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Averment Law and Legal Definition
Averment is the positive declaration or assertion of fact. Averment is the affirmation or allegation in a pleading. An averment that alleges something unnecessary is an immaterial averment.
an allegation in pleadings.
Collins Dictionary of Law © W.J. Stewart, 2006
AVERMENT, pleading. Comes from the Latin verificare, or the French averrer, and signifies a positive statement of facts in opposition to argument or inference. Cowp. 683, 684.
2. Lord Coke says averments are two-fold, namely, general and particular. A general averment is that which is at the conclusion of an offer to make good or prove whole pleas containing new affirmative matter, but this sort of averment only applies to pleas, replications, or subsequent pleadings for counts and a vowries which are in the nature of counts, need not be averred, the form of such averment being et hoc paratus. est verificare.
3. Particular averments are assertions of the truth of particular facts, as the life of tenant or of tenant in tail is averred: and, in these, says Lord Coke, et hoc, &c., are not used. Co. Litt. 362 b. Again, in a particular averment the party merely protests and avows the truth of the fact or facts averred, but in general averments he makes an offer to prove and make good by evidence what he asserts.
4. Averments were formerly divided into immaterial and impertinent; but these terms are now treated as synonymous. 3 D. & R. 209. A better division may be made of immaterial or impertinent averments, which are those which need not be stated, and, if stated, need not be proved; and unnecessary averments, which consist of matters which need not be alleged, but if alleged, must be proved. For example, in an action of assumpsit, upon a warranty on the sale of goods, allegation of deceit on the part of the seller is impertinent, and need not be proved. 2 East, 446; 17 John. 92. But if in an action by a lessor against his tenant, for negligently keeping his fire, a demise for seven years be alleged, and the proof be a lease at will only, it will be a fatal variance; for though an allegation of tenancy generally would have been sufficient, yet having unnecessarily qualified it, by stating the precise term, it must be proved as laid. Carth. 202.
5. Averments must contain not only matter, but form. General averments are always in the same form. The most common form of making particular averments is in express and direct words, for example: And the party avers or in fact saith, or although, or because, or with this that, or being, &c. But they need not be in these words, for any words which necessarily imply the matter intended to be averred are sufficient. See, in general, 3 Vin. Abr. 357 Bac. Abr. Pleas, B 4 Com. Dig. Pleader, C 50, C 67, 68, 69, 70; 1 Saund. 235 a, n. 8 3 Saund. 352, n. 3; 1 Chit. Pl. 308; Arch. Civ. Pl. 163; Doct. Pl. 120; 1 Lilly's Reg. 209 United States Dig. Pleading II (c); 3 Bouv. Inst. n. 2835-40.
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What is 'Collateral'
Collateral is a property or other asset that a borrower offers as a way for a lender to secure the loan. If the borrower stops making the promised loan payments, the lender can seize the collateral to recoup its losses. Since collateral offers some security to the lender should the borrower fail to pay back the loan, loans that are secured by collateral typically have lower interest rates than unsecured loans. A lender's claim to a borrower's collateral is called a lien.
BREAKING DOWN 'Collateral'
The type of collateral for a loan may be predetermined based on the loan type, such as with a mortgage or an auto loan, or may be flexible, such as a collateralized personal loan. For a loan to be considered secure, the value of the collateral must meet or exceed the amount remaining on loan.
Secured loans are less risky to lenders since the property gives the borrower a compelling reason to continue payment. If a borrower fails to make necessary payments, the lending institution can repossess the property to cover the remainder of the loan.
For a mortgage, the collateral is the house purchased with the funds from the mortgage. If payments on the debt cease, the lender can take possession of the house through a process called foreclosure. Once the property is in the lender’s possession, the lender can sell the property to get back the remaining principal on the prior loan.
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DEFINITION of 'Pledging Requirement'
Any legal or bureaucratic requirement that securities be pledged as collateral for public fund deposits or other specific deposits. These securities must be marketable and trade actively. Treasury securities are usually pledged at full face value, while banker's acceptances and commercial paper are taken at 90% of their face value.
1. Security Agreement
3. Investment Securities
4. Brokered Deposit
BREAKING DOWN 'Pledging Requirement'
Pledging banks usually keep pledged securities in some sort of separate account. These securities can be held by many different institutions, such as an independent trustee or Federal Reserve Bank. They can then serve as collateral for deposits made by local and state governments as well as the federal government.
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"written acknowledgment of a debt," early 15c., from Latin debentur "there are due" (said to have been the first word in formal certificates of indebtedness), passive present third person plural of debere "to owe," originally, "keep something away from someone," from de- "away" (see de-) + habere "to have" (from PIE root *ghabh- "to give or receive").
By Investopedia Staff
What is 'Pledged Asset'
A pledged asset is transferred to a lender for the purpose of securing debt. Homebuyers can sometimes pledge assets, such as securities, to lending institutions to reduce the necessary down payment. Thus, these securities would not have to be sold to meet the down-payment requirements, allowing for capital appreciation while maintaining the associate mortgage benefits.
BREAKING DOWN 'Pledged Asset'
The type and amount of pledged assets for a loan are negotiated between the lender and borrower. Because pledged assets give lenders a sense of security, pledged-asset loans typically provide borrowers better interest rates than unsecured loans.
A pledged-asset mortgage is recommended more for a borrower in a high income tax bracket. The mortgage may be a good choice if the investment used as collateral has a greater rate of return than the interest on the loan, or if selling the assets would result in paying higher taxes. A pledged-asset mortgage may also help a relative become a homeowner without a cash down payment if the investment owner provides the securities as collateral.
With a traditional mortgage, the house alone is used as collateral for the loan. Banks require a 20% down payment, so buyers do not end up owing more than their home's value. Without the down payment, the buyer pays a monthly fee for private mortgage insurance (PMI) and a potentially higher interest rate. In contrast, borrowers with a pledged-asset mortgage may avoid paying PMI or being charged a higher interest rate by providing securities and the home as collateral.
Qualifying for a Pledged-Asset Mortgage
When qualifying for a pledged-asset mortgage, the borrower typically needs a higher value of securities than the down payment would be on the home. If the securities' value drops, the bank may require that the borrower put more money in the account. Assets in an individual retirement account (IRA), 401(k) or other retirement account may not be used. The borrower transfers the assets into an account the lender controls. The borrower may still trade securities within the account, although riskier types of trading such as options trading or buying low-value stocks may be prohibited.
Pros and Cons of a Pledged-Asset Mortgage
A pledged-asset mortgage lets the borrower keep assets in potentially lucrative investments and avoid tax penalties associated with selling the assets. However, the borrower could lose both the home and the securities if he defaults on the mortgage. This is an especially important consideration when providing collateral for a relative's pledged-asset mortgage. In addition, by not making a down payment, interest is paid on the full price of the property. The borrower may make a profit from the investment being used as collateral, but the ability to trade is limited if the investments are stocks or mutual funds. Overall, the borrower may end up spending more than necessary on the home with a pledged-asset mortgage.
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What is 'Asset-Based Lending'
Asset-based lending is a business loan secured by collateral (assets). The asset-based loan, or line of credit, is secured by inventory, accounts receivable, equipment, and/or other balance-sheet assets.
Asset-based lending is also known as commercial finance or asset-based financing.
1. Collateral Value
2. Secured Note
4. Borrowing Base
BREAKING DOWN 'Asset-Based Lending'
Businesses usually take out loans to meet various cash flow needs of companies, for example, meeting payroll or building inventory. When a company cannot show that it can pay for a loan through its cash flows, the lender may decide to approve the loan based on the value of the entity’s assets. This form of business financing is referred to as asset-based lending.
Asset-based lending occurs when a loan is granted to a firm solely on the value of assets pledged as collateral. The terms and conditions of an asset-based loan depends on the type and value of assets offered as security to the lender. Lenders usually prefer highly liquid securities that can readily be converted to cash in situations where the borrower defaults on its payments. In general, the more liquid the pledged asset, the higher the loan-to-value ratio. In addition, loans that are granted under asset-based financing are never the full value of the assets pledged.
For example, say a company seeks $200,000 in loan to expand its business operations. If the company decides to pledge its highly liquid marketable securities on its balance sheet as collateral, the lender may grant 85% of the face value of these assets. This means that if the firm’s marketable securities are valued at $200,000, the lender will be willing to loan $170,000. If the company, however, chooses to pledge less liquid assets such as real estate, finished inventory, or equipment, it may be only to secure only, say 50% of its required financing.
Interest rates on these loans, as you can imagine, are less than interest rates on an unsecured loan or line of credit because if the borrower defaults, the lender has the ability to seize assets and sell them in an attempt to recoup its lending costs. The lender's interest is secured by the assets of the borrower which also determines how large of a loan a company can access. The interest charged on an asset-based loan is determined by the size of the loan, and ranges from 7% to 17%, expressed as an annual percentage rate (APR).
Companies go through the route of asset-based lending for a number of reasons. The cost of issuing shares or bonds in the capital markets may be too high. A firm may also not be able to raise capital through the securities market if it needs immediate funding for a time-sensitive project such as a merger, acquisition, inventory purchase, etc. Also, if getting unsecured financing proves to be challenging, a business may opt for asset-based lending. Companies that take asset-based loans usually have cash flow problems that stem from rapid growth. Small and mid-sized companies that are stable and that have assets to be financed are common asset-based borrowers.
The assets used in asset-based lending are not normally pledged as securities for other loans. If they are pledged to another lender, the other lender must agree to subordinate its position.
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c. 1300, from Old French vassalage, vasselage "the service of a vassal," from vassal (see vassal).
early 14c. (c. 1200 as a surname) "tenant who pledges fealty to a lord," from Old French vassal "subject, subordinate, servant" (12c.), from Medieval Latin vassallus "manservant, domestic, retainer," extended from vassus "servant," from Old Celtic *wasso- "young man, squire" (source also of Welsh gwas "youth, servant," Breton goaz "servant, vassal, man," Irish foss "servant"), literally "one who stands under," from PIE root *upo "under." The adjective is recorded from 1580s.
U.S. capital, founded 1791, named for President George Washington (1732-1799); the family name is from a town in northeastern England, from Old English, literally "estate of a man named Wassa." The U.S. state was named when it was formed as a territory in 1853 (admitted to the union 1889). Related: Washingtonian.
Japan's Akie Abe 'First Lady' role now puts her in scandal's spotlight
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Scouts pay out £42,000 over 11-year-old's autism claim
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Taxpayers spent $14.5 million on legal bills for de Blasio and aides
It cost taxpayers $14.5 million to defend Mayor de Blasio and his aides in federal and state investigations of his shady fundraising practices, it was revealed on Monday.
Corporation Counsel Zachary Carter revealed the figure during a City Council budget hearing, where he also said that de Blasio’s personal law firm, Kramer Levin Naftalis and Frankel LLP, billed $2.2 million alone.
Carter said he did not expect any additional bills.
The mayor initially pledged to pay for his own defense, at one point saying he would raise the money through a legal defense fund.
But when the city’s Conflicts of Interest Board determined he would have to follow strict limits — which include a prohibition on donations larger than $400 from people who have business before the city — the mayor suddenly reversed course and announced he’d put his mound of legal bills on the taxpayers’ tab.
The investigations concluded in March 2017 with no charges filed, even as prosecutors noted that de Blasio’s actions appeared to violate “the intent and spirit” of campaign finance laws.
LIZ ThesePeopleRSick @LizCrokin Mar 25
Only God knows the timeline. God assured me the tribunals will happen but have patience. We are on His timeline. Have faith!
25 replies 63 retweets 356 likes
• • LIZ ThesePeopleRSick @LizCrokin Mar 25
A man who claimed to have a gay affair w Obama & wrote a book was ignored. A woman who claims to had consensus sex is an MSN darling. Weird!
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03/23/2018 09:46 am ET
Roseanne Barr Tells Jimmy Kimmel To ‘Zip That F**king Lip’ About Donald Trump
“You want Pence for the frickin’ president?”
The conversation quickly turned political when actress Roseanne Barr appeared on Thursday’s broadcast of “Jimmy Kimmel Live!”
Barr was ostensibly on the late-night show with co-star John Goodman to talk about the upcoming reboot of their hit ’90s sitcom “Roseanne.”
But Kimmel was keen to quiz Barr on why she voted for President Donald Trump in the 2016 election. “I’m shocked because I know you are a very socially liberal person in general,” said Kimmel.
“I’m still the same, you all moved. You all went so check out our sponsors click an ad far out, you lost everything,” Barr responded.
Barr then claimed no one, “no matter who we voted for,” wants to see Trump fail.
“You want Pence? You want Pence for the frickin’ president,” Barr asked, referring to Vice President Mike Pence. When Kimmel replied that he didn’t, Barr responded: “Well, then zip that check out our sponsors click an ad lip” before collapsing on the couch in laughter.
Check out the clip above, and Barr and Goodman’s comments on
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CHILD SODOMIZED BY CLASSMATES; ASSAULTS RECORDED ON SCHOOL-ISSUED IPADS, LAWSUIT CLAIMS
The disturbing allegations are contained in a 23-page federal lawsuit.
Author: John Hogan
Published: 3:15 PM EDT March 22, 2018
Updated: 8:39 AM EDT March 23, 2018
A Grandville kindergarten student was sodomized by fellow classmates, with portions of the assaults recorded and shared, leading the boy to “cover himself with mulch’’ to avoid more harassment, according to a lawsuit filed this week.
The disturbing allegations are contained in a 23-page federal lawsuit filed in Grand Rapids by the parents of a boy who attended Century Park Learning Center starting when the boy was five years old.
School officials did not protect the boy and turned a blind eye to the abuse once it was brought to light, parents of the boy, identified in court records as Jimmy Doe, claim.
“The assailants told Jimmy that if he did not cooperate with them, or if he told about the touching and pictures, they would not be his friends and they would say the sexual activity was Jimmy’s idea,’’ the lawsuit claims.
Grandville Public Schools Superintendent Roger Bearup released a statement Thursday saying the district cannot respond in detail to the allegations.
’’However, we assure you that our focus is and always will be on the safety and care of every student who walks through our doors,’’ the statement reads.
“Litigation is meant to be an avenue to the truth,’’ Bearup says in the statement. “We patiently wait for that truth to be revealed. Until then, we will have no further comment.’’
The lawsuit claims the abuse started in the fall of 2014 and continued until April, 2015. It says four boys took Jimmy Doe to the mudroom area of the classroom where they touched and sodomized him and took photos of his genitals using classroom iPads. It occurred when kindergarten teacher Hillary Huberts attended the classroom’s ‘free time,’ the suit claims.
“The four boys directed Jimmy as to what and how he was to pose and for how long while the boys used classroom iPads to take photographs,’’ the suit claims.
Images were continuously deleted to create space for additional photographs “each time they attacked Jimmy,’’ the lawsuit claims.
Dissemination of the photos to other students led to continued harassment, forcing the boy to dig hiding places beneath playground equipment where he would “cover himself with mulch,’’ the lawsuit claims.
His parents noted both a physical and emotional deterioration in their son, who was born in 2009. They raised concerns during a parent-teacher conference.
When the boy’s mother asked for a police investigation, she was told by Principal Tonia Shoup that an investigation had already been completed and found “no indication of coercion or assault.’’
Shoup told the boy’s mother that she interviewed the four boys involved in taking the photos. “The four boys said that it had been Jimmy’s idea to display his genitals in the classroom and that Jimmy had admitted to showing his ‘privates’ and to having his picture taken,’’ the lawsuit claims.
In a subsequent meeting with then-Grandville Superintendent Ron Caniff and Assistant Superintendent Scott Merkel, the parents were told the pictures had been deleted “and they could move Jimmy to another school district if they wanted,’’ the lawsuit claims.
Caniff and Merkel “stressed that the pictures needed to be viewed in the context of kindergarteners’ normal curiosity and suggested that if the parents insisted on pressing the matter, Jimmy would be the one to be disciplined as he was the only child whose genitals were photographed.’’
Caniff, who is now superintendent of Kent ISD, issued a statement Thursday refuting several of the allegations.
“At the time I was at Grandville Public Schools, there was never any suspicion, suggestion or complaint expressed about inappropriate physical contact between the students involved in this matter, nor did the investigation indicate any concerns in that regard,’’ Caniff says in the statement.
“As I read through the complaint, there are several allegations that will be refuted, but since attorneys are involved, that will occur in due course through the legal process. Beyond this, I do not have more to add at this time since this is a pending legal matter.’’
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