Blog, Business
Reinstating an Administratively Dissolved Business
In order to remain in good standing in the State of Indiana, business entities organized for profit (LLCs, LLPs, PCs, Corporations) are required to file a biennial “Business Entity Report,” along with a filing fee. Nonprofit corporations are required to file these reports annually. While it generally only takes around five minutes to file the reports online at inbiz.in.gov, the failure to timely do so may result in the Secretary of State administratively dissolving your business. Although an administratively dissolved business entity continues its existence, it may not carry on any business, except that business necessary to wind up and liquidate its business and affairs. This can have severe consequences. For example, title companies generally will not insure real estate closings if the buyer or seller of the property has been dissolved, and business owners often discover their failure to file their reports only after a closing date has been scheduled. Businesses may also be in danger of losing their corporate name, as the name becomes available for anyone to appropriate after 120 days of dissolution. Luckily, the process for reinstating your business after a dissolution is relatively straightforward. The first step is to receive a “certificate of clearance” from the Indiana Department of Revenue (DOR), certifying that all past due taxes to the State have been paid. This necessitates the filing of a notarized affidavit and updated information about the responsible officers in the business. The DOR also may require additional documentation, such as copies of tax filings for the years the business entity reports…
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Blog, Construction Law
Mechanic’s Lien Basics
As a contractor, subcontractor, worker or suppler in Indiana who has not been paid (or concerned about payment) for your labor, materials or equipment to improve a private owner’s real estate, you have a powerful tool to secure payment for your work, and possibly recover your attorney’s fees and costs incurred to collect the money you are owed – a statutory mechanic’s lien. A mechanic’s lien is a statutory means to secure payment for your labor, materials or equipment by filing a sworn statement in the office of the county Recorder where the work is performed, setting forth the amount of the claim, your name and address, the owner’s name and address, the legal description of the land as set forth in the latest entry transfer books of the county auditor, and the street and number address, if any, of the owner’s land, as required by Indiana law. Indiana law also specifically permits your attorney to file the lien on your behalf. Because a mechanic’s lien right is purely a statutory creation, the requirements for acquiring a mechanic’s lien must be strictly adhered to before your lien can attach to the owner’s property. A right to a mechanic’s lien on an owner’s property improved by your labor, material or equipment does not require that you contract directly with the owner. However, the owner must have authorized or “actively consented” to your improvements to his property. If you contract or otherwise deal directly with the property owner, there is likely no issue as to the owner’s “active…
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What is the biggest cause of construction disputes in 2019?
In past posts, we’ve stressed poor contracts. In HKA’s latest annual report, changes to project scope led to the most disputes, across the spectrum of project types. As contractors take the lead in design/build projects, and subcontract the design function to the professionals, design disputes as to project scope in this process have nearly outpaced contract disputes in HKA’s 2019 summary. HKA is an international consultancy whose report: “CRUX Insight: A Global Sector Market Analysis” can be found at https://www.hka.com/crux-insight/
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Blog, News, Sports and Entertainment Law
Bill Bock and the USADA Team
Kroger, Gardis & Regas partner, Bill Bock, who serves as General Counsel to the United States Anti-Doping Agency (USADA) recently concluded a high profile investigation into anti-doping rule violations engaged in by Alberto Salazar and Dr. Jeffrey Brown, who were affiliated with the well-known distance running group formerly known as the Nike Oregon Project (NOP). Salazar, once regarded as one of the best known running coaches in the world, and Brown, who served for years as a performance consultant to the Nike Oregon Project (NOP), are now suspended from the sport for four years. On September 5, 2019, a AAA arbitration panel found Salazar guilty of trafficking testosterone, tampering with the doping control process and administration of prohibited, over-limit L-carnitine infusions. The arbitration cases against Salazar and Brown were the result of a more than 6 year investigation into the conduct of Salazar and Brown by USADA and a 2 year arbitration process in which Salazar and Brown contested the charges against them and Bock served as USADA’s lead counsel. USADA’s investigation was aided by whistle blowers who came forward with their personal observations and provided USADA with access to their patient records with Brown and their email communications with Salazar. Fallout from the ban has resulted in the NOP being shuttered in an announcement made by Nike the week after the arbitration decisions. “The athletes in these cases found the courage to speak out and ultimately exposed the truth,” said USADA Chief Executive Officer Travis T. Tygart. “While acting in connection with the Nike Oregon…
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Banking and Commercial Transactions, Bankruptcy Law, Blog
Indiana’s Dislike of Cognovit Notes
Indiana doesn’t look kindly upon cognovit notes, even though its neighbor, Ohio, routinely uses them. In fact, Indiana’s dislike of cognovit notes is demonstrated by the existence of an Indiana statute providing it’s a Class B misdemeanor to procure, retain possession of, or attempt to recover upon a promissory note with a cognovit provision in it. (see Indiana Code §34-54-4-1.) So, cognovit provisions aren’t just unenforceable in Indiana, they’re illegal. How can two states with a common border disagree so vastly about the legal attributes of the cognovit note? To answer this, it’s important to understand what a cognovit note is. A cognovit provision is a legal device by which a debtor gives advance consent to a noteholder obtaining a judgment against him or her without prior notice or hearing. A cognovit is essentially a confession of judgment included in a note. Should there be a default, the holder can obtain judgment without giving the debtor notice or a hearing. This allows the noteholder to obtain a judgment without the delays inherent in having to serve notice on the debtor or dealing with any defenses the debtor might throw up. This makes the process much smoother and quicker for the noteholder. But, what about the debtor? Doesn’t this fly in the face of constitutional due process? Indiana thinks so, although several states, not just Ohio, think cognovits are okay. The states who agree with Ohio and consider cognovit notes legal are: Delaware, Virginia, Pennsylvania, and Maryland. Why would any borrower agree to this? Simply because a…
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Blog, Real Estate
Title Commitments A-Z
So you’re buying your first apartment building or commercial property and you receive a copy of title commitment. Now what? A title commitment shows the current state of title as identified by the title examiner. It consists of three parts: Schedule A: This part of the commitment represents the basic facts of the transaction, including the effective date, the proposed insureds (purchaser and lender), the types and liability amounts of the policies to be issued, the estate being insured, how the title to the state is currently vested, and the legal description and address of the subject property. Schedule B-1: This section lists the requirements that must be met before a title policy will be issued, including any or all of the following items: releases of mortgages, releases of tax liens, entity or estate documentation, releases of judgments, correction deeds, and warranty deeds. Schedule B-2: This section lists the title insurance exceptions. The items not being insured by the title company will initially include standard exceptions, taxes not yet due and payable, and further burdens such as covenants, conditions, and restrictions, easements, and/or mineral reservations Obtain complete copies of each exception document identified in Schedule B-2. An experienced real estate attorney will perform a thorough analysis of the Title Commitment. With respect to Schedule A, the attorney will ensure the Owner’s name and Lender’s name are spelled correctly and the policy is the correct amount (which may vary depending on cross-collateralization). With respect to Schedule B-1, the attorney—if representing the owner—will ensure that all documents requested…
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Blog, Business, Employment Law
“Announcing” Employee Departures – A Practical, Nitty-Gritty Guide To Minimizing Disclosures About Former Employees
Clients frequently ask me what the “best” way is to announce a particular employee’s departure from their organization, and – as you might expect – that question gets asked more often when the departing employee is leaving under “less than ideal” circumstances. Sometimes it’s because the employee has done something “sensationally” wrong (bad behavior towards coworkers or clients, using the company Internet for things you’d have been happy never to hear about, criminal activity, etc.); sometimes the employee’s transgressions are objectively ho-hum but they’re a long-tenured or popular fixture with colleagues or customers who undoubtedly will be upset by their exit. Whatever the specifics, the same risks and recommendations generally apply. Legal Considerations Indiana has no specific statute or regulation governing how to “announce” an employee’s departure. Indiana does have a “service letter law” that requires employers to provide certain information in writing to the departing employee, but only in response to a qualifying request from that employee. That’s not the sort of “announcement” most employers ask about (though you should be aware of that law and consult counsel if you ever receive anything you think might be a qualifying request from a former employee). Indiana also has a statute that gives a certain amount of immunity (read: “protection”) to employers who provide truthful information in response to requests from other prospective employers, but that too usually doesn’t apply to the situations causing employers to ask questions about “announcements.” Most often, employers want to know what they can/should tell the rest of their workforce and/or customers,…
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Blog, Construction Law
Indiana is No. 1!
For the best infrastructure in the nation. Wait, what? CNBC’s America’s Top States for Business ranked Indiana’s infrastructure as No. 1 in the country. The rankings were put together using data from the Census Bureau, the Environmental Protection Agency and the U.S. Department of Transportation. The condition of each state’s roads, bridges, railways, waterways and ports, airports and other utilities were considered, along with how much of the country’s population is within a day’s drive of the state. Four major interstates criss-cross the Crossroads of America. Kentucky was ranked No. 2, just ahead of No. 3 Kansas and No. 4 Ohio. Tennessee and Georgia tied for No. 5. The data indicated that Indiana’s bridges are in good condition (just 6.2% in poor condition). That combined with Ohio River and Lake Michigan ports earned big point in the rankings. And in news that may surprise some Indianapolis drivers, just 9.4% of roads were listed as in unacceptable condition. Our first thought is if Indiana’s infrastructure is the best in the country, we’d like to see the worst. They are, in order: Rhode Island, Hawaii, Massachusetts, Maine and Alaska. CNBC rankings of overall business climate ranked Indiana No. 11 nationwide, with good rankings across the board but room for improvement in quality of life.
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Bankruptcy Law, Blog
Coulda, Shoulda, Woulda: Delay in Accelerating Note After Default Fatal
A lender that waited 16 years after default before invoking an optional acceleration clause in a promissory note was prohibited from collecting the unpaid balance and from foreclosing on the mortgage that secured the note. Borrowers Dean and Paula Blair borrowed $110,300 in 1992 from United Companies Lending Corporation (“UCLC”), and granted a mortgage to UCLC on two properties to secure repayment of the loan. Both the promissory note and the mortgage contained an acceleration clause, which permitted UCLC to require payment of the entire balance of the loan when the note or mortgage was breached. Less than a year later, in November 1993, the Blairs sued UCLC and its agent for breach of contract and various torts (the “Ash Suit”). The Blairs stopped making loan payments in June 1995 and filed a bankruptcy petition in August 1997. Although the bankruptcy court subsequently permitted UCLC to file a foreclosure action in state court by terminating the automatic stay, and the trial court in the Ash Suit entered an order in October 1998 permitting UCLC to file a counterclaim against the Blairs to foreclose the mortgage, UCLC did neither. Instead, UCLC filed its own bankruptcy petition in Delaware in March, 1999, and in July 2000, assigned the note and mortgage to EMC Mortgage (“EMC”). The Delaware bankruptcy court did not authorize the sale of UCLC’s assets until September, 2000. What followed was years of delay: October 2003 – the Blairs Chapter 13 bankruptcy discharge was entered March 2007 – the Blairs obtained judgment against the broker in…
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Blog, Construction Law, News
New Protections for Architects, Engineers and Other Design Professionals Senate Bill 230 Becomes Law
On July 1, 2019 Senate Bill 230 becomes law giving important new protections for architects, engineers and other design professionals (DPs). The DPs “duty to defend” their clients becomes null and void for contracts entered into after July 1st. This duty was uninsurable and exposed DPs to significant costs during litigation, prior to any finding of negligence. Also on July 1st, indemnification between parties to construction contracts is reconfirmed, reversing a prior Court ruling. Greg Cafouros, Chair of KGR’s construction law practice group, assisted the American Council of Engineering Companies in shepherding this new law through the Indiana Legislature. Greg is standing third from left at the bill signing ceremony with Governor Holcomb, with Rep. Jerry Torr and Sen. Mark Messmer.
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