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Monday, May 15, 2017

Arbitration: setting the rules and identifying which arbitration organization will be used

When it comes time to go to arbitration for commercial disputes, there can be a whole lot of questions that need answering. Those primary questions usually extend to which organization will conduct the arbitration and which rules will be used. It is important to understand these issues before including this in an arbitration agreement and before moving forward toward arbitration.

One of the most essential components of this process is the arbitration clause in your contract. This is where the name of the arbitration organization can be included and there is also the option to include a set of arbitration rules. Doing so will help to speed up the process and avoid additional legal fees arguing about such things later.

arbitration, business arbitration, commercial arbitration, arbitration law, arbitration Charlotte NC, arbitration Mt Pleasant SC, arbitration lawyer, legal settlement, business, business dispute, commercial dispute, business law, contract law, business lawyer Charlotte NC, business lawyer Mt Pleasant SC, business lawyer, business settlement
Setting rules may be the most integral part of arbitration as it establishes the guidelines that will be used. Many arbitration hearings use rules set forth by the American Arbitration Association (AAA). The AAA has a set of streamlined rules for business cases, which are commonly used. It is important to note that not all contracts include AAA or similar rules. In arbitration proceedings that do not specify AAA or similar rules, there can be uncertainty regarding the process. Individuals could find themselves bound by rules that they may not be comfortable with. That is why setting rules in an arbitration clause is extremely beneficial.

On the other hand, there is less flexibility when arbitration clauses are overly specific. So it may be better to leave room in your business contracts, which can demand a bit of a balancing act. When there are discrepancies regarding rules or the arbitration organization, the process of ironing out those details can take up lots of time and money.

Which arbitration organization you choose is an important component to consider. Some arbitration organizations have track records of ruling in favor of certain clients, which could make for an uphill and seemingly unfair battle.

Overall, it’s simply better to cut down on possible disagreements about the logistics or arbitration; reducing the issues to argue over will save time and money. Establishing the rules and the arbitration organization, business lawyer, well before an arbitration is ever needed is advantageous and recommended.

Monday, April 3, 2017

Necessary Knowledge: March Edition

March



Necessary Knowledge: March Edition



McGrath & Spielberger, PLLC publishes a newsletter periodically where we share relevant blog posts and firm news. Our latest newsletter was published recently at no cost to subscribers. The March newsletter was all about our business clients and featured helpful articles by our partners Jason McGrath and James Spielberger.

Did you know that April 30, 2017 - May 6, 2017 is National Small Business week?



Your New LLC: Maintaining Your Limited Liability Protection is part of a continuing series of articles by Attorney James Spielberger to assist you with your LLC needs. This series of blog posts is all about your New LLC and some tips for managing it's legal needs.

The Number One Problem for Small Limited Liability Companies is a blog post by Attorney Jason McGrath that sheds light on a common business problem often encountered in our practice and how you can protect your small business.

Why Does Your Corporation or Limited Liability Company need a Registered Agent?  is  a video blog by Attorney Jason McGrath.  You can find more video blogs on Contract Law and Arbitration on our website.

You can become a subscriber before our next newsletter publishes - it's free!



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Friday, March 31, 2017

Recently engaged? 5 reasons why you should consider a prenup



Recently Engaged? 5 Reasons Why You Should Consider a Prenup



prenupAs most of my friends are getting married or are recently married (myself included), I frequently get asked why anyone would want a prenuptial agreement. Prenups can get a bad reputation because many people assume signing a prenup means you are preparing for divorce in the future. However, this is NOT necessarily the case! There are many reasons (other than divorce) that future spouses may want to sign a prenup before getting married.


Here are my top 5 reasons for signing a prenup.


  • A prenup promotes communication between future spouses so they are fully aware of the other’s financial situation and other issues prior to marriage. In North Carolina and South Carolina, each party must voluntarily provide a full and fair financial disclosure about his or her property and financial obligations (unless waived in writing).
  • A prenup can establish how property matters will be handled in the future. If you are a person who has substantial individual or family assets, a prenuptial agreement may be a great way to specify how debt and other financial issues will be handled during the marriage.
  • A prenup can determine the rights and obligations of each party with regard to the right to buy, sell, use, transfer, exchange, abandon, lease, or otherwise dispose of, control, or manage certain property. In North Carolina and South Carolina, property obtained during the marriage is generally treated as marital or joint property, but a prenup can change the general rule for property acquired during the marriage.
  • A prenup can protect a person that has a professional practice or other service business. For all the entrepreneurs out there, this is a great way to protect your hard work, while still being able to provide for your new family.
  • A prenup can be viewed as a proactive dispute resolution system, as it can simplify the divorce process. A prenup may reduce the chance of litigation upon divorce and, in addition, reduce those litigation costs. This may be beneficial for a party that is entering into a second marriage or those who have children from previous relationships.


Contact us today to get started on your prenuptial agreement.


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Wednesday, March 22, 2017

Arbitration Fees - How Much do Arbitrators Cost?

Business law Attorney Jason McGrath shares some information about how much you should expect to pay in fees to an Arbitrator in this short video.

https://youtu.be/_mJseLaXzM0

Here are some of the key points contained in this informational video:


  • Arbitrators typically charge fees similar to what lawyers charge.

  • Does the Arbitrator require a minimum amount when the arbitration is scheduled? This may be called a cancellation fee or a retainer fee. The arbitrator may require this to offset a loss if the arbitration cancels.

  • Arbitrators can sometimes be bargained with to lower fees but normally these are set fees.

  •  Arbitration fees (which are mostly made up of the Arbitrator’s fees) are often split evenly between the parties, but this can be altered by contract, law, or court order.



You should get advice from an attorney to assist in handling litigation issues like arbitration.

This is part of a continuing series of video blogs on contract law and arbitration - you can find the first part of this series on our blog or on our YouTube Channel.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Tuesday, March 14, 2017

Substitute Trustee Services Inc. - Foreclosure Hearing Result

Substitute

The following is a summary of a foreclosure hearing  that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Mortgage Loan Servicer / Foreclosing Bank: RoundPoint Mortgage Servicing Corporation

Prosecuting Trustee / Law Firm: Substitute Trustee Services, Inc. and Hutchens Law Firm

Property Location: Charlotte, Mecklenburg County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: December 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.

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Monday, March 6, 2017

Foreclosure Hearing Result - Embrace Home Loans

embrace

The following is a summary of a foreclosure hearing  that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Mortgage Loan Servicer / Foreclosing Bank: Embrace Home Loans, Inc. c/o RoundPoint Mortgage Servicing Corporation

Prosecuting Trustee / Law Firm: Substitute Trustee Services, Inc. and Hutchens Law Firm

Property Location: McDowell County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: December 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.

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Wednesday, March 1, 2017

Newsletter: February Edition

February



Necessary Knowledge: February Edition



McGrath & Spielberger, PLLC publishes a newsletter periodically where we share relevant blog posts and firm news. Our latest newsletter was published recently at no cost to subscribers. The February newsletter was all about our business clients and featured helpful articles by our partners Jason McGrath and James Spielberger.

Moving Your LLC To Another State is part five of a continuing series of articles by Attorney James Spielberger to assist you with your LLC needs. This series of blog posts is all about your New LLC and some tips for managing it's legal needs.

Arbitration Provisions in Business Contracts is part of a continuing educational series of video blogs by Attorney Jason McGrath.  You can find more video blogs on Contract Law and Arbitration on our website.

You can become a subscriber before our next newsletter publishes - it's free!



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Monday, February 27, 2017

Where Does an Arbitration Physically Take Place?

Attorney Jason McGrath shares some information about where you can expect an arbitration proceeding to physically take place in this short video.

https://youtu.be/VdRTct7zvPs

Here are some of the key points contained in this informational video:

Understand the practical logistics of an arbitration that may arise from a dispute about your business contract.

Where will the arbitration physically take place? What city or county? An attorney’s office? The courthouse? City  hall?


  • As far as city or county, arbitration often takes place where a related lawsuit would be (or is) taking place.

  • Some arbitration agreements will dictate what city or county the arbitration must occur in.

  • Arbitration can usually occur anywhere that the parties agree.

  • The arbitration hearing could take place at a private law office or the arbitrator’s office.

  • Arbitration doesn't usually occur in the courthouse.



Occasionally a court will enter an order as to the logistical specifics of arbitration, such as the hearing location.

You should get advice from an attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Monday, February 20, 2017

Red Bridges

bridges

RED BRIDGES



Oftentimes I have to go to court in other counties for motions, petitions, and even trials. Most of the time, I end up in Gaston, Buncombe, Guilford, Forsyth, and Wake Counties. But my latest adventure took me to a place I haven’t seen in a long time: Cleveland County. Cleveland County—County Seat Shelby—is located just at the precipice of the rolling Piedmont foothills in southwestern North Carolina.

On this particular occasion, I had to argue a Lienholder’s Petition in Superior Court. In Lienholder’s Petitions, I represent banks and other lenders in obtaining court orders that release cars that have been seized in DWIs and other arrests. If the Defendant/Owner is in default on the loan, the court can release the car, which is collateral for the loan, back to the lender.

But when you’re in Shelby, it’s what happens after court that ends up being really special: Red Bridges Barbecue. Situated along I-74 (aka Dixon Blvd.), Red Bridges has been and remains a staple eatery not just in Shelby, but in North Carolina since 1946. And if the site Thrillist is to be believed, America as well. As in the best barbecue in the United States, with 80,000 votes to back it up.

According to Bridges website, the business started in 1946, when Red and Lyttle Bridges opened the restaurant under the name Dedmond’s, making pit-cooked Lexington-style barbecue for Shelby folks. The rest is history, but of note Red and Lyttle’s daughter, Debbie, runs the business along with her two children to this day.

Bridges looks much like did back in the day. There’s nothing fancy, no music, no funky d├ęcor, just an honest ‘cue house that has all you need: knock it outta the park pulled pork pit barbecue. Order the jumbo plate, because you’ll want to keep tasting it. Bridges’s red barbecue sauce is a sweet, savory, and tangy delight, but the meat can stand on its own without sauce.

The sides abide as well. Bridges’s barbecue slaw is a tangy blend of cabbage, vinegar, and red sauce (I think). I rank it up there with my other favorite vinegar and oil slaw—from Primanti Bros. The hush puppies are fried up so they’re nice and crispy on the outside, and are great dipped in the red sauce or mustard.

So the next time you’re in Shelby, stop by Red Bridges Barbecue to experience a legend. It’s right off of I-74 and is almost impossible to miss. You don’t even have to be in Shelby on other business; going there specifically for Bridges is as noble and worthy a pursuit as anything else.

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Tuesday, February 7, 2017

Arbitration Agreement: How to Get to Arbitration if A Lawsuit Was Filed First

Attorney Jason McGrath shares some items to consider when your contract has an arbitration provision but the other party has already filed a formal lawsuit in the court system in this short video.

https://youtu.be/J23FU7EDFB0

Here are some of the key points contained in the video:

What do you do if the other party has already filed a formal lawsuit in the court system?


  1. You go to the other side and point out that there is an arbitration clause in the contract and demand it be honored.

  2. If the other side refuses to halt the lawsuit and go to arbitration, you file a motion asking the court to dismiss or stay the lawsuit and order arbitration.

  3. This type of a motion needs to be filed before the case goes to far in the formal court system.

  4. If the court believes the arbitration clause to be valid, it will typically order arbitration and halt the lawsuit in the meantime.

  5. More often than not, arbitration clauses are enforced by courts.



You should get advice from an attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Thursday, February 2, 2017

Foreclosure Hearing Outcome - Trustee Services

Trustee Services

The following is a summary of a foreclosure hearing that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.



Mortgage Loan Servicer / Foreclosing Bank: Wells Fargo Bank, N.A.

Prosecuting Trustee / Law Firm: Trustee Services of Carolina, LLC and Brock & Scott, PLLC

Property Location: Charlotte, Mecklenburg County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: August 2015

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.

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Wednesday, February 1, 2017

Moving Your LLC To Another State

“Your New LLC” – Part 5: Moving Your LLC to Another State



So you started your LLC in one state, and it becomes successful, but you then decide to move to a new state for family or other reasons. Now what? Well, you have a few options that will enable you to continue on with your business – some of which may result in only minimal hardships and/or expenditures. Because all of the options discussed below need to be analyzed based on your specific circumstances and involve multiple state’s laws, you are strongly encouraged to seek legal advice from a business law attorney in both your current/old state and your new state. This can make a law firm that has attorneys licensed in multiple states, such as McGrath & Spielberger, with attorneys licensed in FL, GA, NC, OH, SC and TN and attorney connections in most other states, a very valuable resource.


  1. Maintain Your Current LLC in its Original State and Register it in Your New State. As discussed in Part 4 of our series on limited liability companies, when you transact business in a state other than the one where your LLC was formed, you typically need to register your LLC in the new state (often called filing for a Certificate of Authority or Foreign Qualification). Well, this “registration” can be used in the new state even if it becomes your home state, but the original state where you formed your LLC will remain the “home state” for your LLC. This is usually completely fine from a legal standpoint and is quite common. However, there are a few downsides to this approach. You will likely need to pay annual LLC fees in the LLC’s home state as well as in your new home state. You will also likely need to continue to pay for a registered agent and registered office in the LLC’s home state. These may be unnecessary expenditures if you no longer have any ties to the LLC’s home state and/or you simply want to have your LLC’s home state be the same as your new home state. The below options may alleviate these issues in many cases.




  1. Form a New LLC in Your New State and Dissolve Your Current LLC. Another option is to form a new LLC in your new state and dissolve the LLC in your old state. This can be accomplished with one LLC formation filing fee and, usually, one small LLC dissolution fee, which will eliminate the need for the ongoing expenses in your old state that may result if you went with option 1. However, when you form a new LLC you are considered a new business entity which is separate and distinct from your original LLC – even if your new LLC has the same name as your current LLC. This means you will need a new Federal Employer Identification Number (EIN), new bank accounts, etc. You may also lose any corporate credit or   history and will likely need to transfer all assets, including contracts, permits, license, trademarks, etc. to the new LLC. This can be problematic for a company that has been in business for a while and has a lot of existing contracts, loans, clients and employees. But this “clean start” option may very well be a viable alternative for a newer or very lean business.




  1. Domesticate Your Current LLC into Your New State.  Some states will allow you to convert or transform your LLC formed in another state into an LLC in their state. This process, called domestication, allows the LLC to move to a new state (and become an LLC under the new state’s laws) and maintain its corporate history, credit, EIN, contracts, etc. It essentially means that it is the same LLC but just considered to exist under the new state’s laws. While this is seemingly the best option in most cases, the problem is that many state’s laws do not yet allow for domestication of an LLC. For example, in South Carolina a corporation can domesticate into South Carolina from another state, but an LLC currently cannot. However, if the end-result of domestication appears to be the best result for your situation but domestication is not available, then it may make sense to consider the next option – an LLC merger.




  1. Merge Your Current LLC into a New LLC formed in Your New State. While this option may be the most complex from a legal standpoint, if done properly the results may be very similar to those of domestication – you can often remain as the same business with the same EIN, corporate history, contracts, etc. even though you are technically forming a new LLC. The process, although it is simplified here, is to form a new LLC in your new state and then merge your current LLC into the new LLC. The new LLC basically consumes the current LLC and the new LLC can, in many cases, continue on with the business of the current LLC without any disruptions or the need for any asset transfers, etc. The complexities of this option arise in determining what needs to be done to successfully accomplish the merger in both involved states. Depending on the states involved, Articles of Merger, Articles of Dissolution or Termination, or similar forms may need to be filed in one or both states. Custom merger documents may even need to be drafted in some cases, so please discuss your situation with an attorney(s) before proceeding.



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Wednesday, January 25, 2017

Decision On An Arbitration Provision In A Contract

Attorney Jason McGrath some items to consider when deciding to include an arbitration provision in a contract matter in this short video.

https://youtu.be/rOPNhRSSLVE

Here are some of the key points contained in the video:


  • Arbitration: do you prefer arbitration or a formal court case if there is a dispute?

  • The intent of an arbitration provision in a contract is to avoid a formal court case.

  • Arbitration provisions are, in general, enforceable and typically will be binding in the same way that a civil court judgment can be enforced.

  • There are ways to appeal an arbitration decision but they are limited.

  • Arbitration is usually less expensive than a formal court case.



You should talk to an attorney for advice when considering including an arbitration provision to your business contract.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Sunday, January 22, 2017

Necessary Knowledge: January Edition

January



Necessary Knowledge: January Edition



McGrath & Spielberger, PLLC publishes a newsletter periodically where we share relevant blog posts and firm news. Our latest newsletter was published recently at no cost to subscribers. The January newsletter was all about our partners Jason McGrath and James Spielberger.

In order to introduce them to you all we showcased a bit of personal information about them both in January. They also contribute a lot of knowledge on our bog. You can find a list of Jason's blog posts and Jim's blog posts on our website.

Jim is currently writing a series of blog posts about your New LLC and some tips for managing it's legal needs. Jason is currently doing a series of video blogs on Contract Law and Arbitration.

You can become a subscriber before our next newsletter publishes - it's free!



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Wednesday, January 18, 2017

Cleveland County North Carolina Lender Petition Hearing

cleveland

Lienholder's / Lender Petition Hearing to Obtain Vehicle



The following is a summary of a leinholder's petition hearing to obtain a vehicle seized by police that McGrath & Spielberger assisted a lender with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Lender/Lienholder Bank: CarFinance Capital, LLC

Prosecuting Agency: Cleveland County District Attorney

Property Location: Shelby, Cleveland County, North Carolina

Property Type: Vehicle, 2015 Mitsubishi Mirage

Lienholder’s Attorney: Lee A. Peindl, Esq.

Hearing Date: December 8, 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Lienholder’s Petition Hearing:  Mr. Peindl attended the hearing on behalf of the client and argued a Petition to Return Seized Vehicle to the court in order to return the collateral to the lender client.

Hearing Outcome: Mr. Peindl successfully obtained a certified Order to return the seized vehicle to the Lender/Lienholder. After which, Mr. Peindl ate some of the state’s finest barbecue at Red Bridges in Shelby.

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Thursday, January 5, 2017

Foreclosure Hearing - June - Wells Fargo Bank - Charlotte, NC

June

The following is a summary of a foreclosure hearing that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.



Mortgage Loan Servicer / Foreclosing Bank: Wells Fargo Bank, N.A.

Prosecuting Trustee / Law Firm: Trustee Services of Carolina, LLC and Brock & Scott, PLLC

Property Location: Charlotte, Mecklenburg County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: June 2015

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.
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Monday, January 2, 2017

Necessary Knowledge: December Edition

December



Necessary Knowledge: December Edition



McGrath & Spielberger, PLLC publishes a newsletter periodically where we share relevant blog posts and firm news. Our latest newsletter was published recently at no cost to subscribers. Here's a list of what we included in the latest installment of our "Necessary Knowledge" as a free service to our clients and subscribers.

How Do You Expand Your Company into North Carolina from Another State? by Jason McGrath, Esq.

Your New LLC: Transacting Business In Another State by James Spielberger, Esq.

How Do You Choose The Arbitrator in an Arbitration? by Jason McGrath, Esq.

You can become a subscriber before our next newsletter publishes - it's free!



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Tuesday, December 13, 2016

Follow the Contract's Arbitration Clause or File a Lawsuit?

Attorney Jason McGrath explains some things to consider when considering whether to follow a contract's arbitration clause or file a lawsuit in this short video.

https://youtu.be/_aLlrngcKkY

Here are some of the key points contained in the video:


  • How do you end up in arbitration vs. in court?

  • Typically, someone has to decide - do we follow the arbitration clause or just file a lawsuit?

  • Parties usually just file a formal lawsuit as if there is no arbitration clause.

  • There can be some negatives to ignoring the arbitration clause.



You should have your attorney take a look at the contract and then make a careful decision on how to proceed based on a through legal analysis of your case and the contract.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Monday, December 12, 2016

Lienholder's / Lender Petition Hearing to Obtain Vehicle

lender

Lienholder's / Lender Petition Hearing to Obtain Vehicle



The following is a summary of a leinholder's petition hearing to obtain a vehicle seized by police that McGrath & Spielberger assisted a client with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Lender/Lienholder Bank: Santander Consumer USA, Inc.

Prosecuting Agency: Mecklenburg County District Attorney

Property Location: Charlotte, Mecklenburg County, North Carolina

Property Type: Vehicle, 2011 Nissan Altima

Lienholder’s Attorney: Lee A. Peindl, Esq.

Hearing Date: November 18, 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Lienholder’s Petition Hearing: Mr. Peindl attended the hearing on behalf of the client and argued a Petition to Return Seized Vehicle to the court in order to return the collateral to the client.

Hearing Outcome: Mr. Peindl successfully obtained a certified Order to return the seized vehicle to the Lender/Lienholder.

 

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Thursday, December 8, 2016

Hearing on Partition of Real Property and Result

Result

Hearing on Partition of Real Property & Result



The following is a summary of a hearing on Partition of Real Property that McGrath & Spielberger assisted a client with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Basic Facts. The Petitioner is trying to force a sale of the real property at issue so she can receive a portion of the sale proceeds.

Basics of the Applicable Law. The default setting in North Carolina law is that an owner of real property (even a minority owner) has a right to force a partition of that property, whether a partition in kind (physical division) or partition by sale (sell the property and divide the proceeds).

The Challenge. To not have the case follow the default setting (a partition being ordered).

Owner 1. The Respondent (Brother) who owns 11/12 of the real property, lives on the property with his family, takes care of the property, pays the taxes, etc.

Owner 2. The Petitioner (Sister), who owns 1/12 of the real property, does not reside there, does not contribute to the care of the property.

Property Location. Charlotte, Mecklenburg County, North Carolina

Property Type. Primary residence

Who McGrath & Spielberger Attorney Jason McGrath Represents. Owner 2, the Respondent

Hearing Date. November, 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Partition Hearing. Mr. McGrath filed Motions to Dismiss and Objections to the Petition for Partition and attended the hearing with the Client. The strategy to oppose the Petition for Partition was not revealed to the other side until necessary at the hearing itself.

Partition Hearing Outcome. Mr. McGrath successfully prevented an Order for Partition from being entered. The case remains pending, as do our Motions to Dismiss.

 

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Wednesday, November 30, 2016

Arbitration Clause: One Arbitrator Or More?

Attorney Jason McGrath explains some things to consider when when considering the arbitration clause in a contract in this short video.

https://youtu.be/VaxZHXUP3PY

Here are some of the key points contained in the video:


  • How many arbitrators would you prefer?

  • Are you comfortable with the decision being in the hands of just one person? Keep in mind that trial level legal cases in the regular judicial system are handled by one judge.

  • Keep in mind that the more arbitrators involved, the more expensive arbitration will be.

  • Does the arbitration clause in the contract address how many arbitrators there are going to be?



The arbitration provision in a contract doesn't have to address the issue of how many arbitrators. You can leave the option open if you prefer.  You want to be mindful of this when crafting your contract and the arbitration provision.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Monday, November 28, 2016

Foreclosure Hearing - RoundPoint Mortgage Servicing Corporation -North Carolina

servicing

The following is a summary of a foreclosure hearing  that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Mortgage Loan Servicer / Foreclosing Bank: RoundPoint Mortgage Servicing Corporation

Prosecuting Trustee / Law Firm: Substitute Trustee Services, Inc. and Hutchens Law Firm

Property Location: Charlotte, Mecklenburg County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: July 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.

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Sunday, November 27, 2016

“Your New LLC” – Part 4: Transacting Business in Another State

“Your New LLC” – Part 4: Transacting Business in Another State



Many LLC owners are surprised to find that forming their LLC is only the beginning of the legal journey and that there are constantly new laws to comply with, licenses to obtain, etc. In this Part 4 of our series “Your New LLC”, we will discuss some of the things you need to do from a legal standpoint to transact business outside of the state in which your LLC was formed.

transacting

First, it must be understood what it means to “transact business.” Most states have statutes with a list of things that are not considered “transacting business” but do not provide a detailed definition or list of what actually constitutes “transacting business.” For example, in South Carolina, merely owning real property in South Carolina does not result in a finding that a foreign (out-of-state) LLC is transacting business in South Carolina. However, if that real property generates income (is rented out; the LLC provides a third party with the right to harvest timber on it for a fee; etc.), then it is very likely that the LLC will be considered to be transacting business in South Carolina. But, again, the lack of a clear definition of “transacting business” leaves a lot of gray areas in which an LLC could be at risk of violating laws with respect to foreign LLCs transacting business in a state. While every circumstance must be looked at individually in a subjective, fact-intensive fashion, there are certain objective parameters that a foreign LLC can utilize to make a reasonable conclusion as to whether or not it will be considered to be transacting business. As an example, most states will deem a foreign LLC to be transacting business in the state if the LLC has a physical presence in the state and is generating some sort of business income in the state.

So now let’s assume it is clear that a foreign LLC will be transacting business in another state. Well, then, what does the LLC need to do? In most states, the LLC will need to register with the agency or department in the state which regulates corporations and other business entities. The registration is typically known as “foreign qualification” or applying for a “certificate of authority to transact business.” Basically, it is a notice filing telling the state that the foreign LLC was created elsewhere but intends to do business in the state. In South Carolina the foreign LLC would fill out an “Application for a Certificate of Authority by a Foreign Limited Liability Company to Transact Business in South Carolina” and submit it to the South Carolina Secretary of State’s Office. The fee is $110.00 and a “Certificate of Good Standing” or a “Certificate of Existence” from the LLC’s home state must accompany the application (this is basically a document from the LLC’s home state regulating agency telling the world that the LLC has paid all of it fees, is validly formed, etc.). Additionally, an in-state registered agent name and address must be provided on the application. While getting this application filed and approved in South Carolina allows a foreign LLC to transact business perpetually (assuming the LLC stays validly formed in its home state), most states will require an annual fee in order to keep the “Certificate of Authority” in place – so this added expense needs to be taken into consideration when budgeting for the out-of-state business expenses (as does the registered agent fee if the foreign LLC does not have a representative and an address it can readily use).

In addition to obtaining a “Certificate of Authority” or similar registration, all other state and local licensing requirements must be complied with as if the foreign LLC was like any other LLC or business in the state. See Part 3 of our series entitled “Federal, State and Local Registration, Licensing and Permitting” for a more in-depth discussion of these state and local requirements. But as an example, if a foreign LLC wants to sell goods from a South Carolina business location, it would need to register for a retail license (sales tax license) from the South Carolina Department of Revenue (even if the foreign LLC has a sales tax license in its home state) and obtain any local business permits or licenses required by the county, city or town in which the foreign LLC is selling its goods.

In conclusion, it is critical that LLCs not only ensure that they are in compliance with their home state’s laws but also those of any other state in which it decides to “transact business.” In Part 5 of our series we will discuss some options for LLC owners when they not only want to transact business in a new state with their LLC but actually want to relocate their LLC to a new state.

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Tuesday, November 22, 2016

Arbitration: How Do You Choose The Arbitrator?

Attorney Jason McGrath explains some things to consider when choosing the arbitrator during a lawsuit in this short video.

https://youtu.be/_2yl6yo-uR0

Here are some of the key points contained in the video:


  • If using a panel of 3 arbitrators: each party picks an arbitrator and then those two arbitrators pick the third one.




  • If using only 1 arbitrator: one side presents a list of possible arbitrators to the other side and the other side picks from the list.




  • You go back and forth and negotiate between the parties until a decision is made.




  • You may wish to avoid attempting private conversations with potential arbitrators in order to avoid the appearance of impropriety.




  • Consider all the information available to you to make an informed decision about your arbitrator.




  • Arbitrators may also be appointed by the court.



If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

Arbitrator

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Sunday, November 20, 2016

How Do You Expand Your Company Into North Carolina From Another State?

How Do You Expand Your Company Into North Carolina From Another State?



As a business law attorney, one of the most frequent questions I am asked is some variation of “How do I transfer or expand my out-of-state company to North Carolina?” I’ll address the most common scenarios and the reasonable options available. I’m using South Carolina as the “other” state for example purposes, since we also practice in SC. However, the same general process is true regardless of which state your company originated in.

Scenario B: “I live in South Carolina, which is where my company is and will be based, but I want to expand my region of operations to include North Carolina. What should I do and how do I do it?”

Option 1: keep your South Carolina LLC open and register it with the State of North Carolina as a foreign business authorized to transact in North Carolina. You’d obtain a “Certificate of Good Standing” or similar from Florida. You then provide that to the Secretary of State for North Carolina as part of your North Carolina Application for Certificate of Authority (to conduct business in North Carolina). Assuming you are approved by NC, you’re now good to go to conduct business in both states, or either state, and you can have your principal place of business in either state. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Option 2: start an affiliated company or subsidiary in North Carolina. In certain specific instances, you may keep your South Carolina LLC open, and instead of registering it with North Carolina, you’d prefer to create and register a separate but related business entity in North Carolina. This is typically referred to as a “subsidiary” or an “affiliated company”. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Additional notes. Under any of the above options, you’ll have to have a registered agent with a “continuous presence” in NC. Many law firms (like mine) agree to provide that service for a small annual fee, but your company’s “RA” doesn’t have to be a lawyer or law firm. Of course, we also provide the very services needed to transfer your business overall.

These actions can be accomplished without an attorney, but you should at least consider consulting with an attorney any time you make a significant change to your business entity. Good luck!

Expand To NC

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Thursday, November 17, 2016

Foreclosure Hearing - RoundPoint Mortgage Servicing Corp - Charlotte-NC

roundpoint mortgage

The following is a summary of a foreclosure hearing that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Mortgage Loan Servicer / Foreclosing Bank: RoundPoint Mortgage Servicing Corporation

Prosecuting Trustee / Law Firm: Substitute Trustee Services, Inc. and Hutchens Law Firm

Property Location: Charlotte, Mecklenburg County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: May 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.

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Newsletter Recap - November Edition

November



Necessary Knowledge: November Edition



McGrath & Spielberger, PLLC publishes a newsletter periodically where we share relevant blog posts and firm news. Our latest newsletter was published recently at no cost to subscribers. Here's a list of what we included in the latest installment of our "Necessary Knowledge" as a free service to our clients and subscribers.

How Do You "Transfer" Your Company into North Carolina from Another State? by Jason McGrath, Esq.

Your New LLC: Federal, State and Local Licensing, Permitting and Registration by James Spielberger, Esq.

S-Corp Tax Election: Is It Right for Your LLC? by Kelly Brown, Esq.

How Do I Dissolve a Corporation in North Carolina? by Jason McGrath, Esq.

You can become a subscriber before our next newsletter publishes - it's free!



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Sunday, November 6, 2016

Interrogatories - How They Generally Work

Attorney Jason McGrath explains "Interrogatories" during litigation and how they generally work in a lawsuit in this short video.

https://youtu.be/s923VxHdLyE

Here are some of the key points contained in the video:


  1. Interrogatories are a list of written questions.

  2. The receiving party is to respond, typically within 30 days, to the questions or file an objection or series of objections.

  3. There is a rule limiting the number of questions that may be asked.

  4. The responses should be evaluated by the party that initiated the Interrogatories for accuracy and completeness and these issues can be questioned within the court system.



If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

Interrogatories

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Friday, November 4, 2016

Foreclosure Hearing - Harrisburg, North Carolina - Rushmore Loan Management Services

harrisburg

The following is a summary of a foreclosure hearing that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only. Each case, each client, each situation is different, and each matter may have a different outcome.

Mortgage Loan Servicer / Foreclosing Bank: Rushmore Loan Management Services

Prosecuting Trustee / Law Firm: Substitute Trustee Services, Inc. and Hutchens Law Firm

Property Location: Harrisburg, Cabarrus County, North Carolina

Property Type: Primary residence

Borrower’s Attorney: Jason A. McGrath, Esq.

Hearing Date: April 2016

Actions Taken by McGrath & Spielberger on Behalf of Client in Relation to the Foreclosure Hearing: Mr. McGrath attended the foreclosure hearing with the client and argued a Motion to Continue to the court in order to help client avoid foreclosure.

Foreclosure Hearing Outcome: Mr. McGrath successfully moved to continue the hearing; foreclosure avoided.

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Thursday, November 3, 2016

How Do You "Transfer" Your Company Into North Carolina From Another State?

How Do You "Transfer" Your Company Into North Carolina From Another State?



transfer

As a business law attorney, one of the most frequent questions I am asked is some variation of “How do I transfer my out-of-state company to North Carolina?” I’ll address the most common scenarios and the reasonable options available. I’m using Florida as the other state just for example purposes (I also practice in FL), but the same general process is true regardless of which state your company originated in or currently exists in.

Scenario A: “I live in Florida, where my company was formed, but I’m moving to North Carolina and going forward I will be doing business out of North Carolina instead of Florida. What should I do and how do I do it?”

Option 1: convert your Florida company into a North Carolina company.  NC allows a company formed in another state to convert to become a NC LLC. The company would need to follow the law of the state it is coming from as far as winding down any business and otherwise wrapping up affairs in that state, and would typically need to have passed a resolution or similar approving the conversion to a NC company. The LLC can then file its Articles of Organization/Conversion with the NC Secretary of State.

Option 2: shut your Florida company down and start a new one in North Carolina. You would “wind up” your Florida LLC and dissolve it, such that it no longer exists. While the timing of the steps in North Carolina may vary to some extent, you’d go ahead and create a North Carolina LLC. The name would not have to be the same, but there are advantages to using the same name, if possible (this article does not attempt to address those issues).

Option 3: keep your Florida company open and register it with the State of North Carolina as a foreign business authorized to transact in North Carolina. You’d obtain a “Certificate of Good Standing” or similar from Florida. You then provide that to the NC Secretary of State as part of your North Carolina Application for Certificate of Authority (to conduct business in North Carolina). Assuming you are approved by NC, you’re now good to go to conduct business in both states, or either state, and you can have your principal place of business in either state. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Option 4: start an affiliated company or subsidiary in North Carolina. In certain specific instances, you may keep your Florida LLC open, and instead of registering it with North Carolina, you’d prefer to create and register a separate but related business entity in North Carolina. This is typically referred to as a “subsidiary” or an “affiliated company”. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Additional notes. Under any of the above options, you’ll have to have a registered agent with a “continuous presence” in NC. Many law firms (like mine) agree to provide that service for a small annual fee, but your company’s “RA” doesn’t have to be a lawyer or law firm. Of course, we also provide the very services needed to transfer your business overall.

These actions can be accomplished without an attorney, but you should at least consider consulting with an attorney any time you make a significant change to your business entity. Good luck!

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Tuesday, November 1, 2016

About McGrath & Spielberger's Intake Form

Partner  Jason McGrath explains how McGrath & Spielberger, PLLC utilizes confidential client intake forms to streamline the client on-boarding process and save clients time and money.

https://youtu.be/CXUDh1AaQd4

 

Here are some points for you to consider when filling out our confidential client form for legal assistance in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee.


  1. The potential client forms are confidential.

  2. We need to run a mandatory conflict of interest check which is required by law.

  3. Overall firm efficiency saves clients money by getting to the most important elements of your matter immediately.

  4. You control the information and it is given to the attorney in your own words so nothing is lost in translation.

  5. The more detail we can get on the intake form then it is much easier to evaluate your matter quickly and efficiently to determine if we can assist you.

  6. Intake forms ultimately benefit clients by providing more clearer communications and cost savings.



 

intake form

 

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