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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.

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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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