NSF Check
I have been receiving a rush of inquiries regarding bad checks. This is a crime, but be aware there are also civil penalities for this crime.
Damages
If a person fails to pay amount of check within 30 days to payee after written notice is given that the check came back with insufficient funds, then that person is liable for amount owing on check, damages treble the amount so owing (no less than $100 and no more than $1,500), plus attorney fees and court costs. 720 ILCS 5/17-1a
Burden of Proof
To recover, plaintiff must prove (1) defendant delivered check to obtain personal property; (2) defendant knew at the time the account was insufficient; (3) defendant acted with the intent to defraud; and (4) defendant failed to pay on demand. Vetean Supply Co. v. Swaw, 192 Ill.App.3d 286 (1st Dist. 1989).
It’s Back to School Time … for your kids and your business.
I always enjoyed the start of a new school new. Everything is fresh and exciting. New school supplies and clothes, not to mention goals set for the new academic year.
The same concepts apply to your business. Did you know that the Fall Quarter is generally the second best time of the year to make money? The reasons are two fold: (1) people are back from vacations/family time and ready to purchase your products or services and (2) people are back from vacations/family time and ready to buckle down and work.
It’s an exciting and great time to take action. Businesses are preparing for and setting new goals. Individuals set aside money knowing that the start of the school year will cost them money. With both parties preparing to take action, it’s a profitable time of year.
The questions business owners need to ask themselves include the following: What action to we want to take going forward? What happened within the business last year we want to see happen differently this year?
There is a good chance I can help you. Let me know how I can be of service this exciting season.
Slow Down on Illinois Roads or You’re Going to Pay for It!
Illinois is increasing the fines for speeding in IL starting September 15, 2010. Most fines for traffic violations have not increased in Illinois since 1992.
Fines for speeding up to 20 mph over the limit will increase from $75 to $120. Those driving 20 mph over the speed limit, but less than 30 mph will see their find increase from $95 to $140. Those who drive more than 30 mph over the limit will pay $160, instead of the current $105.
Seat belt violation citations fines will increase from $55 to $60. Unlawful use of a license increases from $750 to $1,500. Misdemeanor driving or driving with a suspended or revoked license increases from $1,000 to $1,500. Driving under the influence of alcohol or drugs increases from $1,000 to $1,500. Unlicensed driving increases from $1,000 to $1,500.
Pursuant to the Illinois Supreme Court Rules, up to $30 is taken off the top of the fine for various court fees and the rest of the fine is divided up among the local government, the state treasurer and the county general fund. After the court fees are subtracted from the fine, the local government receives 44.5%, the state treasurer 16.825% and 38.675% goes into the general fund of the county where the offense took place.
Keep in mind, that a new law went into effect in June which will take an additional $15 per ticket issued by any law enforcement agency in the state to benefit the Illinois State police, even if the state police were not involved in the traffic stop. This fund is intended to keep state troopers from being laid off because of state budget cuts.
Estate Planning: Living Wills, Durable Power of Attorney for Heath and Finance
Estate planning frequently involves more than just having a Will. Living wills as well as durable powers of attorney for health care and finance protect your estate in case your are incapacitated, but not deceased.
A living will permits you to express your wishes regarding resuscitation and life maintaining measures in the event you later become incapable of communicating your desires. It can help you try to avoid what some believe to be an undignified existence by allowing you to decline medical treatment, food, and water if these things are “artificially” keeping you alive. The choice is yours to make and physicians will honor your wishes if the proper documents are submitted.
A durable power of attorney for health care, on the other hand, allows you to appoint another person to make decisions for you regarding your medical care in the event you cannot. This power is broader than the living will. It, too, covers situations where you may be terminally ill and need resuscitation or other life maintaining measures to stay alive. Your agent, or attorney-in-fact, can decline these treatments if you give them that power. It also applies to situations where a health care decision is required but you cannot make that decision yourself (i.e., you are unconscious as a result of injury). Your agent could authorize or decline medical treatment on your behalf.
A durable power of attorney for finance allows you to appoint another person to make decisions for you regarding your real and personal property. This power is broad and covers situations where you are terminally ill or unconscious as a result of injury, but still living. Your agent, or attorney-in-fact, can manage your financial affairs as you so wish.
If you decide to create either a living will or a durable power of attorney for health care and/or finance, you will need to consider several things before you complete the documents. You will have to provide the name and contact information for the individual(s) that you nominate to make decisions for you in the event that you cannot make them.
Be sure to inform the person you nominate of your wishes. You can permit or refuse to permit donation of your organs for transplant. You can also permit or refuse to permit donation of your body for scientific or educational purposes. Some people wish to spend their last days at home rather than in a hospital. Some people wish to nominate one person to act as their attorney-in-fact for health care and another for their finance. You can express your wishes regarding these issues in these documents. Finally, you can express your wishes about funeral arrangements.
Responsibilities of the Investment Manager for Pension Boards, Custody Issues, and Rebalancing
A person is an “Investment Manager” with respect to a retirement system or pension fund under the Illinois Pension Code if such person:
1. is a fiduciary appointed by the board of trustees of a retirement system or pension fund in accordance with Section 1-109.1;
2. has the power to manage, acquire or dispose of any asset of the retirement system or pension fund;
3. is either –
a. registered as an Investment Advisor under the Investment Advisors Act of 1940;
b. a bank, as defined by that Act, or
c. an insurance company; and
4. has acknowledged in writing that he is a fiduciary with respect to the retirement system or pension fund.
5. the terms “Investment Manager” and “Investment Advisor” are used interchangeably.
The Investment Manager/Advisor/Broker with discretion over buying or selling securities for the fund may not be the custodian of the investment instruments.
Pension boards should review percentages quarterly for compliance with the Investment Policy. Funds with assets under $2.5 million are allowed 10% in separate accounts and/or mutual funds, which may not grow in excess of 10% provided that the contract has not been changed.
If market values do not exceed the allowable percentage then no rebalancing is required. Investment Policies of each fund should stipulate the percentage allowable in the various types of authorized investments.
Pension funds invested in separate accounts, mutual funds and/or individual stocks should calculate the market value of those funds to determine the percentage held vs. the allowable percentage under the law. Use the expertise of the Investment Manager to assist with this task. If the percentage exceeds the allowable amount, the fund must reduce the allowable percentage and document the reduction. The reduction as to which investments are sold is at the discretion of the pension board and applies only to the aggregate percentage. Documentation of the percentage calculations should be maintained at the pension fund.
Federal Judges – Types and Selection Process
With the retirement of Justice John Paul Stevens and President Obama declaring he would like to have Stevens’ replacement confirmed before the court’s new term begins in October, people are discussing Federal Judges. Two questions keep circulating: whether there are different types of Federal Judges and how do they get selected.
There are seven types of Federal Judges: (1) Supreme Court justices, (2) court of appeals, (3) district judges, (4) U.S. Court of International Trade, (5) bankruptcy judges, (6) magistrate judges, (7) U.S. Court of Federal Claims.
Supreme Court justices, court of appeals, district judges and the U.S. Court of International Trade are established by Article III of the Constitution. Names of nominees are recommended by senators or sometimes members of the House. The President then makes his nominations. The Senate Judiciary Committee conducts confirmation hearings for each nominee. Article III Judges are appointed for life and never get a pay cut to exercise what the Constitution calls the “judicial power of the United States.” The reasoning behind this is to guaranty Article III Judges will never fear making politically or socially unpopular decisions.
There are no official requirements to become an Article III Judge. However, throughout U.S. History all were private attorneys, state judges, other federal court judges or law professors prior to their Article III nomination and confirmation.
Bankruptcy, magistrate, and U.S. Court of Federal Claims Judges are not Judges under Article III of the Constitution. These judges are appointed for specific terms and are not protected from a guarantied no pay reduction. There is a statutory requirement for bankruptcy and magistrate judges to be lawyers.
Bankruptcy judges are appointed by the majority of the US court of appeals to exercise jurisdiction over bankruptcy matters. Bankruptcy judges are appointed for 14 year terms and handle almost all bankruptcy matters.
Magistrate judges are appointed by the majority vote of the active district judges of the court to exercise jurisdiction over matters delegated by the district judges and assigned by statute. Magistrate judges are appointed for 8 year terms and their duties vary from court to court.
U.S. Court of Federal Claims are appointed by the President. U.S. Court of Federal Claims is a special court that hears claims for money damages in excess of $10,000 against the United States. U.S. Court of Claims judges are appointed for 15 year terms.
You do not want to waive notice in Probate.
The option is always up to you. However, it’s a bad idea to waive notice in probate. Under the rules, heirs and legatees are permitted to consent to the appointment of a representative and then waive notice of hearings on the petition, rights to require formal proof of the Will and to contest the admission or denial of admission of the Will to probate, and notice of rights in independent administration.
Typically, probate matters involve family members who are also dealing with the loss of a loved one. To prevent family members from becoming long term litigants be open and upfront with one another. Knowledge is a powerful tool. Even in situations that involve family, keeping informed is important. It is a simple task to require notification of events. It is a difficult task to recreate the past to correct a wrong doing.
Often, representatives do not intend to make a mistake, but mistakes can happen anyway. By receiving notice of every event in probate, you have the ability to take an active role. Information such as listing a property with a real estate agent or letting it sit as a FSBO for a year is imperative for heirs and legatees to be aware of.
Representatives can not waive your notice rights for you and will not take issue with you wanting to be notified. Understanding that everyone deals with death differently does not change your need to ensure your loved ones intentions are honored. The best way for heir and legatees to honor their loved ones is to hold onto their rights and not waive notice.
Payment Bond Claims
The Illinois Bond Act applies to public construction projects. The 180 day notice is a condition precedent to the right to maintain an action under the Bond Act. That means that before you have the right to file an action you must give timely notice.
Any person having a claim for labor, material under the Bond Act will not have any such right of action unless he filed a verified notice of said claim with the officer, board, bureau or department awarding the contract, within 180 days after the last item or work or the furnishing of the last item of materials, and shall have furnished a copy of such verified notice to the contractor within 10 days of filing of the notice with the agency awarding the contract.
Compliance with the Bond Act’s six month post project completion limitations period is a jurisdictional requirement. Without having jurisdiction, the Court can not entertain your claim. The Act clearly states that no action shall be brought until the expiration of 120 days after the date of the last item of work or the furnishing of the last item of work or the furnishing of the lost item or materials, nor shall any action of any kind be brought later than 6 months after the acceptance by the State of political subdivision thereof of the building project or work.
General contract law is applied to bonded private construction projects. It is important as a subcontractor to beware of the contractual limitations to bring an action against a general contractors bond.
Short Sale Basics
In these tough economic times, many people consider getting involved in a short sale of real property. However, most do not understand what it takes to close short on a piece of property. The term “short sale” for real estate means that the sale proceeds are less than the balance of the mortgage or mortgages for that real estate.
It takes a lot of time and effort to accomplish a successful short sale. Cooperation and hard work is needed. The seller and lender are both in tough positions. The seller can no longer afford their home and can not pay the mortgage. The lender has no desire to take the home or go through costly foreclosure proceedings.
The seller has to start the ball rolling by finding the right department and person within their lender to assist in this process. It takes many phone calls and letters to get a person with authority from the lender. Also, do not make the mistake of trying to go through the lenders mortgage work out department if you really just need to get out of the property and mortgage.
The seller has to provide the lender with many documents before lenders even consider the option of a short sale. Some of these documents include: (1) preliminary net sheet, (2) hardship letter, (3) proof of income and assets, (4) copies of bank statements, (5) comparative market analysis, and (6) letter of authorization.
The seller should contact a real estate agent, accountant and attorney. Many agents will reduce their commission amount on a listing that needs to sell short. Accountants can explain and go over the tax ramifications (which vary for each individual). Attorneys can help negotiate with the lender and buyer, determine if the loan qualifies for a deficiency judgment, work within foreclosure proceeding, and close the transaction.
Be aware that the lender is not in a hurry to agree to a short sale. The lender will take as much time as it wants and will periodically ask for more information. Lenders will only agree to a short sale if it makes financial sense.
The buyer has to have a lot of patience, be willing to cooperate with the lender and, most importantly, have the money to purchase the real property.
Construction Claims – Secure Your Right To Get Paid
A. Perfecting a Lien Claim – Private Construction Projects.
• Contractors bringing a claim against lenders, purchasers and encumbrances must (1) record claim or bring suit within 4 months of the last day completed work, and (2) file suit within 2 years. Contractors bringing a claim against the owner must file suit within 2 years.
• Subcontractors bringing a claim against owner occupied single family residents must give notice of lien to the occupant of the resident within 60 days of first furnishing materials or labor. Subcontractors bringing a claim against owner, lender, purchaser and encumbrances must (1) give notice of lien within 90 days of the last day completed work, (2) record claim or bring suit within 4 months of the last day work completed, (3) if no notice is given, subcontractor has lien for amount shown on contractor’s sworn statement; and (4) file suit within 2 years.
• Demand for suit. Any party of interest can demand that the claimant file suit to enforce their lien within 30 days or the lien is forfeited.
• Private construction lien claims attach to the real property.
• Time Requirements are Jurisdictional; thus, if you miss a date, the courts have no authority to enforce your rights.
B. Perfecting a Lien Claim – Public Construction Projects
• There is no time period for providing Notice of Lien.
• Give written notice of lien to public entity.
• For State Project – must provide sworn statement of claim
• Upon receiving the Notice, the public entity must hold all monies or other form of payment due the general contractor for 90 days. If no suit is filed within 90 days the public entity can release the money. If suit is filed within the 90 days the public entity must hold the funds until the final adjudication of the suit or may deposit the funds with the clerk of the court where the suit was filed.
• If the public entity no longer has any contract funds at the time it receives the notice, then there is no recovery.
• Must file suit for accounting within 90 days of giving Notice of Lien. The public entity does not have to be a party to the lawsuit. The state of Illinois cannot be a defendant, but other public entities may.
• On State Projects, suit shall be commenced and a copy of the complaint must be delivered to the Director not less than fifteen days prior to the date when the appropriation from which the money is to be paid will lapse.
• A public lien is a claim against money, bonds, warrants, or other means of payment from the public body.
• Mechanics lien’s are not permitted against Federal Buildings.
C. The Miller Act governs Federal construction project.
• Every person who furnished labor or material has a right to sue under the Miller Act against a payment bond upon the expiration of 90 days after his last day of work.
• A sub-subcontractor must provide the general contractor written notice of its Miller Act claim within 90 days of his last day of work.
• The Miller Act provides that no suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied.
• The Miller Act’s requirement of bringing suit within the prescribed time is a condition precedent to the right to maintain the action.