic docket that includes matters pending before federal and state trial and appellate courts from coast to coast. No matter where their clients may be or where their problems may arise, Diamond McCarthy is committed to solving its clients' problems and getting effective results.

Richard Janvey, who has been practicing in New York for the past 35+ years (formerly with Debevoise & Plimpton, LLP, Arthur Young, and his own firm, Janvey, Gordon et al), has become a partner in the Firm and is heading up Diamond McCarthy's New York office. Joining Richard is Joan Secofsky, also with 35+ years of experience (formerly with Skadden Arps, Proskauer Rose and others). For more information, please see their individual biographies at diamondmccarthy.com.

Consistent with Diamond McCarthy's "single firm approach," its New York office already is involved in all aspects of the Firm's complex commercial litigation/trial and insolvency practice. "The demands of our international trial practice require that we approach case staffing on a firm-wide basis, rather than office by office," Diamond said. "That permits us to devote our resources to the cases for which they are best suited and most needed, rather than being hindered by physical geography." As Janvey added, "Our New York office provides Diamond McCarthy with valuable new resources, while permitting the Firm to better serve its clients in New York and abroad."

The Firm's sub-prime litigation task group, formed earlier this year, will be collaborating and working with the New York office, and the Firm currently is planning to launch one or more new sub-practice group areas to be spearheaded out of the New York office.

620 Eighth Avenue (between 40th & 41st Streets)
39th Floor
New York, New York
Telephone number (212) 430-5400