Bankruptcy Law, Blog
Coulda, Shoulda, Woulda: Delay in Accelerating Note After Default Fatal
Coulda, Shoulda, Woulda: Delay in Accelerating Note After Default Fatal by Melissa J. De Groff 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…
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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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Blog, Foreclosure
SHERIFF’S SALES IN MARION COUNTY INDIANA ANNOUNCES TIME CHANGES
The Marion County, Indiana Civil Sheriff’s Office has recently announced time changes to their monthly sale process, bidder pre-registration and registration process. The changes announced on March 28, 2019, include: EFFECTIVE APRIL 17, 2019 Sheriff’s sale bidder’s pre-registration and pre-registration packet is due no later than noon one business day before the corresponding sale date. This change will take effect for the April 17, 2019 Sheriff Sale. Preregistration packets should include copies of the pre-registration form (link to the form), state identification card, W-9, Articles of Incorporation, and Legal Entity Confirmation. Registration forms will be due no later than noon before each respective sale date for which an entity participates. Plaintiff bid packages are due no later than 3 p.m. the Friday before the sale date. Preregistration is due no later than one business day before the first respective sale date for which that entity participates. Then yearly after that in January one business day before the sale date. EFFECTIVE MAY 15, 2019: The Oral Auction, previously set at 2:15 p.m., will begin at 10:30 a.m. on the sale date. This change will take effect with the May 15, 2019 Sheriff Sale. Update these changes on each Notice of Sale that is due April 1, 2019. If you have already provided Notices revise and resubmit if necessary.
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Blog, Business, Corporate Law, Employment Law
So…Now What? What Employers Should Know And Be Doing About The New Proposed Overtime/Minimum Salary Rule
If you run a business, there’s a decent chance your inbox has been/will be more crowded than usual this days with alerts about the new Department of Labor (DOL) Overtime/Minimum Wage Rule. And you may also get a slight feeling of déjà vu, because the same thing happened back in the Fall of 2016. That’s when a federal judge blocked the Obama Administration DOL from implementing a rule that would have significantly increased the minimum salary employers have to pay employees who are classified as exempt under the Fair Labor Standards Act (FLSA). Rather than fighting over that version of the rule in court, the DOL went back to the drawing board, and it’s been working on a revised regulation for the last couple years. On March 7, 2019 DOL unveiled its long-awaited proposal for the “Minimum Salary Rule 2.0.” The full DOL proposal exceeds 200 pages, but your friendly neighborhood @HoosierHRLawyer prefers bullet points where possible (actually, one of my mentors taught me to hate bullet points, so here’s some ordered lists instead): What’s The New (Proposed) Rule Say? Well, a lot. But here’s some highlights: If you’re an employer in any of the 50 U.S. States and have “white collar exempt” employees (administrative, executive, or professional), you’ll need to pay them at least $35,308 annually ($679 per week). This is an increase from the current rule, which requires only $23,660 annually ($455 per week). If you don’t pay your exempt workers the minimum salary (consistently each week), you can’t treat them as exempt, and…
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Blog, Environmental Law
PFAS – New Drinking Water Standards Coming
PFAS. They’re everywhere and they’re not going away. PFAS are the toxic substances known as per- and polyfluoroalkyl. Most Americans have PFAS in their blood, it accumulates and it does not break down. According to US EPA, recent studies indicate that PFAS compounds can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals. Both per- and polyfluoroalkyl have caused tumors in animals. The most consistent findings are increased cholesterol levels, with more limited findings related to low infant birth weights, effects on the immune system, cancer, and thyroid hormone disruption. PFAS has been around since the 1940s. People can be exposed through cookware, pizza boxes, and stain repellents, among a host of other household products. Although its production has been curtailed in the US, it can be found in carpet, leather apparel, textiles, paper and packaging, coatings, rubber and plastics. And it’s been found in our drinking water. US EPA has just announced that new drinking water standards will be developed to cope with PFAS. The first steps will be taken by the end of the year. US EPA has been using a drinking water advisory level of 70 parts per trillion, with a “t”, approximately 1000 times as strict has the most toxic drinking water standards. The new drinking water standard may result in a higher or lower standard. PFAS may be added to the Superfund list of hazardous substances and the Toxic Release Inventory under TSCA’s Significant New Use Rules. Much additional work will be needed to understand the sources…
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Blog, News
Announcing Our 2019 Best Lawyers
We are pleased to post that the following attorneys from the firm have been selected to the The Best Lawyers in America (2019 Edition). Banking and Finance Law Jay P. Kennedy Madalyn S. Kinsey James G. Lauck Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Jay P. Kennedy James A. Knauer Closely Held Companies and Family Businesses Law Brian C. Bosma Corporate Compliance Law David E. Wright Environmental Law Gregory P. Cafouros Government Relations Practice Brian C. Bosma Litigation – Banking and Finance Jay P. Kennedy James G. Lauck Litigation – Bankruptcy James A. Knauer
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Blog, Construction Law
Contract disputes remain most common problem in construction
According to the 2018 Global Construction Disputes Report, which found that contractual errors and omissions, poor contract administration and contractual misunderstandings are the leading causes of conflict. The report further found that such disputes take, on average, 18 months to resolve — an increase over 2016. Read the full article here
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Appearances, Banking and Commercial Transactions, Blog
Madalyn Kinsey attended the Annual ACMA meeting as State Chair
Formed in 1974, the American College of Mortgage Attorneys (ACMA) is comprised of more than 400 lawyers in North America who are experts in mortgage law. Madalyn S. Kinsey focuses her practice in the representation of financial institutions in commercial lending transactions, real estate financings, work-outs, floor plan financings, aircraft financing, and bank regulatory matters. She represents real estate developers and investors in the construction, acquisition, management, and leasing of commercial real estate projects. She represents business entities in complex financings and joint ventures. https://www.acmaatty.org/page/AboutACMA
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7 Attorneys from KGR Recognized in The Best Lawyers in America© 2019
Brian Bosma was selected for The Best Lawyers in America in the areas of Government Relations Practice and Closely Held Companies and Family Business Law. With a background in engineering, business and government, Mr. Bosma’s practice is concentrated in the areas of complex business and municipal transactions, municipal bonds and economic development matters. In addition to his legal practice, Brian has been a member of the Indiana House of Representatives since 1986 and is completing his fifth term as Speaker of the House. Greg Cafouros was selected for his Environmental Law expertise by The Best Lawyers in America©. Greg also uses his background as a professional engineer in his construction law practice, as well as in business litigation, real estate law, land use and zoning. He has been a certified mediator since 1996. Greg takes his dedication beyond the office by participating in environmental efforts through the Indy Parks Foundation, and enjoys hiking in Eagle Creek Park and cruising around the Reservoir. Jay Kennedy is celebrating 10 years on The Best Lawyers in America© list and has been selected for three categories: Banking and Finance Law, Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, and Litigation – Banking and Finance. Jay has represented lenders, bankruptcy trustees and court appointed receivers in a multitude of different situations. Jay recently returned from a year-long sabbatical after traveling the United States with his wife, dog, camper, kayaks, and bikes. Madalyn Kinsey has been on The Best Lawyers in America© list for 15 years in the area of Banking and…
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