Common Legal Definitions
Administrative law: The area of law that concerns government agencies.
Affirm: To confirm, ratify, or otherwise approve a lower court’s decision on appeal. To solemnly declare that certain statements are true or that one will testify truthfully. To make a solemn promise.
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.
Arraignment: A proceeding in which a criminal defendant is brought into court, told of the charges in an indictment or information, and asked to plead guilty or not guilty.
Automatic stay: An injunction that automatically stops lawsuits, foreclosures, garnishments, and most collection activities against the debtor the moment a bankruptcy petition is filed.
Bankruptcy code: The informal name for title 11 of the United States Code (11 U.S.C. §§ 101-1330), the federal bankruptcy law.
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.
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.
Cause of action: A legal claim; the reason for which a plaintiff files a complaint or suit against someone. This can be negligence, breach of contract, malpractice or defamation, to name a few. A cause of action is divided into elements, and each element must be proved to win the case.
Chain of Title: The sequence of historical transfers of title to a property. The “chain” runs from the present owner back to the original owner of the property. In situations where documentation of ownership is important, it is often necessary to reconstruct the chain of title.
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 13 trustee: A person appointed to administer a Chapter 13 case. A Chapter 13 trustee’s responsibilities are similar to those of a Chapter 7 trustee; however, a Chapter 13 trustee has the additional responsibilities of overseeing the debtor’s plan, receiving payments from debtors, and disbursing plan payments to creditors.
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.
Chapter 7 trustee: A person appointed in a Chapter 7 case to represent the interests of the bankruptcy estate and the creditors. The trustee’s responsibilities include reviewing the debtor’s petition and schedules, liquidating the property of the estate, and making distributions to creditors. The trustee may also bring actions against creditors or the debtor to recover property of the bankruptcy estate.
Civil law: 1) A generic term for all non-criminal law, usually as it applies to settling disputes between private citizens or entities. 2) A body of laws and legal concepts derived from Roman law instead of English common law. (English common law is the basis of state legal systems in the U.S., with the exception of Louisiana.)
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.
Community service: A special condition the court imposes that requires an individual to work – without pay – for a civic or nonprofit organization.
Compensatory damages: Damages that are recovered for injury or economic loss. For instance, if someone is injured in a car accident and the party who injures them has to pay compensatory damages, the party at fault must cover cost of things such as the ambulance, doctors’ bills, hospital stays, medicine, physical therapy and lost wages.
Complaint: A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant.
Concurrent sentence: Prison terms for two or more offenses to be served at the same time, rather than one after the other. Example: Two five-year sentences and one three-year sentence, if served concurrently, result in a maximum of five years behind bars.
Confirmation: Approval of a plan of reorganization by a bankruptcy judge.
Consecutive sentence: Prison terms for two or more offenses to be served one after the other. Example: Two five-year sentences and one three-year sentence, if served consecutively, result in a maximum of 13 years behind bars.
Constitutional law: Law prescribed by the written federal and state constitutions, as well as the interpretation and implementation of this law.
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.
Contingent claim: A claim that may be owed by the debtor under certain circumstances, e.g., where the debtor is a cosigner on another person’s loan and that person fails to pay.
Contract: An agreement between two or more people that creates an obligation to do or not to do a particular thing. This often involves a promise of something in return for something of value. There are both written and oral contracts, though in some states oral contracts have little or no standing.
Conviction: A judgment of guilt against a criminal defendant.
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.
Credit counseling: Generally refers to two events in individual bankruptcy cases: (1) the “individual or group briefing” from a nonprofit budget and credit counseling agency that individual debtors must attend prior to filing under any chapter of the Bankruptcy Code; and (2) the “instructional course in personal financial management” in chapters 7 and 13 that an individual debtor must complete before a discharge is entered. There are exceptions to both requirements for certain categories of debtors, exigent circumstances, or if the U.S. trustee or bankruptcy administrator have determined that there are insufficient approved credit counseling agencies available to provide the necessary counseling.
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).
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: In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.
Demurrer (dee-muhr-ur): A formal response to a complaint filed in a lawsuit, pleading for dismissal and saying, in effect, that even if the facts are true, there is no legal basis for a lawsuit. Examples include a missing necessary element of fact, or a complaint that is unclear. The judge can agree and “leave to amend,” giving the claimant the opportunity to amend the complaint. If it is not amended to the judge’s satisfaction, the demurrer is granted. (Some states use a motion to dismiss.)
Depose: To testify or give under oath or sworn affidavit.
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.
Diligence: Reasonable care or attention to a matter; for instance, looking both ways before proceeding after stopping at a stop sign, washing your hands before cooking food in a restaurant or operating in a hospital or checking brakes and other mechanical components on tour buses at regular intervals. Due diligence denotes what a normal, responsible person would do under the same conditions.
Discharge: A release of a debtor from personal liability for certain dischargeable debts. Notable exceptions to dischargeability are taxes and student loans. A discharge releases a debtor from personal liability for certain debts known as dischargeable debts and prevents the creditors owed those debts from taking any action against the debtor or the debtor’s property to collect the debts. The discharge also prohibits creditors from communicating with the debtor regarding the debt, including through telephone calls, letters, and personal contact.
Dischargeable debt: A debt for which the Bankruptcy Code allows the debtor’s personal liability to be eliminated.
Disclosure statement: A written document prepared by the chapter 11 debtor or other plan proponent that is designed to provide “adequate information” to creditors to enable them to evaluate the chapter 11 plan of reorganization.
Discovery: Procedures used to obtain disclosure of evidence before trial and includes admissions, interrogatories and requests for production.
Dismissal with prejudice: Court action that prevents an identical lawsuit from being filed later.
Dismissal without prejudice: Court action that allows the later filing.
Disposable income: Income not reasonably necessary for the maintenance or support of the debtor or dependents. If the debtor operates a business, disposable income is defined as those amounts over and above what is necessary for the payment of ordinary operating expenses.
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.
En banc: French, meaning “on the bench.” All judges of an appellate court sitting together to hear a case, as opposed to the routine disposition by panels of three judges. In the Ninth Circuit, an en banc panel consists of 11 randomly selected judges.
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.
Equitable Estoppel: A bar to a party from asserting a legal claim or defense that is contrary or inconsistent with his or her prior action of conduct.
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 $60,000 is subject to a $30,000 mortgage, there is $30,000 of equity.)
Evidence: Information presented in testimony or in documents that is used to persuade the factfinder (judge or jury) to decide the case in favor of one side or the other.
Ex parte: A proceeding brought before a court by one party only, without notice to or challenge by the other side.
Exclusionary rule: Doctrine that says evidence obtained in violation of a criminal defendant’s constitutional or statutory rights is not admissible at trial.
Exculpatory evidence: Evidence indicating that a defendant did not commit the crime.
Executory contracts: Contracts or leases under which both parties to the agreement have duties remaining to be performed. If a contract or lease is executory, a debtor may assume it (keep the contract) or reject it (terminate the contract).
Exempt assets: Property that a debtor is allowed to retain, free from the claims of creditors who do not have liens on the property.
Felony: A serious crime punishable by death or at least one year in a state or federal prison. Felonies include arson, rape, perjury and homicide. When theft is involved, the value of that which was stolen determines whether the offense is considered a misdemeanor or felony.
Habeas corpus: Latin, meaning “you have the body.” A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner’s continued confinement. Federal judges receive petitions for a writ of habeas corpus from state prison inmates who say their state prosecutions violated federally protected rights in some way.
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
Impeachment: 1. The process of calling a witness’s testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be “impeached;” 2. The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government, who are then tried by the Senate.
In forma pauperis: “In the manner of a pauper.” Permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them.
Inculpatory evidence: Evidence indicating that a defendant did commit the crime.
Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
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.
Interrogatories: A form of discovery consisting of written questions to be answered in writing and under oath.
Issue: 1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.
Joint administration: A court-approved mechanism under which two or more cases can be administered together. (Assuming no conflicts of interest, these separate businesses or individuals can pool their resources, hire the same professionals, etc.)
Joint petition: In bankruptcy it means one bankruptcy petition filed by a husband and wife together.
Judgment: The official decision of a court finally resolving the dispute between the parties to the lawsuit.
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.
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.
Laws: A system of regulations governing the conduct of a community, state, society or nation in order to provide consistent order and justice. In the United States, laws can be statutes, ordinances or regulations, and are usually enacted by the legislative branch at a state or federal level, or by a branch of the government with authorization from a law already established.
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.
Liquidation: The sale of a debtor’s property with the proceeds to be used for the benefit of creditors.
Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
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.
Malfeasance: Doing something illegal or morally wrong. Malfeasance includes dishonesty and abuse of authority.
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.
Mens rea (menz ray-ah): Latin for a “guilty mind”; mens rea is used to describe a culpable state of mind, the criminal intent of the individual when committing a criminal act. For some crimes, this intent must have been present for a person to be guilty of the crime.
Misdemeanor: An offense punishable by one year of imprisonment or less. See also felony.
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.
Motion: A request by a litigant to a judge for a decision on an issue relating to the case.
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 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.
No-asset case: A Chapter 7 case in which there are no assets available to satisfy any portion of the creditors’ unsecured claims.
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.
Non-dischargeable 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 over-payments, 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 non-dischargeable only if a creditor timely files and prevails in a non-dischargeability action.
Nonexempt assets: Property of a debtor that can be liquidated to satisfy claims of 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.
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.
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.
Oral argument: An opportunity for lawyers to summarize their position before the court and also to answer the judge’s’ questions.
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.
Parole: The release of a prison inmate – granted by the U.S. Parole Commission – after the inmate has completed part of his or her sentence in a federal prison. When the parolee is released to the community, he or she is placed under the supervision of a U.S. probation officer.
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.
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.
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.
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. 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.
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.
Presentence report: A report prepared by a court’s probation officer, after a person has been convicted of an offense, summarizing for the court the background information needed to determine the appropriate sentence.
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. Typically, the judge and the parties also discuss the possibility of settlement of the case.
Prima facie (pry-mah fay-shah): Latin for “at first look,” or “on its face,” prima facie refers to what can be presumed after the first disclosure.
Prima facie case: A case where, upon first look, the facts themselves prove the case.
Priority claim: An unsecured claim that is entitled to be paid ahead of other unsecured claims that are not entitled to priority status. Priority refers to the order in which these unsecured claims are to be paid.
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.”
Pro se: Representing oneself. Serving as one’s own lawyer.
Pro tem: Temporary.
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.
Procedure: The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.
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.)
Property of the estate: All legal or equitable interests of the debtor in property as of the commencement of the case.
Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government
Provisional remedy: A temporary court order to protect someone from further or irreparable damage while further legal action is pending. For example, a temporary restraining order is a provisional remedy to help keep someone safe until a hearing to decide if a permanent restraining order is needed; likewise, a temporary injunction to stop the destruction of a building can keep it from being destroyed while the court decides whether it is a landmark.
Punitive damages: Damages awarded over and above compensatory damages for punishment. If the act causing the injury was committed out of negligence or malice, punitive damages serve not only as a punishment, but as an example or deterrent to others. It also helps put the injured party on a level playing field. For instance, an individual who loses a leg when hit by a drunk driver cannot be awarded a new leg, but a monetary award can help that person face the resultant obstacles.
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.
Record: A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.
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.
Remand: To send back.
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.
Schedules: Lists submitted by the debtor along with the bankruptcy petition (or shortly thereafter) showing the debtor’s assets, liabilities, and other financial information. (There are official forms a debtor must use.)
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.
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.
Sentence: The punishment ordered by a court for a defendant convicted of a crime.
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.
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.
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.
Stare decisis: Latin for “to stand by things decided,” to adhere to precedents of earlier cases as sources of law. When an issue has already been ruled upon by a court, other cases involving the same issue must receive the same response from that court or lower courts.
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.)
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.
Statute: A written law passed by Congress or another legislative body.
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.
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.
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 duces tecum: A command to a witness to appear and produce documents.
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.
Testimony: Evidence presented orally by witnesses during trials or before grand juries.
Title: The legal basis ownership of real or personal property or a document that serves as serves as evidence of this ownership. Deeds for real estate, and titles for cars and boats are examples of titles.
Title abstract: A history of ownership that establishes the present state of a title.
Title search: An examination of public records to determine the state of a title and confirm that the seller of a property is its legal owner. A cloud on the title such as a lien, an unrecorded owner or differing property descriptions on previous deeds can be a reason to cancel a purchase on a property.
Tort: From the French word for “wrong,” a tort is a wrongful or illegal act, whether intentional or accidental, in which an injury occurs to another. An intentional tort may also be a crime, such as battery, fraud or theft. Tort law is one of the largest areas of civil law.
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
Trustee – bankruptcy: 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.
Undersecured claim: A debt secured by property that is worth less than the amount of the debt.
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.
Unlawful detainer action: A lawsuit brought by a landlord against a tenant to evict the tenant from rental property – usually for nonpayment of rent.
Unliquidated claim: A claim for which a specific value has not been determined.
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.)
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.
Uphold: The appellate court agrees with the lower court decision and allows it to stand.
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.
Voir dire: Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.
Voluntary transfer: A transfer of a debtor’s property with the debtor’s consent.
Wage garnishment: A non-bankruptcy 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.
Warrant: Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.
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 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 of mandamus: An order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.