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Services for Business
- Business Law
- Creditors' Rights and Bankruptcy Issues
- Turn Your Out-of-State Judgment into Money PDF
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Read Questions & Answers
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Services for Business
- Business Law
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A. There are several ways to operate a business including: sole proprietorship, partnership, limited partnership, limited liability company, and corporation. Each type of entity has its own advantages and disadvantages. They are taxed differently, require different IRS filings, require different amounts of work to maintain, have different restrictions regarding who can be owners, and provided different levels of protection for personal assets from your business' liabilities. A knowledgeable professional can help sort out which type of entity best fits your situation.
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A. Other than choosing the right business entity for you, it is important to plan for the future. Many issues should be addressed at the beginning such as: what happens if one of you wants to leave the business, what happens if one of you dies or becomes disabled and not able to work, will you be able to bring your children into the business? These and other issues should be resolved in writing at the outset of the business. It is always easier to resolve these types of issues when starting a business rather than dealing with them later.
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A. Certain types of contracts, such as contracts concerning the sale of real estate and contracts that will last longer than one year, must be in writing. However, verbal contracts are enforceable if they do not concern those areas where written contracts are required. The danger is that many times the parties to a verbal contract cannot agree what the terms of the verbal contract were when one party's expectations have not been met and this inevitably leads to problems. It is always best to put any agreement in writing. Again, it is almost always less expensive to negotiate terms at the beginning than try to resolve disputes later.
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A. You have several options. You can sell or give stock to your employee either with or without restrictions. You can give your employee stock options, the ability to purchase stock in your corporation at a set price for a period of time. The downside to giving stock or stock options is that you lose some control of the corporation. If you do not want to give stock your employee, you can give stock appreciation rights, the right to receive the appreciated value of stock over a certain period of time. Giving stock appreciation rights works best when there is a recognized market to determine the change in the stocks value. Finally, you can give your employee the right to receive bonuses based on your business's profitability. Each option has specific requirements and tax consequences so you should get the help of a professional when deciding which method you want to use.
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- Creditors' Rights and Bankruptcy Issues
- Collections
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A. If you've exhausted all other remedies in an effort to get paid, you can hire an attorney who specializes in collections to help you recover the amount that is due and owing to you. It is very possible the attorney may send a letter to the debtor asking for payment, and if that fails, the attorney may follow up with a lawsuit against the debtor.
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A. Yes. Small Claims Court is designed for non-lawyers. The forms are simple and easy to use. Most court clerks will assist in making sure the paperwork is done appropriately. If the defendant does not ask that the case be moved to the general civil docket which usually requires the involvement of attorneys, both parties can agree to have their case decided by the appropriate district judge in an informal manner.
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A. Yes. Attorneys may collect a debt on behalf of a client either on a contingency basis, or on an hourly basis, or possibly on a combination of both. If an agreement is reached to proceed on a contingency basis, the attorney usually receives a percentage of the amount that is collected. You would then only have to pay for out-of-pocket expenses and not for the attorney's time. An attorney may not be willing to proceed on a contingency basis, in which case an hourly fee contract can be entered into. You would then be paying your attorney on an hourly basis and still be responsible for the out-of-pocket costs. In some cases, an attorney may be willing to proceed with a combination contingency and hourly, charging a lower hourly rate and getting a smaller percentage of any amount collected. Whether an attorney will be willing to proceed on any case depends on the amounts involved, the quality of documentation, and other such issues.
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A. Yes. The most important thing you can do is provide all the information that you have regarding the debtor to your attorney. If you know where the debtor works, where the debtor banks, whether the debtor is married, whether the debtor has assets, where the debtor lives, etc., are all important items for the attorney to know. If you have this information, you should definitely provide it to the attorney. The odds of your collecting on a judgment go up depending on the amount of information given to the attorney.
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A. It may still be worthwhile pursuing a debtor if the amount owed makes it practical. Attorneys who specialize in collection have the ability to gather large amounts of information about most people using computers, the internet, investigators, etc. Therefore, even if you don't know much about the debtor, it may be possible to get that information using various resources available to a collection attorney.
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A. Yes. There are a number of things which can help increase the odds of collection. Getting a contract or some kind of promissory note signed is always beneficial. Getting a co-signer, or guarantor, on the note is also very important. If possible, getting the wife or husband to co-sign for the note if the debtor is married opens up many additional collection options. Also, collecting and maintaining information on the debtor is helpful. Keeping copies of checks, obtaining copies of tax returns, obtaining copies of mortgages, car titles, etc. are all important elements of making a future collection much more possible.
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A. The only way to get your attorneys fees paid is if you have a written contract with the debtor and the contract specifically provides that you are entitled to your actual reasonable attorneys fees if a lawsuit becomes necessary. If you do not have this in writing, the only attorneys fees you can collect are those provided under Michigan law, which are minimal.
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A. Some attorneys will send out a collection letter to try to encourage the debtor to pay the debt. If the debtor does not respond, or the attorney determines a letter was not warranted, a lawsuit is typically filed against the debtor. Once a lawsuit is filed, the collection attorney has to personally serve the debtor with the lawsuit. Some debtors can be hard to find. Other debtors specifically avoid the process servers who are trying to serve them with a lawsuit. Once a debtor is served, if the debtor does not take any action within the time allotted to him to file an answer, the collection attorney may be able to enter a default and default judgment against the debtors. If the debtor files a written answer with the court, it is necessary to go through a trial in order to get a judgment. This can take considerably longer and it depends on the individual court that is involved as to how soon trial dates can be obtained. Once a judgment is obtained, a collection attorney uses various methods in an effort to turn the judgment into dollars.
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A. Often, the best option if you are not able to collect the judgment immediately after obtaining the judgment is patience. A judgment in Michigan is valid for 10 years, and often you're better off being patient and hoping the debtor improves his financial condition over time and is able to pay the judgment sometime in the future.
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- Construction Law
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A. If your last labor and materials was more than 90 days ago, yes, you can no longer collect under the Michigan's Construction Lien Act. However, just because you have lost your construction lien does not mean you cannot collect. You will still be able to collect pursuant to your contract, but you will have lost the advantages and protections provided to you by the Construction Lien Act.
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A. Your rights to a Construction Lien Act may, or may not, have been compromised by your failure to timely file a Notice of Furnishing. However, it is unlikely that you will be able to determine at this point whether your rights have been compromised. It is, therefore, my general advice that parties in your situation immediately complete the Notice of Furnishing and the Construction Lien.
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- Employment Law
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A. Employment applications can be used to: dispel contractual presumptions and clarify at-will employment; reduce the employer's exposure when investigating past employment and other information; give the employer grounds for termination if false statements contained in the application are discovered.
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A. Employers may legally pose questions that test a candidate's motivation, maturity, willingness to accept instruction, interest in the job, ability to communicate and personality. The following are examples of the kinds of questions that may be asked: What are some of the responsibilities you had in previous jobs? What skills and traits do you have that suit the needs of our company? What attracted you about the position? What are some of your outside interests? How would you describe your relationship to those with whom you work? What are some of your short and long-term goals? Why do you want to change jobs? However, inquiries into an applicant's race, color, age, sex, religion and national origin are illegal under Title VII of The Civil Rights Act. The Michigan Department of Civil Rights has issued a publication, which illustrates many interview questions that are legal, as well as those found illegal. Follow the link to view this publication: www.michigan.gov/documents/pre-employment_inquery_guide
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A. Federal laws state that it is illegal to be denied employment or fired from a job as a result of current participation in a drug or alcohol treatment program as long as the enrollment does not interfere with the person's ability to do the job. However, it is important to point out that drug and alcohol tests of job applicants are neither encouraged nor prohibited by the Americans with Disabilities Act, and the results of such tests may be used as a basis for disciplinary action or employment decisions. In short, an employee or applicant who is currently engaging in illegal drug use is not protected under federal ADA law. Additionally, an alcoholic who is not in treatment and who cannot perform his/her job duties or whose employment presents a threat to the safety of others is not protected under the ADA.
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A. Under Michigan law, an 'at-will' employee can be fired for any reason or no reason at all. Even an arbitrary and capricious discharge is not actionable if the employee is terminable at-will. However, an at-will employee may have an action for wrongful discharge if the discharge was contrary to public policy. The three public policy exceptions to the at-will doctrine apply when: The employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty. In Michigan, there are at least four statutes that prohibit the discharge of employees who act in accordance with a statutory right or duty: The Elliot-Larsen Civil Rights Act The Michigan Occupational Safety and Health Act The Persons with Disabilities Civil Right Act The Whistleblowers' Protection Act The employee is discharged for the failure or refusal to violate the law in the course of employment. The employee is discharged for exercising a right conferred by a well-established legislative enactment. For example, a termination for being summoned for grand jury testimony violates the public policy expressed in the grand jury system.
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A. Companies often violate the law by not understanding the distinction between employee and independent contractor status. This distinction has become crucial due to increased IRS investigations. The IRS generally opposes independent status because companies who employ independents don't have to withhold income or employment taxes, resulting in many dollars of compensation that go unreported. No precise legal definition of an independent contractor exists. The most significant factors that courts look at when making this distinction are: The company's right of control over the worker Whether the company carries indemnity or liability insurance for the worker Whether the individual works exclusively for the company or is permitted to work for others at the same time This list is not meant to be all-inclusive, but rather, to help you determine whether your personnel fall into either the employee or independent category. For further guidance, please consult the IRS guidelines.
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A. Employee handbooks can be very valuable to an employer, if used appropriately. However, oftentimes the handbook is used against an employer, especially when the employer is not following its own guidelines. However, effective personnel relations and a successful plan for litigation avoidance begin with an employee manual. In addition to giving employees a clear description of their benefits, a proper manual sets the rules for on-the-job behavior (i.e., reporting absences, authorized use of telephones, handling complaints, etc.), discusses criteria used for evaluating job performance, and reduces legal suits relating to "guaranteed" job security, unfair discharge and other claims. In addition, it may boost employee morale. Despite these advantages, many companies do not use employee manuals; others fail to keep current with changing EEOC regulations and employment laws, and to incorporate such changes in their own publications. If staffing doesn't afford time to create a manual, this is one area where a company would be well advised to hire a lawyer to draft one. A few thousand dollars spent on a manual today can save you tens of thousands of dollars in a lawsuit tomorrow.
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A. Some handbooks are necessarily more thorough than others. However, at a minimum every handbook should have provisions addressing: Welcome / Introduction Terms of Employment Hours & Overtime Employee Benefits Rules of Conduct Disability Accommodation Policy Sexual Harassment Policy Termination Procedure Non-Discrimination Policy Employee Acknowledgement Amendment - Companies with written personnel policies should always reserve the right to alter or amend promises of benefits at any time, with or without notice, for maximum protection. Such a disclaimer should appear in bold, conspicuous language in all manuals and written policy statements.
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A. An anti-harassment policy and complaint procedure should contain, at a minimum, the following elements: A clear explanation of prohibited conduct; Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation; A clearly-described complaint process that provides accessible avenues of complaint (don't require a report to a supervisor where the supervisor may be a harasser - designate someone outside the chain of command); Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; A complaint process that provides a prompt, thorough, and impartial investigation; and Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Recent United States Supreme Court decisions make clear that employers are subject to vicarious liability for unlawful harassment by its supervisors. The standard of liability is premised on two principles: An employer is responsible for the acts of its supervisors Employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.
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A. The Wages & Fringe Benefits Act applies to all public and private employers in Michigan. It dictates how and when employers are to pay wages and fringe benefits to employees. It also prohibits certain employer actions with respect to wages and fringe benefits. Violations of the Wages & Fringe Benefits Act may be enforced in court or through the Wage & Hour Division of the Michigan Department of Consumer and Industry Services.
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A. This act applies to all Michigan employers that have four or more employees. It provides the employee with three rights with respect to his or her personnel records: The right to review the records upon a written request; The right to a copy of the records; The right to file a written response to the records if the employee disagrees with something in the file
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A. This act prohibits an employer from requiring prospective employee or current employees to take a polygraph examination. The act also prohibits an employer from threatening to require such an exam.
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A. Yes, so long as they are reasonable. If a covenant not to compete is unreasonable, a court may re-write the covenant to make it reasonable. In order to be enforceable, the covenant not to compete must be reasonable with respect to its duration, its geographic area, and the type of employment or line of business sought to be protected.
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- Municipal Law
- Real Estate
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A. It all depends what your goals are, what is the status of your negotiations, and what is the seller attempting to achieve. A letter of intent is intended as a non-binding summary of the directions of the parties. Truly, some people only comfortable if the negotiations are proceeding down a path to which they agree. To this extent, a letter of intent is helpful. It tends to enunciate clearly the position of the parties and where agreement is close at hand. But, because it is not binding, it does have very limited use. For instance, it might be used to express what the parties have agreed to verbally so that their positions might be presented to their attorneys for drafting of the final documents. But, at the same time, some would suggest that, rather than achieving any false security in a letter of intent, that the parties ought to immediately draft the buy/sell agreement and have the opposing party sign it so that there is, in fact, a binding agreement, even if it has significant contingencies. This approach would be especially appropriate if it is suspected that the seller is using the letter of intent as a delaying tactic, to get additional time before signing a buy/sell agreement so as to pursue offers from other interested parties. In short, a letter of intent can be a useful instrument, but it also can work to your disadvantage. Is there any reason that you cannot put together a buy/sell agreement at this point and submit it to the seller?
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A. Buyer has the option of forcing a seller to close on the property. To pursue that right, however, the buyer would have to file suit. The legal theory is called 'specific performance'. Because real estate is considered to be one of a kind (i.e., there is only one building like you are looking at in that exact location), the law does provide that the buyer can force the seller to sell and close on the transaction.
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A. There is not just one appropriate answer to your question, and the answer will not only depend upon your objectives, but will consider other factors, including: your income tax situation, your estate planning situation, your age, the type of businesses location in the property, etc. There are many options available including the following: a radio corporation, a C corporation, individual names, partnerships, limited partnerships, limited liability companies, etc.
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A. The short answer to this question is 'yes'. I suspect the real question you have is whether you should proceed with the purchase once you have been notified of environmental issues. That I cannot answer without a review of the problems as well as your objectives. We have worked with many parties who have concluded purchase of contaminated property. Following the appropriate procedures may mean that the buyer does not have to be concerned about the costs of remediating the environmental problems. (The property will still be contaminated.) Each property and each situation presents a unique situation, which does not suggest a uniform answer. Besides your own concerns over the environmental issues, if the property is contaminated, it may present difficulties for your lender and therefore impair your ability to obtain financing to accomplish the purchase. In short, you should be concerned, and you need to address the issues. However, it does not have to be a defining factor in whether you will or will not purchase the property.
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A. I would not recommend purchasing the property prior to resolution of the issue, unless you are happy owning the building you indicate and not using it. Your situation really has two distinct areas of concern. The first is acquiring an interest in the property. The second is working with municipal officials to determine whether you can use the property as intended. You likely do not wish to pursue the second and invest significant funds if the first is not going to work out. In pursuing the first objective, there are a number of alternatives. The first alternative would be to prepare a purchase agreement with an appropriate contingency allowing you to walk away if the local official do not give approval to use of the building for your intended purposes. A second way of accomplishing this might be to obtain an option on the property. During the option period, you could then pursue approval of you intended use. The second issue is usually resolved either through petitioning the municipality for a change in zoning (to a zoning designation which would permit your intended use), or a zoning variance. The solution might also have a component of politics involved. The ultimate recommended course of action will depend upon the municipality involved, the historical action of the appeal boards, the deviation of intended use provided for in the zoning ordinances, historical uses, as well as other factors. When there is an option, your realtor has suggested using one. A real estate option is a written agreement between a potential purchaser and the owner of the property. It gives the potential purchaser the right, but not the obligation, to purchase the piece of property from the seller. There may be commissions involved or it may be entirely unilateral. There often is an option price that goes to the seller because the seller is giving up his rights to market the property to other parties during the option period. Options are frequently utilized when buyers are attempting to a
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A. Maybe. If the tenants have written leases, you must honor those leases. Obviously, if the tenants are violating the leases, you may be able to evict them if they do not correct their violations in accordance with the terms of the lease. Assuming that the leases are on a month-to-month basis, you would be able to evict them after you give them at least one month's written notice.
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A. I would suggest that you obtain legal counsel immediately to discuss your situation. Your purchase agreement may detail who is responsible for any losses during the purchase agreement period. If that risk of loss is on you, it is unlikely that you can avoid purchasing the property because of this casualty loss. If the agreement is silent, Michigan statutes provide that the risk of loss is on the seller until closing. However, before making your mind up on the direction you wish to proceed, you may wish to consider all of the alternatives. What happens if the seller repairs all damages prior to the closing date? It is possible that, if you were anticipating remodeling the building, the seller would work with you to turn over insurance proceeds. Depending on the condition of the building and your intentions, this may be an opportunity as opposed to a setback. Early intervention on your part may work to your advantage.
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A. Unfortunately, the term 'triple-net lease' is not as universally defined as one would like. However, the most generally accepted use of the term is that a tenant pays for all expenses associated with a property, except for debt servicing (principal amortization and interest). Thus the tenant would pay taxes, operational expenses, repairs, utilities, etc. Occasionally, parties will see the term 'triple-net lease' utilized, but the landlord remains responsible for some structural or major components (i.e., rough, building, heating equipment, or similar items).
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A. I can give a reasonable answer in this form to the first question but not the second. The details are far too complicated for me to explain all of them to you in the space provided here. However, a 1031 exchange refers to a section of the Internal Revenue Code (Section 1031) in which the Internal Revenue Service gives tax deferral status to certain types of exchanges. In essence, if a party, instead of selling a property and buying a new property, decides to exchange those properties, the IRS will not tax the transaction, but will allow tax bases which you had in the first property to be transferred to the second party. You will not avoid tax, but will defer the tax on the transaction until you sell the replacement property. Cash received in addition to the exchange, will be taxed at the time of the exchange. Originally, you would have had to locate the party and arrange the exchange. However, this area has become so sophisticated that there are now parties who facilitate these types of exchanges - - allowing you to complete the sale of your property while attempting to find a replacement property. In utilizing one of these facilitating parties, you have a certain number of months to identify and close on the replacement property. This allows tremendous flexibility. However, one rule remains paramount: 'The exchange properties' must be similar (i.e., a commercial office building for a commercial office building, an industrial warehouse for an industrial warehouse, etc.).
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- Business Law
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Services for Individuals and Families
- Civil Litigation
- Criminal Law
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A. You should consult with an attorney. Many people believe that they can talk themselves out of any situation or feel they have nothing to worry about because they have committed no crime. The police or investigating authority will not share your perception. You may very well say something to the investigator that you may not realize incriminates you. It is always a wise move to involve counsel when the police or another investigating authority seek to interview you regarding allegations that you may have done something wrong.
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A. Consult with an attorney as soon as possible. Many times, particularly in cases where alcohol and driving are involved, valuable evidence may be destroyed in a short time period, including the blood alcohol evidence, video tapes, etc. Waiting to hire an attorney can only harm your ability to defend yourself.
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A. Absolutely. You are entitled to consult with counsel or have an attorney act on your behalf at essentially every step of the process (with few exceptions, such as participation in a grand jury process). Both the Fifth and Sixth Amendments of the constitution guarantee these rights. The Sixth Amendment provides you with a right to counsel during judicial proceedings. The Fifth Amendment provides you with a right to counsel during a custodial interrogation. While you do not have the right to delay an arraignment to have counsel present, any time the police intend to interview you regarding allegations that you committed a crime, or a substantive part of the criminal process is occurring in court, you have a right to have an attorney advise you or be present.
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A. You will typically be arraigned in the appropriate court within 7 to 14 days of the date that you are charged. The arraignment is the court proceeding where the Judge will ask whether you plead guilty or not guilty. If you have not yet retained counsel, you should plead not guilty in order to get an attorney involved on your behalf. In the case of misdemeanors, the next step in the process will most likely be a pretrial conference where your attorney will have an opportunity to discuss the charges and negotiate with the prosecuting attorney. In the case of a felony, you will either have a pretrial conference or a preliminary examination where the court will require the prosecutor to present evidence to show that there is probable cause to believe that a crime has been committed and that you committed the crime. Eventually, there may be additional evidentiary hearings and pretrial conferences, but, unless there is a guilty plea as the result of a plea bargain, your case will eventually go to trial.
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A. Any time you are charged with a crime that involves a sentence that potentially includes jail or prison time, you have the right to have a trial with a jury of your peers. Until and unless you knowingly and voluntarily waive your right to a jury, the court cannot take this right from you.
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A. Felonies (including 'high misdemeanors') include any crime that has a sentence of one year or more of incarceration. Misdemeanors are typically handled by the district courts, while felonies are typically processed through the circuit court system.
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A. Being convicted of drunk driving can be devastating. Not only are there court ordered fines and costs, in many cases, in excess of $1,000, but also probation supervision fees that will be hundreds of dollars, driver responsibility fees of up to $1,000 per year for two years, and community service. More importantly, a drunk driving conviction now results in a mandatory driver's license suspension of no less than six months. Society and the courts take drunk driving charges very seriously. So should you by retaining an attorney.
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A. Absolutely. In many cases, while you believe you may have committed some crime, you may be overcharged or the prosecutor may be charging you with additional crimes that do not apply. Hiring an experienced criminal defense attorney will ensure that your rights are protected.
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- Elder Law
- Employment Law / Civil Rights
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A. Typically, employment discrimination occurs when an employee is terminated, demoted, not promoted or not hired because of that person's religion, race, color, national origin, age, sex, height, weight, or marital status.
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A. Sexual harassment includes verbal conduct, including derogatory comments or slurs; physical conduct, including assault, impeding or blocking movement, or physical interference with normal work or movement; visual harassment, including derogatory posters, cartoons, photos, or drawings; sexual favors, including unwanted sexual advances where sexual favors are asked for in exchange for an employment benefit.
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A. In your employment discrimination claim, you may be entitled to recover the following: Lost wages Lost employment benefits Lost pension benefits Emotional distress damages Damages for embarrassment or humiliation Attorney fees
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A. If you believe you have been the victim of employment discrimination, harassment, or retaliatory termination or demotion, please contact our office to make an appointment to speak with one of our employment attorneys. We handle cases against all employers, including governmental entities.
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A. Under Michigan law, it is unlawful for an employer to retaliate against an employee because he or she has exercised a legal right. This is true even if the worker is an 'at will' employee. For example, it is wrongful for an employer to retaliate against an employee who reports or threatens to report, an employer's unlawful activity to appropriate authorities. It is also wrong for an employer to retaliate against an employee who makes safety complaints or protests unlawful discrimination at the work place, or files a charge of unlawful discrimination, or an EEOC complaint.
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- Estate Planning / Probate
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A. If you do not have a will or a trust, any assets in your name alone will be distributed pursuant to state law. Who actually receives your assets will depend on whether or not you are married, whether or not you have children, whether or not you have children who are not the children of your current spouse as well as other factors. Rarely does state law accurately reflect a person's desires concerning the distribution of his or her assets. Your assets will need to be probated to complete the distribution.
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A. In its simplest terms, probate is how we change the name on a person's assets after he or she dies. When a person dies, there is no one who can sign for him or her; consequently, no one can transfer the deceased's assets. The probate judge has the authority to transfer assets on behalf of a deceased person and the probate process is how the transfer is accomplished. Probating a deceased's estate takes at least five to six month to complete.
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A. No, although this is a common misperception. Your will is really your instructions to the probate judge, and everyone else, as to who you want to manage the probate process and how you want your assets distributed.
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A. While putting a child's or children's names on assets will avoid probate, there are several drawbacks, including: any joint owner of a bank account has the right to withdraw funds from that bank account, any creditor of an owner of a joint bank account can take the money in the joint account regardless of who put the money into the account, and real estate owned jointly cannot be sold unless all of the owners, and the wives of male owners, consent.
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A. A trust is a contract. The person who sets up the trust is called the Grantor or Settlor, the person who manages the trust is called the Trustee, and the people who benefit from the trust are called Beneficiaries. Typically, the same person is the Grantor, Trustee and Beneficiary. Usually trusts can be changed by the Grantor at any time as long as the Grantor is capable of making financial decisions. A trust does have its advantages, including: avoiding the time and expense of probate; providing for minor or disabled children; delaying the distribution of assets or basing the distribution on specific conditions; providing for the management of assets if you become disabled; minimizing estate taxes.
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A. The cost of an estate plan depends on the complexity of your goals and objectives. The cost of a simple will with a General Durable Power of Attorney and Patient Advocate Designation is relatively modest. An estate plan designed to minimize federal estate taxes will be more.
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A. Someone on behalf of the children must ask the probate court to appoint a guardian and conservator for minor children if both parents die. A guardian is responsible for the care of your child and a conservator is responsible for your child's assets. You can tell the probate judge who you would like to serve as the guardian and conservator of your minor children in your will or another written document signed by the parents and witnessed by at least two witnesses. If your trust provides for the management of your children's assets, a conservator is not normally necessary.
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A. If you have no estate plan, someone must ask the probate court to appoint a guardian and conservator for you. The process of appointing a guardian and/or conservator can be time consuming, costly and stressful for your family. Fortunately, signing a General Durable Power of Attorney and a Patient Advocate Designation can eliminate the need for a guardian and conservator. However, these documents must be signed before the incapacity begins. With a General Durable Power of Attorney you give someone the right to handle your financial matters. If you have a trust, your trustee will manage the assets in the trust and your power of attorney will handle matters that are not related to the trust such as signing personal tax returns or obtaining governmental benefits. If you do not have a trust, your power of attorney will handle all of your financial matters. With a Patient Advocate Designation you appoint someone to make your medical and healthcare decisions if you cannot make those decisions yourself. A patient Advocate Designation can also include your desires concerning life sustaining medical treatment or life support.
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- Family Law
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A. A person must reside in the State of Michigan for at least 180 days and live in the county in which they wish to file for at least 10 days before filing.
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A. Your spouse, the Defendant, must be served with the relevant documents that were filed with the court. This can be done by having someone deliver the paperwork to the spouse and have them sign an Acknowledgment that they have received it sending the paperwork to them by First Class Mail, Return Receipt and having them sign the green return receipt card by having a court officer or sheriff personally serve them with the paperwork and fill out of Proof of Service which is them sent to the court.
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A. If there are no minor children, there is a minimum waiting period of 60 days from the date the Complaint was filed. If there are minor children, there is a minimum waiting period of 180 days after the date the Complaint was filed. These are minimum waiting periods. If a case is contested and the assigned judge is involved in either settling the case or trying the case, a divorce can take a year or longer.
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A. Michigan law provides that a judge should award joint legal custody to both parents. Joint legal custody means both parents have the right to be involved in decisions concerning their children's education, medical treatment, religious training, and similar decisions. The judge also has the power to award physical custody to one or both parents. A child will typically spend most of his/her time with a parent who has physical custody. A parent who does not have primary physical custody of the children is generally granted visitation, or parenting time.
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A. Michigan has what is known as the Uniform Child Custody Act. The Act details various criteria which the court must consider when determining where the children should be placed. These criteria are collectively known as the best interests of the minor children.
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A. Michigan has child support guidelines which are used by the court to determine child support. Guidelines are now required or mandatory in the State of Michigan. The guidelines consider each parent's income, the number of children involved, the amount of time each parent spends with the children, and other factors when determining child support.
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A. Yes. The child support guidelines are still used to determine how much parents are obligated to pay for the support of their children. This is true because parents may have different incomes, and despite having shared custody, they may spend different amounts of time with the children. While it is possible that the guidelines would suggest no support be paid, that would be unusual.
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A. The judge is allowed to review the amount of child support any time there has been a significant change in circumstances. This means if one parent or the other loses their job, gets a significant pay increase, or there is some other change which requires the court to modify support, the judge is at liberty to do so. Either party may request the judge review support any time there has been a significant change in circumstance, but usually not more than one every couple of years.
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A. It is possible to ask the Friend of the Court in the county in which the Judgment of Divorce has been entered to review the income levels of the party and make a recommendation. There are forms you can obtain through the Friend of the Court to accomplish this. It may still be necessary to appear before a judge or referee to actually get an order changing support.
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A. The general answer is that child support is paid until a child reaches 18 or graduates from high school, whichever occurs last.
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A. Child support is not taxable. It is not considered income to the person who receives it, nor is it deductible by the person who is paying it.
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A. The general rule in Michigan is that the judge will try to make an equitable distribution of the assets of the parties. Michigan law provides that property division must be fair and equitable under the circumstances. As a general rule, most judges try to divide the assets equally between the parties.
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A. Pensions are considered marital assets which the court must consider when they divide the property of the parties. Judges divide pensions by assigning the present-day value of the pension to one party or the other, or pensions are divided by way of court orders called Qualified Domestic Relations Orders (QDRO), or Eligible Domestic Relations Orders (EDRO).
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A. QDROs and EDROs are court orders which direct the pension administrators to divide a pension in a specified manner which awards part of the pension to the spouse that is not a participant or does not own the pension. These orders can direct a specific dollar amount be awarded, or a percentage of the pension be segregated and awarded.
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A. An inheritance is generally not considered to be a marital asset. However, if an inheritance is commingled, or placed in the spouse's name, or the spouse contributed to the acquisition, improvement, or accumulation of the inheritance, the court may then consider it to be a marital asset and divide it between the parties.
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A. Judges look at a number of criteria to determine whether spousal support should be paid. While there are a number of factors to be looked at, judges usually look at the age of the parties, the income of the parties, the educational levels of the parties, and the length of the marriage. If possible, Judges will try to maintain both parties in a lifestyle that is as close as possible to the one that they were enjoying before the divorce took place. Judges can award spousal support on a weekly or monthly basis for a specific period of time or indefinitely.
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- Personal Injury
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A. The right to recover damages resulting from the careless or negligent conduct of another person, which negligence or careless conduct caused a physical or emotional injury to the claimant.
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A. Assault and battery Boating accidents Closed head injuries Construction accidents Dangerous machines or products Defective roads and sidewalks Dog bites Drowning Drunk driving accidents, including claims against the bar or restaurant that served the alcohol Electrocution or electrical accidents Jet ski accidents Motorcycle accidents Motor vehicle accidents Paralysis Pedestrian/auto accidents Pedestrian/motorcycle accidents Product liability Slip and fall Spinal cord injury Traumatic brain injuries Trip and fall accidents Truck accidents Unsafe products Unsafe machines Wrongful death
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A. We typically take these claims on a contingency basis. In other words, if we do not recover anything on your behalf, we do not get paid. And, obviously, we have every incentive to obtain as significant a recovery as possible on your behalf. The fee will ultimately be a percentage of whatever amount we recover on your behalf.
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A. Reimbursement for medical bills Lost wages Out-of-pocket costs Reimbursement for attendant care provided by friends or relatives Home modifications Damages for the loss of enjoyment of life Pain and suffering Damages for humiliation or embarrassment Damages for emotional distress
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A. In the vast majority of personal injury claims, there is an insurance company responsible to pay the damages or settlement. In many cases, a business may be uninsured or self-insured and is an appropriate target to recover damages.
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A. The only way to know for sure whether you have a viable claim or not is to consult with an experienced attorney who handles personal injury claims.
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A. We will provide you with a free consultation to determine whether you have a viable claim.
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- Real Estate
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A. Each and every issue that you believe is important should be covered in the initial buy/sell agreement between seller and buyer. It is this agreement which establishes the rights and obligations of the parties. Unfortunately, many people mistakenly perceive that the buy/sell agreement only defines the price and, after agreement on price, the parties negotiate other items. All items of any importance should be included in the agreement, including: price, size of the property, any personal property included, whether or not a survey is included, whether title insurance is included, the treatment of real estate taxes, whether there are any contingencies, including a mortgage, or any inspections or testing. Michigan also requires that the seller make certain disclosures as to the property being sold, and the buyer must be given the appropriate materials as to the existence of lead paint.
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A. The allocation of the various closing costs will be determined by the terms of the buy/sell agreement. The costs which typically need to be addressed include: title insurance premiums, title insurance company closing charges, recording fees, transfer taxes, real estate taxes, assessments, inspection fees, survey costs. In addition, where the transaction is financed with a new mortgage, the buyer typically incurs a number of fees mandated by the mortgage company which buyer has chosen. Those fees can vary significantly in their amount.
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A. The only way to protect oneself is to have a well-drafted buy/sell agreement signed by all the necessary parties. Assuming the buy/sell agreement is drafted appropriately, and the homeowner still wishes to renege on the agreement, the only way to force the issue is to file a suit and involve the courts to force the seller to honor their obligations.
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A. Inspections are not required to make a purchase and sale agreement legally binding. Whether you wish to have inspections or not is generally a reflection of your comfort with evaluating the various components of the house you are buying: roof, structure, plumbing, electrical, etc. Once you have purchased the home, any problems will be yours to repair. If you are sufficiently experienced in these areas or are willing to assume the risk, you do not need to get inspections. If you do not feel comfortable with making this analysis, you are likely better off spending the money to have your purchase evaluated by a competent professional before proceeding with the purchase.
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A. This is one area of real estate law where your intuitive answer is probably correct. In a quitclaim deed, the seller simply deeds to the buyer whatever interest the seller has, no matter how imperfect the title. The buyer receives only whatever title the seller had, and inherits any problems that the seller had. If the seller did not have an ownership interest, the buyer receives nothing. A warranty deed includes the seller's warranty that he has title and will defend the title in case there are legal claims. If there are title problems, a buyer will have recourse against the seller if the buyer receives a warranty deed. While there may be instances of which your attorney can advise you that may justify accepting a quit claim deed for closing, as a general rule, buyers will want a warranty deed instead of a quit claim deed.
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A. A seller will want to cover all of the issues that a buyer wants covered in a buy/sell agreement, including price, size of the property, any personal property included, whether or not a survey is included, whether title insurance is included, the treatment of real estate taxes, whether there are any contingencies, including a mortgage, or any inspections or testing. In addition, the seller will want some time limits placed on resolving any contingencies, because the seller will not want to remove the home from the market for a lengthy period of time, unless the seller is assured that the contingencies are removed and the sale will proceed.
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A. No. Real estate agents do provide a valuable service, however. They have the ability to market. They have a network of realtors with whom they cooperatively work, and they are generally trained to 'close the sale' (the sometimes difficult task of getting people to stop talking and instead making a written commitment to either buy or sell). If you believe that you can adequately handle those challenges, an experienced real estate attorney can guide you easily through the drafting and reviewing of the buy/sell agreement and making the necessary arrangements to complete the sale of the property.
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A. Michigan requires the seller to give a disclosure to the buyer. Beyond that, no disclosures are necessary except that if any statements are made, they must be truthful and accurate. While a buyer may decide to go through with a purchase without a disclosure, until a disclosure is appropriately given to the buyer, the seller cannot enforce the buy/sell agreement, even if it is in writing.
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A. While a buyer can sometimes force a seller to sell a home (in a legal action called 'Specific Performance'), a seller has no equal remedy. A seller is limited to obtaining damages from a reluctant buyer. The seller must attempt to re-sell the property. Once that has occurred, if the seller obtains less for the property than from the original buyer, and the difference is significant enough to justify the attorney fees, the seller can sue the buyer for the difference in price. If the buy/sell agreement is written appropriately, the seller should also be able to keep any earnest money that the buyer deposited. However, if there were legitimate contingencies in the buy/sell agreement, the buyer may be justified in not completing the sale, in which case the earnest money would likely have to be returned. This is the primary reason why a seller would like to have the earnest money be a significant amount. The higher the amount, the more unlikely it is that the buyer will risk withdrawing from the purchase agreement.
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A. By all means. If you are unable to refinance it, you still own the home and are entitled to sell it and pay off the existing mortgage. Even after the foreclosure, there is a redemption period in which you are entitled to stay in possession of the property and attempt to redeem it from the foreclosure sale. You can sell the property even during this time. Obviously, the sale price would have to be sufficient to pay off the mortgage, but even at this late date, you would be entitled to retain any surplus or equity.
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A. Unfortunately, this could be expensive for you. Depending on your relationship with your builder, the builder may not be quite as willing to sharpen the pencils for changes as he was when he was motivated to get the original contract. Nonetheless, the only way to proceed is to discuss the potential changes with your builder at the earliest possible time and solicit a cost quotation for those changes. Only then can you make an educated decision as to whether or not you wish to proceed with the added expense. I encourage builders and homeowners alike to place their changes into a written agreement. Written agreements serve to bring things into crystal clear understanding.
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A. No, not if you have adequately described the situation to me. Are you sure that someplace in the body of the documents you signed, you did not agree to make the payments requested? The issue should be easily resolvable. Your builder, if asked nicely, should be willing to point out the specific place in the contract where you agreed to those charge. If he will not (or cannot), there may not be justification for the charges and you are justified in not making payment until the appropriate explanation is made.
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A. Under the appropriate circumstances, arbitration or facilitated mediation can be an attractive alternative. Your attorney can assist you with these processes as well as assist you in evaluating whether the processes will be the appropriate alternative for you, based upon potential results as well as costs. One critical factor to be remembered is that all parties must be willing to use the other alternative to litigation. Litigation is the only alternative, which can be unilaterally mandated.
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