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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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