Thursday, 22 January 2015
Contract Law - Internet Forms and Attorney Fee Provisions
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As an attorney, often times clients come to us wanting us to fix a situation after the client has tried to take on a legal matter themselves.  This is completely understandable since I know that my family has to closely watch our expenditures on a regular basis to keep up with the cost of living these days.  However, practicing law without the proper training can cause very expensive problems.  One particular instance that we have seen arise time and time again involves the usage of contract forms from the internet.  Many of these internet forms have numerous problems and/or are often misused. 

One major problem with such forms involves the lack of appropriate legal provisions in the documents to fully protect the client's interest.  Almost all attorneys include an Attorney Fees Provision in any contract they draft.  This often times allows the winner in a subsequent dispute between the parties to recover attorney fees and costs.  A common attorney fee provision would say something like this: "if it is required for a party to this agreement to hire an attorney to enforce the provisions herein, then the prevailing party is entitled to recover their reasonable attorney's fees and costs".  This is one of many provisions that are often left out of internet contract forms and the implications can be huge. 

When we are hired by a client to fix a problem with an internet form contract it is always after a dispute has arisen between the parties.  A great bargaining tool that an attorney can have in such a dispute is the threat (or promise) that if the opposing side does not comply with our demands then we will sue for not only our damages but OUR ATTORNEY FEES and costs.  The other side does not want to pay their own attorney let alone your attorney fees.  However, if the proper attorney's fee provision is not in the contract or not allowed by a statute then you cannot legitimately demand attorney fees.  If you can't demand that they pay your attorney fees then they don't care if your attorney fees quickly add up.  Many times, the attorney fees in a major dispute can add up to exponentially more than the relatively small amount that it would have cost the client to have an attorney to draft the document in the beginning.     

To learn more about how we can assist you in Contract Law  Contact Us Here or Call Us 615.444.2345  

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Posted on 01/22/2015 10:13 AM by Jonathan Tinsley
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Tuesday, 13 January 2015
LLC's- Easier Formed than Run?
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Technology and the internet have streamlined so many "official" processes that used to require hardcopy forms, the antiquated postage stamp, and worst of all- actual trips to and long waits inside government buildings.   This is true for the creation of a limited liability company ("LLC") in Tennessee.  Thanks to an intuitive and easily navigable interface, the Tennessee Secretary of State's website will allow you to create your own LLC (or Corporation or Partnership) with basic information and a credit card in less than 15 minutes' time.  The process is incredibly, perhaps deceptively, simple. 

This is by no means a criticism of the online formation process; the website displays the requisite legal notices and makes the process more accurate and efficient.  However, the ease with which an LLC can be created may also downplay the responsibilities of running the entity to new or prospective "Members" (LLC owners).  It is not uncommon that we receive calls from Members seeking an explanation of the "administrative dissolution" of their company.  Many assume that unless the LLC is conducting certain business or making money, there is nothing that needs to be done.  Unfortunately, this is not the case.

Generally, there are two main culprits of administrative dissolution in these circumstances.   The first is the annual report.  Every LLC must file an annual report and pay an annual fee.  These are usually due April 1 for the previous calendar year.  The annual report is simple, and is predominantly concerned with any changes to the membership (ownership), registered agent, or address of the LLC.  The annual fee is calculated in the same manner as the initial formation payment ($50/Member, with a $300 minimum and a $3,000 maximum).  The report and payment can both be submitted online.   

The second culprit is the Franchise and Excise Tax, which is imposed on nearly every registered entity in Tennessee, save for a select group which may qualify for an exemption.  Franchise and Excise Tax is based on net worth as of the close of the year, but a minimum $100 payment is due annually, regardless of the LLC's worth (or lack thereof).  In order to pay this tax, the LLC must first register with the Tennessee Department of Revenue.  This can also be done online, but the process is notably trickier than LLC formation.

The government websites referenced above both offer great resources and downloadable guides for anyone willing or interested in getting more information.  The problem seems to be that some DIY LLC owners are unaware of additional requirements until after it is too late.   Considering that forming an LLC is equivalent to creating a "person" in the eyes of the law, it only seems fitting that there should be some upkeep involved.  Consulting a business attorney about LLC formation is the best route (unsurprising, coming from a business attorney), but to anyone looking to create an LLC, educating yourself on the requirements at the start can save a great deal of time, hassle, and money down the road. 

To learn more about how we can assist you with your Business Legal Services Contact Us Here or Call Us 615.444.2345

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Posted on 01/13/2015 12:51 PM by Sharon Ramos
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Friday, 9 January 2015
Civil Litigation: Landlord Tenant Accepting Payment After Notice Of Eviction
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The legal arena surrounding residential landlord tenant law can be like a mine field at times.  One particular trap that many landlords find themselves in, involves a situation where a tenant has failed to pay their rent.  In response, the landlord sends an eviction letter and eventually files a detainer suit on the matter to evict the tenant from the property.  Sometime between the eviction letter and the court date, the tenant makes a payment to the landlord for rent.  This payment many times is minor in relation to what they owe in arrearages and sometimes it is not even a full month's rent.  The landlord is happy to get some money out of the tenant, so, they accept it and continue on with their eviction.  On their court date they learn that the judge is dismissing their case for accepting the payment.  The landlord pleads with the judge that the money they accepted was only a small part of what they are owed but it does no good and the judge dismisses their case anyway.  

The dismissal is the result of the legal doctrine called waiver.  Waiver is a concept where the landlord surrenders a legal right to proceed with the eviction by accepting a portion of the rent.  This doctrine is established by case law and in some counties by statute.  In counties that are controlled by the Uniform Residential Landlord & Tenant Act the doctrine is codified in TCA 66-28-508 which states "If the landlord accepts rent without reservation and with knowledge of a tenant default, the landlord by such acceptance condones the default and thereby waives such landlord's right and is estopped from terminating the rental agreement as to that breach". 

Once the judge has dismissed the landlord's lawsuit, the landlord must start all over again in the eviction process.  Having to start all over can of course be a very costly and time consuming process that should always be avoided.  This is only one of the many predicaments that a landlord can find himself in, regardless of his best intentions.  That is why it is so important to hire an attorney well versed in landlord tenant issues early in the eviction and collection process.   

To learn more about how we can assist you in a Civil Litigation issue Contact Us Here or Call Us 615.444.2345

 

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Posted on 01/09/2015 1:36 PM by Jonathan Tinsley
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