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Stay Out of Court At (Nearly) All Costs

Posted on | March 30, 2009 | No Comments

  courthouse1

Stay out of court, because courts often make bad decisions that can have enormous impact on your business, your personal life and your finances.  If you stay out of court, you increase your chances of controlling your own fate.  If you let a judge decide, you have no control.

 

One of my law partners has a great expression about clients who get themselves entangled in lawsuits:

 

“When a client has to file a lawsuit or gets sued, he has already lost.”

 

What’s that mean?

 

It means lawsuits cost.  They cost you or your business:

  • Time spent in the courtroom, in depositions, reading documents, talking to your lawyer, in mediation, reading court documents, searching for evidence, etc.
  • Money for attorneys’ fees, expert witness fees, photocopies, travel, etc.
  • Opportunities to make money elsewhere doing other things, to grow your business, or to take personal time to be with family and friends.
  • Your health.  Lawsuits are stressful.  The only thing more stressful than getting sued is having to file a lawsuit.  Lawsuits are fun for lawyers.  I love them, from a professional vantage point.  I get to exhibit and sharpen my advocacy and strategy skills, but lawsuits are no fun for my clients.
  • Goodwill or reputation.  Getting sued can hurt the image people have of your business or you.  The newspapers rarely report stories accurately.  Allegations and even rumors are often reported as facts.  People who really, truly know you and your ethos will be unaffected.  Everyone else,  including your customers, vendors and potential customers, will develop doubt in you to some degree.

 

A good lawyer-friend of mine just got a horrible ruling from a judge in a divorce case.  The judge was wrong and should be appealed, but at what cost to the client?  The judge robbed a father of all time with his children in a visitation ruling.  The father in the case is not a bad guy at all, but the judge, for whatever reason, decided that the man should no longer see his own children. 

 

Amazing isn’t it?  How can one human being exercise that much power over another human being.  This father is dying inside, because he no longer can see the children he loves so much.  It’s very sad, and that judge should be ashamed of himself.

 

In a divorce case, there is not much you can do in advance to avoid a divorce lawsuit.  Save your marriage, if you can.  Or, don’t marry THAT woman in the first place.  Ladies, don’t marry THAT man!  That is the only lawsuit prevention available in a divorce context.

 

But what about your business affairs?

 

Do you take these preventative measures:

  • Meet with your lawyer when you are unsure of your rights?
  • Meet with your CPA, lawyer and insurance agent at least once every year?
  • Have your lawyer draft or review all your contracts?
  • Have your lawyer develop an asset protection plan?
  • Use limited liability entities properly to create a “corporate shield?”
  • Train your staff on a regular basis?
  • Have processes and procedures developed into an operations manual?
  • Properly use insurance to transfer liability risks away from you or your business?
  • Etc.

 

If you answered “no” to any of these questions, then it’s time to go see your lawyer.

REAL ESTATE QUESTION- Tenant Screening

Posted on | March 17, 2009 | 2 Comments

 

Question from one of Matt’s readers-

“How should I screen tenants?”

Matt’s Answer-

That is a great question and more important today than ever. As the foreclosure wave pushes more and more people out of their production homes and into the rental market, landlording is seeing a rebirth. Once again, it is not so bad to hold rental properties. Generally, the number of vacancies is dropping. And, more and more investors are moving away from the more creative real estate investing techniques and back to buying and holding rental properties.

 

Landlording is back!  (I never thought it went away, actually.)

 

For both the seasoned landlord and the newest of real estate investors, it is important to screen tenants and have a command of the tenant screening process. There are a number of factors to consider, such as:

· What forms do I use?

· Do I require an application fee?

· How do I screen?

· What is my screening criteria? What makes a good tenant?

· How do I avoid discrimination claims? What are my duties and rights?

· How do my rental application and lease agreement work together?

· Was does it really mean to “pre-screen” tenants?

· Should I use a tenant screening service?

These are great questions, and the answers are relatively simple. It does, however, take some time to learn about your rights, responsibilities and opportunities, as they relate to tenant screening. I cannot address all these topics here, but let me take the last question- “Should I use a tenant screening service?”

The answer is: Yes, you better. Using tenant screening services is the most cost- and time-effective way to improve your chances of a successful landlord-tenant relationship. Good tenant screening services are a bargain. I have written for more than a decade on the subject, and believe in them more today than ever.

Do “bad” tenants slip through, even with a tenant screening company helping you? Yes, it happens. But, for the most part, professional tenant screening greatly improves your odds of finding the best tenant in your pool of tenant applicants. I believe in tenant screening services so much that I agreed to teach a class on landlording, called “Landlording 101,” for the local office of the National Tenant Network, last year. WE WILL PROBABLY OFFER THE CLASS AGAIN THIS SPRING!  IF YOU ARE INTERESTED IN ATTENDING, EMAIL ME.

 

Also, once each month, I host the “Landlording Subgroup” of the CENTRAL INDIANA REAL ESTATE INVESTORS ASSOCIATION.  The next meeting will be held in my law office building- 151 N. Delaware Street, downtown Indianapolis at 6:00 p.m. on March 23.  If you’re a CIREIA member, register to attend the meeting at www.cireia.org.

 

At these classes, I answer the questions listed above. If you are a landlord and have not attended one of my classes, please do so soon.  If you haven’t established a relationship with National Tenant Network or another such service, do so this week. That is one of the first and certainly most important steps in the tenant screening process.

WARNING- Asset Protection Is NOT Done Off-Shore

Posted on | March 16, 2009 | No Comments

 

My blog just got spammed by some company trying to get people to invest in a corporation based on some Caribbean island.  The spam came across as an advertisement for “asset protection.”  I deleted the comment and will not be posting it on this site!  The spammer was trying to comment to my post Asset Protection-  “It’s As Easy As 1 – 2 – 3!”

 

So, I need a Caribbean trust or corporation to protect my assets?

 

Hogwash!

 

Asset protection is the lawful use of entities, contracts, business practices and other legal structures that are recognized and permitted under existing law.  Everything you need to protect your personal and business assets can be found right in your home state.  You do not need to go off-shore to protect your assets.  In fact, going off-shore raises another type of risk to your assets and can, therefore, be self-defeating.

 

Asset protection is NOT trying to hide assets in a Caribbean-based trust or corporation.  Nor do you need a Delaware corporation or a Nevada corporation, unless you live or operate your business in those states.  Nor do you lawfully protect assets by trying to hide them, by committing crimes or by engaging into fraudulent transfers.

 

The law provides ways to protect your assets!  You’ve just got to understand what your risks are and what lawful means are available to address those risks.  It’s really not that difficult.  And there is no trickery involved.  Trickery usually leads to other problems.

 

Do you know what a “legal witch doctor” is?  It’s a term I coined years ago to describe people who talk about the law and who practice law without a license but with a particular financial motive impacting their advice.  If a legal witch doctor tells you that off-shore trusts are the key to asset protection, you can bet that off-shore trusts are being sold to you.

 

Buyer beware!  Avoid legal witch doctors.  Go see your lawyer.

Indiana Judge Bravely Ignores State Statute

Posted on | March 12, 2009 | 4 Comments

 

Judge David Dreyer Judge David Dreyer- 2

(photos of Judge David Dreyer with Indiana Supreme Court Chief Justice

& a Notre Dame priest-   from Judge Dreyer’s website- http://www.judgedreyer.com.)

 

More than 10 years ago, Indiana passed a “tort reform” law that limited the amount of punitive damages that could be awarded in a single case.  There was a wave of “tort reform” years ago, as there was public outrage against several large damages awards.  Remember the old lady burnt by hot coffee at McDonalds?

 

Tort reform-  the idea was that juries were running out of control and were awarding excessive damages intended to punish bad defendants.  Punitive damages are intended to punish and deter, while compensatory damages are intended to make the plaintiff whole again.  Many states passed laws limiting how much juries could award in punitive damages.  We have had similar caps of medical malpractice claims for years and years now.  Most states do.

 

So, for the past 10 years, all jury awards have been capped in Indiana, and the same holds true for most states.  But wait a minute. . .  ENTER JUDGE DAVID DREYER.

 

David Dreyer, a Marion County, Indiana judge, recently refused to reduce damages in a priest sex-abuse case, holding that Indiana’s punitive damage caps are unconstitutional.  Judge Dreyer issued a 20-page ruling last Friday in John Doe v. Father Jonathan Lovill Stewart, No. 49D10-0402-CT-0443. The case involves allegations from a man (John Doe)claiming that he was molested by a Catholic priest when he was 10 years old, back in 1993. A jury awarded $5,000 in compensatory damages and $150,000 in punitive damages.  Under the Indiana “tort reform” law, the punitive damages would have been reduced to $50,000.  That law provides that punitive damages cannot exceed three times the compensatory award or $50,000, whichever is greater.  However, the “tort reform” law capping punitive damages was not passed until 1995, two years after the boy was molested.

Judge Dreyer held that the “tort reform” statute is not retroactive and cannot be applied to a 1993, event. 

 

Judge Dreyer had another rationale for ignoring the $50,000 cap.  He held that the 1995, law violates the Indiana Constitution with respect to separation of powers and right to trial by jury.  The Judge concluded that the law, passed by the Indiana legislature, violates a person’s constitutional right to trial by jury:

“The Indiana Constitution protects each branch of government from interference with each other, and further guarantees Indiana citizens will have their civil cases decided by a jury,” he wrote. “The Statute’s two provisions … interpose the will of the General Assembly to supersede otherwise valid verdicts. Accordingly, it contradicts the Indiana Constitution and should not interfere with Doe’s punitive damage award.”

Judge Dreyer acknowledged that other states might not have similar constitutional limits, but that Indiana’s constitution clearly does.

 

It would have been easier for Judge Dreyer simply to uphold the punitive damages cap, and allowed the plaintiff to appeal the issue to the Court of Appeals.  Judge Dreyer could have “passed the buck” and not suffered any criticism or review.  But, he didn’t “pass the buck.”  He did what he thought was right, and struck down a law that he felt was unconstitutional.  Remember that Judge Dreyer is a trial court judge!  Normally, appellate courts strike down laws.  It is rare for a trial court judge to strike down a law on constitutional grounds.

 

Whether you agree or disagree with Judge Dreyer’s legal opinion and regardless of how you feel about large punitive damages awards, you have to applaud Judge Dreyer’s commitment to the law.  It took much courage to strike down a 10-year old law in this fashion.  If you assume that he truly believes what he wrote, you have to feel good about a judge trying to do the right thing, follow the law despite the personal consequences, and  honoring his Oath of Attorneys.  It’s refreshing to see a judge give so much thought to doing what is right, rather than what is easy.

Indiana’s Security Deposit Law

Posted on | February 26, 2009 | 17 Comments

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Question from one of Matt’s readers-

“Dear Mr. Griffith,

I rented an apartment in West Lafayette IN for six months and the lease ended on DEC 31, 2008. I had vacated the apartment on DEC 22, 2008 and left the keys and forwarding address with the landlord. Does the 45 days count from the date my lease ends or the date I left the forwarding address? I will appreciate your response.

Thanks,

S.A.”

Matt’s Answer-

Your question concerns Indiana’s security deposit statute, also known as the 45-Day Letter Rule.  Most states have a similar rule.  The 45-Day Letter Rule governs how a landlord of a residential property must handle the tenant’s security deposit after the lease is terminated.

In Indiana, the 45-day triggering event is the date the landlord regains possession. For you, that would be the date you returned the keys.

The statute requires the landlord to provide you (via US mail is acceptable) with an itemized list of any damages, which can include unpaid rent, and the balance of your security deposit, if any.

I represent far, far more landlords and property managers than tenants.  So, I can say with great confidence that the 45-Day Letter Rule is not well understood or even known by most landlords.  In fact, when I speak at the “Ask Matt” portion of the monthly meetings for CIREIA, I often ask how many attendees (real estate investors) do not know about the 45-Day Letter, and there are no fewer than 10 hands raised each time.

For more information on this law, visit the "Ask Matt" page at CIREIA’s website-  http://www.cireia.org/clubportal/ClubStatic.cfm?clubID=1507&pubmenuoptID=21366

Another question from one of Matt’s readers

"I was at the CIREIA meeting tues. and had a few questions about the 45 day rule.

1. Does it apply to section 8 also?

2.Does this also apply to section 8 unpaid utilities and any damages after they move out?

Thanks for your time,

B.H."

 

Matt’s Answer-

The 45-Day Letter Rule applies whenever any landlord takes any "security deposit" from any residential tenant in Indiana.

A "security deposit" is anything beyond the first month’s rent.  So, if you take the first and last months’ rent, you have a security deposit in the form of the last month’s rent.

What’s CIREIA?   

cireia_logo_rgb1

It is the Central Indiana Real Estate Investors Association.  I’ve been its Legal Affairs Chairman for more than 15 years.  For more information on CIREIA, go to its website- CIREIA’s Website.  If you are serious about owning investment real estate in Indiana, you should be a member of CIREIA.  Joining CIREIA for $150/year-  that’s a “no-brainer.”

 

 

 

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Piercing the Corporate Veil/Shield

Posted on | February 17, 2009 | 1 Comment

 

The single greatest advantage to operating a business as a corporation is that the owners of the business protect their personal assets from the corporation’s creditors. Incorporation creates a fictional “shield” or “veil” between the corporation’s owners and its creditors. Generally, incorporation protects its owners from personal liability and limits an owner’s risks to the loss of his or her investment in the corporation.

Unfortunately, many business owners form a corporation but fail to take the necessary steps to maintain the integrity of the corporation. Even worse, owners will blur the distinction between their personal affairs and the corporation’s business. The consequences are that the corporate veil can be “pierced”, and an owner may be subjected to personal liability by the corporation’s creditors.
Maintaining the corporate veil is not difficult, but it does require some simple tasks completed and vigilance. Here is a partial list of tasks which should be completed in order to maintain the integrity of the corporate veil:

1. Never commingle personal and corporate finances. Never pay personal expenses with corporate funds.
2. Corporate officers should always execute documents in their corporate capacity. For example, sign documents as “John Doe, As President of ABC Corporation.”
3. Hold annual meetings of shareholders to elect directors.
4. Hold annual meetings of directors to select officers.
5. Create and maintain a corporate record book, which should include minutes of all corporate meetings.
6. Prepare and adopt good Articles of Incorporation and By-Laws.
7. File biennial reports with the Secretary of State.
8. Register all assumed business names with the Secretary of State and appropriate county recorders.

This list is certainly not exhaustive, but completing these tasks will greatly help preserve the protections afforded to business owners by incorporation.

Go see your lawyer for help help in reviewing your present corporate documents.  Make any necessary changes to those documents.  Prepare notices and minutes of meetings.  Do all this and more ASAP.

LLC’s, Charging Orders & Judgment Liens

Posted on | February 17, 2009 | 2 Comments

Question from one of Matt’s readers-
“A residential rental property is owned by a single member LLC. The tenant files a frivolous lawsuit and wins. The amount of damage awarded to the tenant exceeds the amount covered by the liability insurance on the property. What are all the possible ramifications to the property, the single member LLC that owns the property in question or the natural person who is the single member of the LLC? Charging order, lose ownership of the property, lose ownership of other assets owned by the LLC, etc.?
Thanks Matt”

Matt’s Answer-

What a great question. There are several issues here. I’ll take them in chunks.

FRIVOLOUS LAWSUIT

I’m going to assume that your case was in a small claims court, even though you didn’t say that. Crazy things happen in Small Claims Courts. The level of “lawyering” and judging is often not as high as it is in superior and circuit courts. There are exceptions, of course. But, your case shows why we have appellate courts to fix what lower courts screwed up.
Appeal!
In Marion County, Indiana, appeals from the Small Claims Courts go to the Superior or Circuit Courts. In Marion County, you get a fresh start. . . a new trial. The Small Claims Court judgment is vacated. You start over and get a chance to get the case determination right. So, my first response is: Appeal! That’s an easy solution to all your problems.

INSURANCE

Secondly, ask your insurance agent why you’re not fully insured! Should you be suing your insurance agent for malpractice? Maybe the insurance agent’s Errors & Omissions coverage is your solution.
On a side note, I’d encourage you to learn how to communicate properly with insurance agents. There are specific things you should do in order to develop the right Insurance Plan for your business, and I can share those techniques with you in another article or during a consultation.

JUDGMENT LIENS

When a judgment is entered by a court of record in an Indiana county, a lien is automatically created against any real property owned in the same county. If the judgment-defendant has real property in other counties, those properties are not impacted. However, a judgment in “County A” can be “recorded” in “County B.” At that point, the judgment is a lien on real property owned by the judgment-defendant in both counties.
Importantly, judgment liens apply not only to the subject property but to ANY real property owned by the judgment-defendant.

PERSONAL LIABILITY

If I understand your facts, there is no judgment against the LLC owner, just the LLC. In that case, there should be no collection efforts against the LLC owner. A plaintiff cannot collect a judgment issued against an LLC from the assets of the LLC’s owner. So, the owner (you) should not be concerned about a charging order. Actually, charging orders are a good thing, in a sense (read on).
Some of you might be asking: “What’s a charging order?”
A charging order only applies to LLC’s, not corporations. A charging order is an order that requires the LLC to pay to the plaintiff any monies that would be distributed from the LLC to the owner. There must be a judgment against the owner, before a charging order could be issued. Charging orders are the only remedy a plaintiff would have to collect from the ownership interests a judgment-defendant would have in an LLC. So, in other words, a plaintiff cannot acquire an owner’s ownership interests in an LLC. By contrast, a plaintiff can acquire a judgment-defendant’s stock in a corporation.
Why do the courts distinguish between corporations and LLC’s in this area of the law?
The rationale is that LLC’s are partnerships and that a plaintiff should not be permitted to become someone’s partner. So, if A and B are partners in an LLC, and C gets a judgment against B, C should not be able to enforce the judgment to become A’s partner. A has the right to chose his partners. He picked B, not C, to form a partnership. C could get a charging order against the LLC and collect any monies that would be distributed from the LLC to B. If A and B owned a corporation together, then C could acquire B’s stock and become a co-owner with B.
Back to your situation. . . the law concerning charging orders is irrelevant to your situation for the reasons I described above. What you have at risk is your equity in the LLC. You cannot do much about the equity you have in the LLC at this point, now that the judgment was entered. Any transfers of equity you were to make now could be considered “fraudulent transfers.” And that is an entirely separate topic for another article.

THE LESSON(S) HERE-

Call your attorney. You lost a lawsuit, and probably did not have a good attorney with you in court! You saved the cost of having an attorney in court, but at what greater cost? Was it worth it?
Appeal bad decisions.
Learn how to communicate with your insurance agent to develop the right Insurance Plan.
Plan. Planning is an activity that occurs in advance. I’m not sure from your short question what your Asset Protection Plan includes. Clearly, planning is important, as your situation reveals.

Good Customer Service = Good Legal Strategy

Posted on | February 10, 2009 | 2 Comments

 

Chris Brogan posted a story on how well his friend was treated by SanDisk when her mp3 player broke- http://www.chrisbrogan.com/guest-post-the-sandisk-story/.  After you read Chris’ blog, come back here and finish reading this blog entry.

 

Very few lawyers talk about customer service or quality assurance programs for their business clients.  That’s a shame, because happy customers aren’t going to sue you or your company.  So, shouldn’t lawyers teach their clients ways to make customers happy without (1) incurring other liability risks or (2) bankrupting the company?

 

Developing systematic ways to field and address customer complaints reduces the risk of getting sued for breach of contract, breach of warranty, products liability and even negligence.  Make your customers and clients happy, and you’ll make more money and get sued less often.  It’s that simple.

 

The client is NOT always right.  However, you should endeavor to make every customer FEEL like the customer was not wrong.  Angry customers are not simply liability risks.  Unhappy customers influence other potential or actual or angry customers.  In a small town, people talk, and negativity about your business can spread fast.  Ask any restaurant owner/manager if that’s true or not.  For large companies, blogs and chat rooms are where bad will for your company, product or service spreads and spreads fast.  You might lose future business, if an angry customer publicly trashes your services, products or company.  Additionally, unhappy customers encourage other unhappy customers to take action against you.  There is a negative snow ball effect in play here, and that can translate to claims and lawsuits. 

 

Study how Dell Computers got trashed on blogs and chat rooms for years, until it discovered how to turn all those customer questions and concerns into (1) ways to improve its products and operations, (2) cross-market other products and services  and (3) neutralize disappointed customers.  Dell’s story is another good example of how to identify unhappy customers and turn negatives into positives.  Obviously, you can’t make an unhappy customer happy, if your angry customers can’t be identified and have no way to interact with your company.  So, what are you doing to survey customer satisfaction?  No, seriously- WHAT ARE YOU DOING ABOUT THIS?

 

If a customer slips and falls in your store or office, go out of your way to make that customer  happy, without admitting fault.  An angry customer with a twisted ankle is far more likely to sue you than a pampered customer with a twisted ankle.  So, call a doctor.  Get some ice.  Send an employee for a bottle of pain reliever.  Move a cushioned chair from the back room to make the customer comfortable.  Comp a meal.  Waive a fee.  Offer a free service.  Ask what the customer wants.  Show concern and compassion.  Assign a key manager to stay by the customer’s side until the situation is resolved.  Etc., etc., etc.

 

It wouldn’t hurt to call your business advisor, coach or lawyer while the customer is still in the store for additional ideas.

 

It’s that easy.

 

In a future blog, I’ll describe how to develop a plan to make customers happy and angry customers less likely to file claims.  They key is to systematize dispute resolution processes at all levels of your business operations.  Avoiding lawsuits starts with your lowest ranking employee.  Business systems make it possible to ensure even the lowest ranking employee is a great tool in making potential lawsuits disappear and happy customers return.

Are Covenants Not to Compete Really Enforceable?

Posted on | February 2, 2009 | 1 Comment

READER’S QUESTION:  Are Covenants Not to Compete Really Enforceable?

MATT’S ANSWER:  Yes.  In most states.  In Indiana for sure.  In most cases.  If “reasonable.”

 

 There is a huge misperception that covenants not to compete (“restrictive covenants”) are unenforceable.  I hear that all the time.

Where do people get such bad legal information so often?

Restrictive covenants are enforceable in Indiana and many other states, if “reasonable.”  The courts have defined “reasonable” to mean limited: (1) in the time or duration of the restrictive period; (2) in the geographic range or area and (3) to activities likely to protect a legitimate business asset or interest.  So, for example, if a truck parts salesman with inside “secret” knowledge of customer needs, pricing strategies, new marketing strategies, costing, etc. quits his job to work for a competitor, a restrictive covenant of 18 months in the same sales territories would probably be enforceable.

Restrictive covenants are even more important and easier to get approved in court, when a business owner sells to or merges with another business.  In those situations, the buyer wants to know that he is the only person or company that will have access to the business assets (information, data, documents, etc.) that is being purchased.  The courts are much more likely to enforce a restrictive covenant in these situations.

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CHECK OUT OTHER ARTICLES I’VE WRITTEN ON IMPORTANT BUSINESS, REAL ESTATE AND LAW-RELATED MATTERS:   http://indiana-attorneys.com/articles_news/index.htm

 

 

Asset Protection – “It’s as easy as 1 – 2 – 3!”

Posted on | January 25, 2009 | 1 Comment

If you own a business or are going to start one, you MUST develop a plan to keep your personal assets protected against business risks.  Such planning is as important as your marketing plan, your capitalization plan, or your sales strategies. 

So, how do you develop and implement an asset protection plan?

There are time-tested, court-approved and easy things to do to keep a lawsuit from ruining your finances.  Here are the three key elements:

  • #1    Use a corporation or LLC.
  • #2    Get some insurance.
  • #3    Develop and implement Standard Operating Procedures.

That’s it.  Those are the keys.  There’s more to learn about each of these three key elements, of course, but EVERY business should have an asset protection plan and EVERY plan should include all three elements.  WITHOUT EXCEPTION.

You can’t wait to get sued and then implement your protection plan.  At the moment you have a dispute with a customer or another business, it is too late to plan.  So, you have to develop and implement your plan TODAY to prevent TOMORROW’S risks from ruining your financial FUTURE.

Asset protection planning is not fun.  It’s not exciting.  It doesn’t generate profits.  And, it costs some money to do it properly.  So, most owners ignore it or avoid it, until it’s too late.

DON’T WAIT UNTIL YOU GET SUED!  An ounce of prevention or the pound of cure?  It’s your choice.  Which will you chose?

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