Henriques Law & Mediation Group

Acquittal:  A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction.

Adversary proceeding:   A lawsuit arising in or related to a bankruptcy case that begins by filing a complaint with the court, that is, a “trial” that takes place within the context of a bankruptcy case.

Affidavit:A written or printed statement made under oath.

Alternative dispute resolution (ADR):A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.

Answer:  The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.

Appeal:  A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is “to appeal” or “to take an appeal.” One who appeals is called the “appellant;” the other party is the “appellee.”

Appellant: The party who appeals a district court’s decision, usually seeking reversal of that decision.

Appellate:about appeals; an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeals review the decisions of the U.S. district courts

Appellee:  The party who opposes an appellant’s appeal, and who seeks to persuade the appeals court to affirm the district court’s decision.

Arbitration:  Reference of a dispute to an impartial third person chosen by the parties to the dispute, who agree in advance to abide by the arbitrator’s award, issued after a hearing at which both parties have had an opportunity to be heard.

Assets: Property of all kinds, including real and personal, tangible and intangible

Bankruptcy: A legal procedure for dealing with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the United States Code (the Bankruptcy Code).

Bankruptcy court: The bankruptcy judges in regular active service in each district; a unit of the district court.

Bankruptcy estate: All interests of the debtor in property at the time of the bankruptcy filing. The estate technically becomes the temporary legal owner of all of the debtor’s property.

Bankruptcy petition:  A formal request for the protection of the federal bankruptcy laws. (There is an official form for bankruptcy petitions.)

Bankruptcy trustee:  A private individual or corporation appointed in all Chapter 7 and Chapter 13 cases to represent the interests of the bankruptcy estate and the debtor’s creditors.

Bench trial:  A trial without a jury, in which the judge serves as the fact-finder.

Brief:A written statement submitted in a trial or appellate proceeding that explains one side’s legal and factual arguments.

Burden of proof:  The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant’s guilt. (See standard of proof.)

Business bankruptcy:  A bankruptcy case in which the debtor is a business or an individual involved in business and the debts are for business purposes.

Case file: A complete collection of every document filed in court in a case.

Case law:   The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

Caseload:  The number of cases handled by a judge or a court.

Cause of action:   A legal claim.

Caveat emptor: let the buyer beware.

Chambers:  The offices of a judge and his or her staff.

Chapter 11:   A reorganization bankruptcy, usually involving a corporation or partnership. A Chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. Individuals or people in business can also seek relief in Chapter 11.

Chapter 12:  The chapter of the Bankruptcy Code providing for adjustment of debts of a “family farmer” or “family fisherman,” as the terms are defined in the Bankruptcy Code.

Chapter 13:  The chapter of the Bankruptcy Code providing for the adjustment of debts of an individual with regular income, often referred to as a “wage-earner” plan. Chapter 13 allows a debtor to keep property and use his or her disposable income to pay debts over time, usually three to five years.

Chapter 7:   The chapter of the Bankruptcy Code providing for “liquidation,” that is, the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors. In order to be eligible for Chapter 7, the debtor must satisfy a “means test.” The court will evaluate the debtor’s income and expenses to determine if the debtor may proceed under Chapter 7.

Claim:   A creditor’s assertion of a right to payment from a debtor or the debtor’s property.

Class action:  A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Clerk of court:   The court officer who oversees administrative functions, especially managing the flow of cases through the court. The clerk’s office is often called a court’s central nervous system.

Collateral: Property that is promised as security for the satisfaction of a debt.

Common law:  The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Complaint:  A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant

Consumer bankruptcy:   A bankruptcy case filed to reduce or eliminate debts that are primarily consumer debts.

Consumer debts: Debts incurred for personal, as opposed to business, needs

Contract:   An agreement between two or more people that creates an obligation to do or not to do a particular thing

Counsel:  Legal advice; a term also used to refer to the lawyers in a case.

Count: An allegation in an indictment or information, charging a defendant with a crime. An indictment or information may contain allegations that the defendant committed more than one crime. Each allegation is referred to as a count.

Court:  Government entity authorized to resolve legal disputes. Judges sometimes use “court” to refer to themselves in the third person, as in “the court has read the briefs.”

Court reporter:  A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

Creditor:  A person to whom or business to which the debtor owes money or that claims to be owed money by the debtor

Damages:   Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).

Deed: Conveyance of realty; a writing signed by grantor, whereby title to realty is transferred from one to another.

De facto:   Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law.

De jure: Latin, meaning “in law.” Something that exists by operation of law.

De novo:  Latin, meaning “anew.” A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge’s ruling.

Debtor: A person who has filed a petition for relief under the Bankruptcy Code.

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

Declaratory judgment:  A judge’s statement about someone’s rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.

Default judgment:  A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

Defendant:  An individual (or business) against whom a lawsuit is filed.  In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.

Deposition:  An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.

Discovery: Procedures used to obtain disclosure of evidence before trial.

Dismissal with prejudice: Court action that prevents an identical lawsuit from being filed later.

Dismissal without prejudice: Court action that allows the later filing.

Docket:  A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.

Due process:  In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property

Easement: a right of use over the property of another.

Equitable:  Pertaining to civil suits in “equity” rather than in “law.” In English legal history, the courts of “law” could order the payment of damages and could afford no other remedy (see damages). A separate court of “equity” could order someone to do something or to cease to do something (e.g., injunction). In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in “law” cases but not in “equity” cases.

Equity:  The value of a debtor’s interest in property that remains after liens and other creditors’ interests are considered. (Example: If a house valued at $360,000 is subject to a $300,000 mortgage, there is $60,000 of equity.)

Evidence:  Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.

Executor:  a person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his will.

Ex parte:  A proceeding brought before a court by one party only, without notice to or challenge by the other side.

Fee simple: also known asfeesimpleabsolute is an estate in land, a form of freehold ownership. It is a way that real estate may be owned in common law countries, and is the highest possible ownership interest that can be held in real property.

File: To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as acollateral for the loan.

Fraudulent transfer: A transfer of a debtor’s property made with intent to defraud or for which the debtor receives less than the transferred property’s value.

Garnishment: a statutory proceeding for collecting a monetary judgment on behalf of a plaintiff from a defendant.

Grantor:person or institution that makes a grant or conveyance

Grantee:a person to whom a grant or conveyance is made.

Gree:  satisfaction for an offense committed or injury done.

Ground Lease:  lease of vacant land; land exclusive of any buildings on it, or un-improved real property.

Guardian: One who is legally responsible for the care and management of the person or property of an incompetent or minor.

Gynecoracy:  Government by a woman; a state in which women are legally capable of the supreme command. (Go Britain)

Habendum clause:  formal words in deeds of conveyance, meaning to have and to hold. 

Habitability: condition of premises which permits inhabitant to live free of serious defects to health and safety. 

Hearsay:   Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.

Hearing:  proceeding with issues of fact or law to be tried.

Heir: beneficiary of an estate.

Holding Company: a company that confines its activities to owning stock in, and supervising management of other companies.

Holdover Tenant:  tenant who retains possession of property after the expiration of a lease.

Homeowner’s Association:  association of people who own homes in a given area, formed for the purpose of improving or maintaining the quality of the area.

Homestead: a dwellingwithitslandandbuildingsoccupied by theowner as a homeandexempted by a homesteadlawfromseizure or salefordebt.

Hostile Possession:  Willful possession of a property, asserted against the right of ownership of the property’s actual or record owner.

Hypothecate: to pledge property as security or collateral for a debt.

Immigration:  coming into a country of foreigners for purposes of permanent residence.

Impeachment: criminal proceeding against a public officer 

Indemnify: to restore the victim of a loss, by payment, repair or replacement.

Injunction:  A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.

In loco parentis:  in the place of a parent.

In personam:  against the person.

In rem: against the thing.

Interrogatories:  A form of discovery consisting of written questions to be answered in writing and under oath.

Issue:  The disputed point between parties in a lawsuit;  to send out officially, as in a court issuing an order.

Judge:  An official of the Judicial Branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers.

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

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.

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

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

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.

Kangaroo Court: sham legal proceedings where a person’s rights are totally disregarded.

Kickback: illegal payments of a portion of a price or fee.

Know: to have or possess knowledge

Knowledge: acquaintance with the fact or the truth.

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.

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.

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

Lis Pendens: a pending suit.  See Notice of Lis Pendens.

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

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.

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

Mortgage: an instrument in land created by a written instrument providing security for the performance of a duty or the payment of a debt.   Since most mortgages occur as a condition for new loan money, the word mortgage has become the generic term for a loan secured by real property.

Mortgage insurance:  an insurance policy designed to protect the mortgagee (lender) from any default by the mortgagor (borrower).

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

Negligence: failure to do something which a reasonable person, guided by ordinary consideration, would do; or doing something which a reasonable and prudent person would not do.

Notice of Lis Pendens:  a notice filed in the public records, warning that the title to certain property is in litigation.

Nepotism: appointment to office by reason of blood or marriage.

Non-profit corporation:  corporation where none of the income is distributed to  its members, directors or shareholders.

Notarial Will: will executed in the presence of two witnesses and as notary public.

Note: instrument containing an express and absolute promise of the maker to pay to a specified person, a definite sum of money at a specified time.

Novation: substitution of a new contract, debt or obligation for an existing one.

Nunc pro tunc: now for then; a thing done now, which shall have the same legal force and effect as if done at the time when it should have been done.

Occupant: person in possession.

Opinion: A judge’s written explanation of the decision of the court; a document prepared by an attorney embodying his understanding of the law as applicable to a state of facts.

Oral argument:   An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions

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

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.

Petit jury (or trial jury):  A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute.

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

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

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

Plea:   In a criminal case, the defendant’s statement pleading “guilty” or “not guilty” in answer to the charges. See also nolo contendere.

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

Precedent: A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court.

Pretrial conference:  A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule.

Procedure: The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

Promissory Note:  see Note.

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

Quantum merit: as much as he deserves.

Quitclaim deed: conveyance operating as a release; intending to pass any title, interest or claim the grantor may have but not professing that such title is valid nor containing any warranty or covenants of title.

Ratify: approve or sanction, make valid or confirm. 

Real Estate: Land and anything permanently affixed to the land, such as buildings and fences. 

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

Reformation: Equitable remedy used to reframe written contracts to reflect the accurate details, when through mistake or fraud the writing as stands does not reflect the agreement actually made.

Remand: Send back.

Remedy: the means by which a right is enforced or the violation of a right prevented, redressed or compensated.

Res ipsa loquitur: the thing speaks for itself.

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

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

Satisfaction: the discharge of an obligation by paying a party that which is due.

Secured creditor: creditor who holds some special assurance of payment.

Seisin: possession of real property under claim of freehold estate.

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

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.

Sherriff’s deed: deed given at sheriff’s sale, document giving ownership rights.

Spendthrift: one who spends money in a wasteful manner.

Statute:  A law passed by a legislature.

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.

Stellionataire: one who mortgages property to which he has not title.

Suasponte; 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.

Subordination:The act or process by which a person’s rights or claims are ranked below those of others.

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

Subpoena ducestecum: A command to a witness to appear and produce documents

Summons: instrument used to commence a civil action, a means of acquiring jurisdiction over a party.

Tax certificate: Instrument issued to buyer of property at a tax sale which entitles the holder to the property.

Tax deed: proof of ownership given to the purchaser after the land has been taken for failure to pay taxes.

Tenancy: an interest in real estate, usually of possession, not ownership.

Testacy: living a will at one’s death – as opposed to intestacy.

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

Title Insurance: a form of indemnity insurance predominantly found in the United States which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans.

Tort:A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.

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

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

Undue influence: improper or wrongful persuasion whereby the will of one is overpowered or induced to act in a manner he would not have if left to act freely.

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

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.

Usury: charging interest rates in excess of permissible rates.

Vagrant:  idle person with no visible means of support who wonders from place to place.

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.

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.

Void: having no force or effect, without legal efficacy, incapable of being enforced by law.

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

Waiver: intentional relinquishment of a known right.

Warranty deed: deed in which grantor warrants good clear title.

Waste: abuse or destruction of property, spoilage. 

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

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

Writ of entry: real action to recover possession of land where tenant has been wrongfully dispossessed.

Xenodochium: an inn allowed by public license; or hospital where the sick and infirm are cared for.

Yield: to give up, relinquish or surrender

Zealous: having passionate energy for a belief or purpose; an eagerness to see or get something done.