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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




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 -NorthCarolina



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

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.



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.



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Sunday, November 20, 2016

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 business 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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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


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 contact form for possible legal assistance.


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Friday, November 4, 2016

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


Foreclosure Hearing, Harrisburg, North Carolina, Rushmore Loan Management Services, foreclosing, Cabarrus County

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?

Transferring Your Company Into North Carolina From Another State, moving

As a business 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.



Friday, October 21, 2016

Foreclosure Hearing - Rushmore Loan Management Services - Cabarrus County North Carolina

cabarrus

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: March 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, October 20, 2016

North Carolina's Mechanics' Lien and Bond Laws - Part 7

This article by Attorney Lee Peindl is one of a continuing series of articles that focuses on legislation affecting North Carolina's Mechanics' Lien and Bond Laws. It is adapted from Attorney Lee Peindl's seminar on Lien Law changes. This is the final installment in this series.

Necessary and Proper Parties to an Action for Lien Enforcement—Effective Immediately
(N.C. Gen. Stat. §44A-13)


Necessary and Proper Parties to Lien Enforcement Lawsuit

Effective immediately, not all owners, lenders or title insurance companies are necessary or proper parties to lien enforcement actions. N.C. Gen. Stat. §44A-13 now states that a former owner is not a necessary party in a lien enforcement lawsuit if the former owner holds no ownership interest in the property at the time the lawsuit is commenced and if the plaintiff seeks no relief from the former owner.

Subsequent purchasers and lenders also are not necessary or proper parties to lien enforcement lawsuits if the lien has been discharged via cash deposit or via a lien discharge bond. Nothing in the revised statute prevents a lien claimant from asserting any claims that are separate and distinct from enforcement of the lien.

Sanctions for False Statements Expanded and Increased

North Carolina’s current law states that a contractor or other person receiving payment for improvements to real property who knowingly furnishes a false statement of the sums due or claimed to be due (e.g., a fraudulent lien waiver) is guilty of a Class 1 misdemeanor. Effective January 1, 2013, the sanctions for such false statements will increase.

In addition to the criminal sanctions, fraudulent lien waivers will constitute deceit and misconduct subject to disciplinary action under Chapter 87 of the General Statutes. As a result, a person that knowingly furnishes such a false statement may have its license revoked, suspended, or otherwise restricted. Moreover, an individual involved may also lose his or her ability to act as a qualifying party for a license.


This is the final installment of this series.

In case you missed them here are Part 1, Part 2, Part 3 , Part 4 , Part 5 and Part 6

If you are in need of legal assistance with this type of matter please fill out our potential client intake form so that Attorney Peindl can evaluate your legal matter.


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Tuesday, October 18, 2016

Foreclosure Hearing - RoundPoint Mortgage Servicing - Mecklenburg County North Carolina



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: March 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, October 17, 2016

Newsletter Recap - October Edition

Necessary Knowledge: October Edition

McGrath & Spielberger, PLLC publishes a newsletter periodically where we share relevant blog posts and firm news. Our latest newsletter was published last week 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.

Indemnification: Should You At Least Have to be Guilty as Charged? by Jason McGrath, Esq.

Your New LLC: The Basics by James Spielberger, Esq.

North Carolina Home Foreclosure Hearings: Should the Borrower Attend? by Jason McGrath, Esq.

North Carolina's Mechanics' Lien and Bond Laws - Continuing Series by Lee Peindl, Esq.

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


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Friday, October 14, 2016

North Carolina's Mechanics' Lien and Bond Laws - Bankruptcy

Part 6 in a continuing series


This article by Attorney Lee Peindl is one of a continuing series of articles that focuses on legislation affecting North Carolina's Mechanics' Lien and Bond Laws.  It is adapted from Attorney Lee Peindl's seminar on Lien Law changes.

Changes to the Notice of Contract Provisions
Effective January 1, 2013
(N.C. Gen. Stat. §44A-23)


Notice of Contract Changes

The current version of N.C. Gen. Stat. § 44A-23 contemplates only the contractor posting and filing the Notice of Contract. Effective January 1, 2013, the statute will allow the owner to post and file the Notice of Contract. Additionally, the deadlines associated with the Notice of Contract will be relaxed. The owner or contractor will be able to comply with the Notice of Contract requirements by posting and filing the Notice of Contract within the latter of (1) 30 days following the date the permit is issued for the improvement of the real property or (2) 30 days following the date the contractor is awarded the contract for the improvement of the real property involved. The statute does not define “permit.”

Bankruptcy Provisions—Effective January 1, 2013
(N.C. Gen. Stat. §44A-18)


Bankruptcy “Fix”

Recent bankruptcy cases generated confusion regarding the date that a lien upon funds arises or attaches, and therefore whether a Notice of Claim of Lien Upon Funds could be served after a party in the contractual chain files bankruptcy.

Effective January 1, 2013, section §44A-18 will make clear that a lien upon funds arises, attaches, and is effective immediately upon the first furnishing of labor, materials, or rental equipment at the site of the improvement. This clarification is intended to permit subcontractors and suppliers to serve Notices of Claim of Lien Upon Funds (and related subrogated Claims of Lien on Real Property) after another party in the contractual chain files bankruptcy.

The revisions also make clear that until a lien claimant serves a Notice of Claim of Lien Upon Funds, any owner, contractor, or subcontractor against whose interest the lien upon funds is claimed may make, receive, use, or collect payments thereon and may use such proceeds in the ordinary course of its business.



We will examine this topic in further detail in upcoming blog posts.

In case you missed them here is Part 1Part 2Part 3 , Part 4 and Part 5

If you are in need of legal assistance with this type of matter please fill out our potential client intake form so that Attorney Peindl can evaluate your legal matter.

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Friday, October 7, 2016

Foreclosure Hearing Private Lender Cabarrus County North Carolina



The following is a summary of a foreclosure hearing in Cabarrus County, North Carolina 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: Private lender

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

Property Location: Concord, Cabarrus County, North Carolina

Property Type: Primary residence

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

Hearing Date: March 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, October 6, 2016

North Carolina's Mechanics' Lien and Bond Laws - Part 5

Part 5 in a Continuing Series


This article by Attorney Lee Peindl is one of a continuing series of articles that focuses on legislation affecting North Carolina's Mechanics' Lien and Bond Laws.  It is adapted from Attorney Lee Peindl's seminar on Lien Law changes.

Changes to the Claim of Lien on Real Property Form and Service of Claims of Lien on Real Property
Effective January 1, 2013


Claims of Lien on Real Property Must Be Served—N.C. Gen Stat §44A-11

North Carolina’s current laws require filing, but not serving, Claims of Lien on Real Property. Effective January 1, 2013, Claims of Lien on Real Property must be served upon the owner, and if the Claim of Lien on Real Property is being asserted by a subcontractor or supplier (e.g. by subrogation pursuant to N.C. Gen. Stat. § 44A-23), then it must also be served upon the contractor. The Claim of Lien on Real Property will not be perfected until it is both served and filed. Therefore, service and filing of the Claim of Lien on Real Property should occur before 120 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien.

Service is deemed complete when the Claim of Lien on Real Property is:

(1)        personally delivered;

(2)        deposited for delivery via the USPS; or

(3)        deposited for delivery via (a) DHL Express; (b) Federal Express; or (c) UPS.

Parties can be served at (i) the address the party listed on the permit relating the project, (ii) the address for the party listed on the tax rolls for any county in North Carolina, or (iii) the address for the registered agent of the party listed with the Secretary of State.

The Form of the Claim of Lien On Real Property is Changing-N.C. Gen. Stat. §44A-12(c)

North Carolina law currently does not require a Claim of Lien on Real Property to contain a certification that it was served or require a subrogated lien to name the contractor through which subrogation is asserted. Effective January 1, 2013, each Claim of Lien on Real Property must include a certification of proper service. If the Claim of Lien on Real Property is being asserted by a subcontractor or supplier (e.g., by subrogation pursuant to N.C. Gen. Stat. § 44A-23), then it must also name the contractor through which subrogation is asserted. Chapter 44A also now expressly allows subcontractors and suppliers to use either (a) their own dates of first or last furnishing of labor or materials, or (b) the contractor’s dates of first or last furnishing of labor or materials (a sample form is attached to these materials).

Practice Tip: Many local Clerks of Superior Court in North Carolina require an additional certification, statement, or other indication that a claim of lien on real property is being filed pursuant to a statute, and they can arguably implement such a requirement under the language of §44A-12.  Oftentimes these Clerks will refuse to file a claim of lien on real property that does not contain such a statement, which can mean a loss of lien rights if the claimant is up against the 120-day filing deadline.

To prevent this problem, practitioners should insert the following statement at the top of the claim of lien on real property form before filing: Filed Pursuant to N.C. Gen. Stat. §44A-12

North Carolina's Mechanics' Lien and Bond Laws - Continuing Series

We will examine this topic in further detail in upcoming blog posts.

In case you missed them here is Part 1Part 2Part 3 and Part 4

If you are in need of legal assistance with this type of matter please fill out our potential client intake form so that Attorney Peindl can evaluate your legal matter.

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Wednesday, October 5, 2016

When Should I Write a Will?

When should you write up a will? Understandably, nobody wants to think about their own death, let alone plan for it. But uncomfortable as the exercise may be, clarifying what will happen to your belongings can be rewarding, leaving you confident that your assets will go to the right people and places. And, if you still need a push, certain life events provide good reason to write a will. Here are seven such occasions:

1. Turning 18.

As a matter of law, in most states in the U.S., this is your first chance to write a legally valid will. By all means, go for it.

2. When you have accumulated some money or other assets.

What constitutes "some money" is going to be different for everyone. Is $500 in savings enough for you to want to direct what happens to it? What about $5,000? Or if you own a car? The larger point is that if you die without a basic will, you'll be what's termed "intestate." As a result, your estate will be settled in accordance with your state's laws about who inherits what — typically spouses, registered domestic partners, and blood relatives. How those assets will be divided among heirs also varies from state to state, so without specific instructions from you, they could wind up distributed very differently than you envisioned.

3. When you get married (or divorced or remarried).

Changes in your most significant relationships are key reasons to write (or rewrite) a will. Do you want your spouse to be among your beneficiaries? Does that change now that he or she is an ex, or perhaps you want to keep them in but switch what's bequeathed to them?

In some states, if you had a will prior to marriage, it may become invalid upon your union — yet another reason to pen an update. For example, in Florida, if your preexisting will doesn't provide for your spouse — or directly state your intention not to provide for him or her — then your spouse would receive the same share of your estate as if you had died without a will; however, circumstances may change yet again if provision for your spouse was made or waived in a separate marital agreement.

4. When you have children (and again when they become adults).

While an intestate situation would likely result in your children receiving some portion of your estate, a will can guarantee they are provided for in the precise way that you intend. Critically, a will is also a place to name a guardian for your child in case both parents die. (Although you don't have to get the would-be guardian's permission, it's a good idea, lest he or she turn down the job when the time comes.) All of your wishes for your children are likely to change when they become adults, so update your will accordingly; you may even want to name one of them as your executor.


5. After you start a business.

Think about your succession plan, whether you intend for family members to take over the business or envision someone doing that job. If you're leaving it to one or more people, be careful to also think about what share of the business will go to each.

6. Buying a home.

This is going to significantly change the worth of your estate — and could affect who you choose to name as your beneficiaries as well as how much you leave them. (In fact, any big asset purchase is a reason to start or revisit your will.) Sometimes home buying coincides with a move. If it does, be sure to consult the laws regarding wills for your new state; you may have to adjust more than you realize.

7. It's been a while.

Many factors can change how you choose to distribute your estate — shifts in personal priorities, family relationships, and even the law itself. Health problems can have a ripple effect; for example, if a spouse begins struggling with Alzheimer's, you'll want to think through how they'll be cared for. Experts recommend that you review or update your estate planning documents every four or five years.

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This article was published originally by The Week, at this link: http://theweek.com/articles/651573/when-should-write. Additional information on this topic can be found in the articles below: 




Monday, October 3, 2016

Your New LLC – Part 3: Federal, State and Local Registration, Licensing and Permitting


Part 3 in a Continuing Series

Starting a new business comes with a lot of financial decisions and obligations. However, as mentioned in previous articles, there are also many legal considerations that need to be addressed at the outset of the business. It seems clear that most new businesses in this day and age choose to operate through a legal entity known as a limited liability company or “LLC”. LLCs are available in all 50 States and are typically formed by filing Articles of Organization with the regulating body of the state.

In many States, like South Carolina and North Carolina, that regulating body is the Secretary of State’s Office. We discussed LLC formation in more detail in Part 1 of our series of LLC articles entitled “Your New LLC” – Part 1: Formation and the Basics”, so please refer to that article for more on this topic (and we discussed how to maintain the protection an LLC affords you in Part 2 of the series – “Your New LLC” – Part 2: Maintaining Your Limited Liability Protection”).

four business partners sitting around a table reviewing documents, business women, business men, SC, NC

But now that you’ve formed your LLC, what else do you need to do in order to be in compliance with all the applicable Federal, State and/or local registration, licensing and permitting requirements? This article sets out some of the major legal considerations that you need to address at each level of government in order keep your LLC compliant in these areas. However, please note that it is not possible to address every consideration for every type of business operating as an LLC, and you should consult an attorney if you have specific questions relating to your business or industry, but this article will serve as a good starting place.

  1. Federal: Unless you are in an industry that is specifically regulated by a Federal agency (e.g., drug manufacturing, interstate transportation, etc.), there is very little for you do on a Federal basis from a registration, licensing or permitting perspective other than to obtain a Federal Employer Identification Number, often referred to as an “EIN” or “FEIN”. This is like the “Social Security Number” for your LLC (in some cases you may even be able to utilize your own SSN in lieu of an EIN).
  1. State: In addition to forming an LLC, there may be other state-level registrations, licenses or permits that you need to obtain. For example, if you sell a good or product (or provide certain specific services) you will likely need to get a sales tax license (known as a Retail License in South Carolina) from the Department of Revenue or similar agency in your state in order to collect and remit the required sales tax on your products. Likewise, you will likely need to register for an employer withholding number from the state if your LLC has employees. And, if your LLC is operating in a regulated industry, such as construction, healthcare, real estate or many others, you will likely need individual and/or LLC licenses from the agency or licensing board in your State that regulates your industry. For example, the South Carolina Department of Labor, Licensing and Regulation consists of more than 50 licensing boards for various industries.
  1. Local: Now that you have all of your Federal and state registration, licensing and permitting requirements covered, it is very likely that your local government will want its “piece-of-the-pie”, too, in the form of local business license and permit fees. These requirements vary greatly from town to town, city to city, and county to county, but you need to check with your local government to see what permits or licenses you may need. And please note that many of these local governments require a business license or permit for home-based businesses, too. This often comes as a surprise to many people and the failure to get properly licensed or permitted could result in considerable fines and penalties.

As previously stated, this article only addresses some of the more universally required registrations, licenses and permits common among many LLC-run businesses, but please be aware that there may be other requirements based on your particular business or industry and where you “transact” business (meaning you may need registrations, licenses and/or permits in multiple state, counties, cities, or towns – this topic will be addressed in a subsequent article).

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Thursday, September 29, 2016

North Carolina's Mechanics' Lien and Bond Laws - Part 4

Part 4 of a Continuing Series


This article by Attorney Lee Peindl is one of a continuing series of articles that focuses on legislation affecting North Carolina's Mechanics' Lien and Bond Laws.  It is adapted from Attorney Lee Peindl's seminar on Lien Law changes.

Contractors’ Lien Waivers and Subcontractors’ Lien Rights—Effective April 1, 2013
(N.C. Gen. Stat. §44A-23)


A Contractor’s Lien Waiver May Not Prejudice a Subcontractor’s Lien Rights

Currently, a lien waiver signed by the contractor before a subcontractor files a lawsuit to enforce its Claim of Lien On Real Property waives the subcontractor’s right to enforce the contractor’s lien on real property (e.g., a contractor’s lien waiver waives a subcontractor’s subrogated lien rights).

Effective April 1, 2013, N.C. Gen. Stat. § 44A-23 will provide that a contractor’s lien waiver will not prejudice the rights of the subcontractor if:

(1)        the subcontractor has given notice to the Lien Agent;

(2)        the subcontractor has served a notice of claim of lien upon funds on the owner; and

(3)        the subcontractor has delivered a copy of the notice of claim of lien upon funds served upon the owner to the Lien Agent.


We will examine this topic in further detail in upcoming blog posts.

In case you missed them here is Part 1Part 2 and Part 3

If you are in need of legal assistance with this type of matter please fill out our potential client intake form so that Attorney Peindl can evaluate your legal matter.Save


Monday, September 26, 2016

How To Dissolve a Corporation in North Carolina?

As an attorney who routinely handles business law related questions this situation is not unusual. Most businesses have a life cycle and it's good to know how to legally dissolve a corporation which has decided to end its operations.

Everything must go sign in store window, going out of business, dissolving a corporation

North Carolina has laws specific to this question. In its most basic form, the corporation needs to vote to dissolve and then file the proper documents with the North Carolina Secretary of State's office. The process is slightly different if you have issued shares or have not issued shares, and if you have a board of directors or not. There are a number of other things a corporation has to do as well. Keep in mind, also, that there are other ways and methods by which a corporation can become dissolved, such as by court order.

A partial excerpt of the relevant section of the North Carolina General Statutes, Chapter 55 Article 14, Part 1, is pasted further below; while not exciting, it's a must-read for anyone considering corporate dissolution or already in the process of dissolving a corporation.

The Small Business Administration has issued a guide that will also assist you in dissolving a corporation. It is not specific to a particular state, but is generally helpful. It is recommended that you procure the services of an attorney in order to assist you with this process.

If you have a need for business law advice or services in North Carolina, South Carolina, Florida, Georgia, or Tennessee, please feel free to contact our office for assistance.



Article 14.

Dissolution.

Part 1.  Voluntary Dissolution.

§ 55‑14‑01. Dissolution by incorporators or directors.

(a)      The board of directors or, if the corporation has no directors, a majority of the incorporators of a corporation that has not issued shares may dissolve the corporation by delivering to the Secretary of State for filing articles of dissolution that set forth:

          (1)      The name of the corporation;

          (1a)    The names and addresses of its officers, if any;

          (1b)    The names and addresses of its directors, if any, or if none, the names and addresses of its incorporators;

          (2)      The date of its incorporation;

          (3)      That none of the corporation's shares has been issued;

          (4)      That no debt of the corporation remains unpaid;

          (5)      Reserved for future codification purposes; and

          (6)      That a majority of the incorporators or the board of directors authorized the dissolution.

(b)      A corporation is dissolved upon the effective date of its articles of dissolution. (1955, c. 1371, s. 1; 1959, c. 1316, s. 261/2; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.19.)

§ 55‑14‑02.  Dissolution by board of directors and shareholders.

(a)      A corporation's board of directors may propose dissolution for submission to the shareholders.

(b)      The following requirements shall be met for a proposal to dissolve to be adopted:

          (1)      The board of directors shall recommend to the shareholders that the proposal to dissolve be approved unless one of the following circumstances exist, in which event the board of directors shall communicate the basis for not recommending approval of the proposal to dissolve to the shareholders at the time it submits the proposal to dissolve to the shareholders:

                    a.     The board of directors determines that, because of conflict of interest or other special circumstances, it should not make a recommendation that the shareholders approve the proposal to dissolve.

                    b.     G.S. 55‑8‑26 applies.

          (2)      The shareholders entitled to vote must approve the proposal to dissolve as provided in subsection (e).

(c)      The board of directors may condition its submission of the proposal for dissolution on any basis.

(d)      The corporation shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders' meeting in accordance with G.S. 55‑7‑05. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider dissolving the corporation.

(e)      Unless the articles of incorporation, a bylaw adopted by the shareholders, or the board of directors (acting pursuant to subsection (c)) require a greater vote or a vote by voting groups, the proposal to dissolve to be adopted must be approved by a majority of all the votes entitled to be cast on that proposal.  (1901, c. 2, s. 34; Rev., s. 1195; C.S., s. 1182; 1941, c. 195; G.S., s. 55‑121; 1951, c. 1005, s. 4; 1955, c. 1371, s. 1; 1989, c. 265, s. 1; 2013‑153, s. 14.)


§ 55‑14‑03. Articles of dissolution.

(a)      At any time after dissolution is authorized pursuant to G.S. 55‑14‑02, the corporation may dissolve by delivering to the Secretary of State for filing articles of dissolution setting forth:

          (1)      The name of the corporation;

          (1a)    The names and addresses of its officers;

          (1b)    The names and addresses of its directors;

          (2)      The date dissolution was authorized;

          (3)      A statement that shareholder approval was obtained as required by this Chapter.

          (4)      Repealed by Session Laws 1991, c. 645, s. 10(c).

(b)      A corporation is dissolved upon the effective date of its articles of dissolution.

(c)      For purposes of this Chapter, a dissolved corporation is a corporation whose articles of dissolution have become effective and includes a successor entity to which the remaining assets of the corporation are transferred subject to its liabilities for purposes of a liquidation. (1901, c. 2, s. 34; Rev., s. 1195; C.S., s. 1182; 1941, c. 195; G.S., s. 55‑121; 1951, c. 1005, s. 4; 1955, c. 1371, s. 1; 1989, c. 265, s. 1; 1991, c. 645, s. 10(c); 2005‑268, s. 31.)

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