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2021 State Law Updates to Mechanic’s Lien & Payment Bond Claims

Several states have enacted new legislative changes over the last couple of years to private mechanic’s lien claims and public bond claims-and it’s vital to your business that you stay up-to-date on these changes.

The attorneys at WFJ have compiled a summary of some of the recent changes that apply to commercial or government construction projects, and updated opinion letters for each individual state. Keep reading for a summary of these legislative changes.

Missouri

Statutory amendments passed in 2019 expanded the coverage for bond claims on public projects.  Similar to other states, the claimant is entitled to assert a bond claim if the claimant has a contract with the general contractor or with a subcontractor of the general contractor.  As a result of these amendments, if the contract was entered into after August 28, 2019, a claimant is now entitled to assert a bond claim if the claimant has a contract with a sub-subcontractor or a material supplier.

However, the 2019 amendments added a notice requirement for material suppliers.  If the claimant is a material supplier, and has a contract with a sub-subcontractor or another material supplier, the claimant must serve a final bond claim notice on the general contractor within 90 days of the claimant’s last date of providing material.  The claimant is not required to serve a final bond claim notice on any party if the claimant is providing material and labor, regardless if their contract is with the general contractor, subcontractor, or sub-subcontractor.

Tennessee

Tennessee passed an amendment in 2020 to their lien statute which changed the requirements for serving a preliminary notice on a private commercial project.  As a result, if a contract for a private project is entered on or after July 1, 2020, and the claimant has a contract direct with the owner, the claimant is not required to serve a “Notice to Owner.”  Previously, if the contract was entered before July 1, 2020, and the claimant had a contract directly with the owner, the claimant was required to serve the “Notice to Owner” on the owner before the first date the claimant furnished labor or material.

Arkansas

The State of Arkansas passed amendments in April 2021, which made significant changes to its public and private bond claim statutes. The amendments affect the rules for serving a final bond claim, the deadline for filing a bond, and claims for rental equipment on public projects.

Starting in April 2021, if the claimant’s contract is with the subcontractor, the claimant must serve the final bond notice on the general contractor and surety within 90 days of the claimant’s last date.  This new rule applies to both private and public projects.  Previously, a claimant was not required to serve any notice to assert a claim against the payment bond for either private or public bond claims.

Beginning in April 2021, the lawsuit deadline for payment bonds, for both private and public projects, is now one (1) year from: (1) the date of final payment under the construction contract, or (2) the date the general contractor stops work on the construction project, whichever date is earlier. We recommend, however, that claimants follow the conservative lawsuit deadline of one (1) year after the “last date” the claimant furnished labor or material because the new statutory requirements may be difficult to track.

Finally, starting in April 2021, rental equipment is now covered under the payment bond for a public project. The prior Arkansas statutes did not clarify whether a claimant could assert a claim against the payment bond on a public project for rental equipment.

Georgia

The State of Georgia has adopted new “Lien and Bond Waiver” forms which go into effect on January 2, 2021. In addition to the change in the waiver forms, the new law clarifies that waivers signed after January 1, 2021, do not waive contract rights but only lien and bond rights after the prescribed period of withdrawal. Before the passage of the new law, the statute was not clear whether all contract rights and remedies were waived when a prospective claimant waived their lien or bond rights.

Texas

Texas recently passed a bill which made significant changes to the rules and procedures for mechanic’s lien and bond claims.  The changes apply to all new construction contracts entered on or after January 1, 2022.  The prior mechanic’s lien and bond laws will continue to apply for prime contracts executed prior to January 1, 2022.

New preliminary notice requirements will go into effect on January 1, 2022.  If the claimant has a contract with a subcontractor, the claimant is no longer required to serve a “2nd month notice” on the general contractor.  The claimant must still serve the “3rd month notice”, as previously required, if the claimant’s contract is with the general contractor or subcontractor. Additionally, the form required for the “3rd month notice” has been modified.

The new Texas bill will change the lien foreclosure deadline.  Starting January 1, 2022, the lien foreclosure deadline will be one (1) year from the last day a claimant may file the lien (the previous deadline was two (2) years).  However, the lien foreclosure deadline can be extended for an additional year under a written, recorded agreement with the owner.

The notice requirements will change for “specially manufactured materials” when the new bill goes into effect on January 1, 2022.  Under the new law, the claimant will no longer be required to serve any additional notices for “specially manufactured materials.” Instead, the claimant’s lien claim for “specially manufactured materials” will now be covered by the “3rd month notice.”

The preliminary notice form for retainage will contain new requirements starting on January 1, 2022.  The modified form will require the claimant to provide a description of the project and to list the total retainage unpaid.

Starting January 1, 2022, if a payment bond has been recorded on a private project, claimants will be required to serve the preliminary notices to the original contractor and the surety.  Previously, if a payment bond was recorded on a private project, claimants were required to serve the preliminary notices to only the original contractor.

The deadline to file a mechanic’s lien claim for retainage will be extended starting on January 1, 2022, and it will give claimants almost two additional months to file a retainage claim.  The new retainage deadline will now be the 15th day of the third month that the project is completed, terminated, or abandoned.  The previous deadline required claimants to file a retainage claim within 30 days after the date the project was completed, terminated, or abandoned (this deadline still applies to contracts entered before January 1, 2022).

Good news for claimants is that beginning on January 1, 2022, an owner will no longer be able to shorten the deadline for filing a lien.  Prior to the new law, the owner could file an affidavit of completion, or notify subcontractors that the general contractor has been terminated or abandoned the project, which shortened the deadline for filing the mechanic’s lien to 30 days.  A claimant, under the new law, must file a lien no later than the 15th day of the 4th calendar month after the month when the project is completed, settled, or abandoned.

Texas further amended their lien statutes by removing the requirement that statutory lien waiver and release forms be notarized.  Starting on January 1, 2022, statutory lien waiver and release forms will no longer have to be notarized.

 

You can request individual opinion letters by contacting us at info@wfjlawfirm.com.

5 New MN State Laws We Think You Should Know About

Unless you spend your day refreshing the Minnesota State Legislation website, you may have missed some of the new laws that have been passed so far in 2021. Don’t worry, it’s our job to pay attention- and we are happy to report back to you!

 

  1. Insurers Cannot Discriminate Against Those with Prescriptions that Interfere with Opiates

Prescription for opiate antagonist: When determining whether to issue, renew, cancel, or modify a policy of life insurance, an insurer may not make an underwriting determination based solely on information revealing that a proposed insured has a prescription for an opiate antagonist.

 

2.  Statutory Deadlines Suspended During Peacetime Emergency

An act relating to civil actions; suspending the expiring of statutory deadlines imposed upon judicial proceedings during a peacetime emergency; Deadlines governing proceedings in district and appellate courts suspended during peacetime emergency. Deadlines imposed by statues governing proceedings in the district and appellate courts, including any statute of limitations or other time periods prescribed by the statute shall not expire from the beginning of the peacetime emergency declared on March 13, 2020 in governor’s executive order 20-01 through April 15, 2021. Nothing in this statute prevents a court from holding a hearing, requiring and appearance, or issuing an order during the peacetime emergency if the judge determines that individual circumstances relevant to public safety, personal safety, or other emergency matters require action in a specific case. This section is effective the day following final enactment and applies to all deadlines that had not expired as of March 13, 2020 and that would have expired during the period starting March 13, 2020 and ending April 15, 2021.

 

3. Department of Corrections to Provide Resources to Those Recently Released

An act relating to corrections; requiring that certain information, assistance, services and medications be provided to inmates upon release from prison; providing identification cards for released inmates, requiring a homelessness mitigation plan and annual reporting on information related to homelessness.

“Beginning July 1, the Department of corrections will have to provide health and other information to people leaving the prison system. The idea is to help ease their re-entry into the community. People leaving prison must also receive a month’s supply of their medication and a prescription for two months of refills. The department must help them apply for MinnesotaCare or Medical assistance if the person wants it. The department must also provide a range of information such whether the person can vote and whether they owe court-ordered payments or fines.

 

4. Frontline Workers Who Contract Covid-19 Able to Claim Worker’s Compensation Through 2021

First responders, health care workers and child care providers who serve those groups will be able to claim worker’s compensation if they contract COVID-19 through 2021 thanks to an extension of the policy passed in April. It first took effect las year and established the presumption that the people on the front lines who developed a COVID infection were exposed to it in the workplace unless their employer could prove others.

 

5. New Law Sets Energy-Saving Goals

This law, three years in the making, “will strengthen Minnesota’s energy conservation programs, reduce greenhouse as emissions and create jobs across the state, “according to a May press release from the governor’s office. The law sets energy-saving goals and requires documentation of progress toward those goals. It took effect when Walz signed it May 25.

 

Want to see all the laws passed so far this year? Visit Minnesota State Legislation’s website to read the full list of statutes.

 

Have questions? Our attorneys are always available to work with you on your legal needs.

Chapter 11 Bankruptcy: Small Business Reorganization Act – A Welcome Relief to Small Business Owners.

Small businesses are a pillar of the American economy. In 2005, Congress enacted Bankruptcy Abuse Prevention and Consumer Protection Act to allow small business owners easier options for reorganization.

After almost 15 years, Congress realized small business debtors were the least likely to have a successful reorganization while still having a high number of small business failures.

On August 23, 2019, Congress passed the Small Business Reorganization Act (SBRA). The SBRA is a Chapter 11 reorganization bankruptcy under the new subchapter, Subchapter V.

The SBRA has new requirements as to which individuals or entities will qualify under Subchapter V, as well as new procedures. These features were added to allow small business to avoid some of the burdensome costs and time typically associated with a Chapter 11 bankruptcy.

The highlights of the SBRA are as follows:

  1. Debt limit has a baseline of total debt at $2,725,625;
  2. Elimination of the absolute-priority rule for creditors;
  3. Appointment of a trustee, similar to those appointed in Chapter 12 and Chapter 13 of the Bankruptcy Code; and
  4. Less strenuous disclosure statements and more debtor-friendly rules governing the plan requirements.

The complexity of filing bankruptcy for small businesses owners and small business debtors may be lessened by these new changes, the option to file under Subchapter V will keep many businesses operating.

The changes brought forth by the SBRA are exciting and a welcoming change to the law. There are many factors for small business owners to consider before filing of a reorganization bankruptcy. As always, it is best to consult with your LegalShield provider firm for a more detailed analysis.

Posted on April 14, 2020

The Importance of Living Will in Today’s New Circumstances

What is a Living Will?
A Living Will is an important health care document in estate planning as it provides clear and unambiguous directions of a person’s healthcare wishes at a time when they cannot speak for themselves. It avoids uncertainty at a time when emotions are naturally high and where family members may have conflicting wishes. It is not a Testamentary Will, as it does not dispose of property or make bequests under State law. The Living Will is both a statement of a person’s wishes and a guide for family and healthcare providers.

Details of a Living Will
The person for whom the Living Will is prepared is called the declarant. This document provides the declarant with the right to direct future medical services at a time when the declarant is unable to speak with or consult with their doctor. The document becomes effective only in an extreme end-of-life situation. In the Living Will the declarant may direct the attending physician not to administer life-sustaining treatment including CPR or technologically provided nutrition and hydration. If such treatment has already started the Living Will may provide that such treatment shall be withdrawn. The document may include a directive of do not resuscitate.

Both the declarant’s attending physician and a second physician must certify that the patient is terminally ill, permanently unconscious, and will not feel pain or discomfort from the withholding or withdrawal of such treatment. Even under this diagnosis it is the agent named by the declarant in the living will, termed the attorney in fact, who ensures that the patient’s wishes are carried out by the healthcare provider and attending physician. It is not healthcare professional who decides to withdraw or withhold treatment. State law typically requires that the attorney in fact be notified of the declarant’s condition. Thus it is important to keep this information updated. Without the Living Will the healthcare provider for the a patient in the extreme terminal condition cannot withdraw or withhold treatment at the request of the family including a spouse or adult child, even if the patient previously expressed this wish verbally.

The form and content of the Living Will must comply with the laws of the jurisdiction where the declarant resides. This often requires two adult witnesses or a notary to witness the signature of the declarant. The declarant must be legally competent to sign and, once signed, the Living Will should be given to both the declarant’s doctor as well as the attorney-in-fact including an alternate if so named. These standards vary by State to State. An attorney should be consulted to assure compliance with the rules of your jurisdiction.

The attorney-in-fact should be someone who knows what the declarant’s wishes, be willing to see that those wishes are carried out, and typically must be 18 years of age or older. This document may be amended or revoked by the declarant. Some states ask an applicant during the driver’s license application process if they have a Living Will. The applicant can request that their driver’s licenses indicate that such a document has been executed or signed.

Why Have a Living Will Now When You Are in Good Health?
Clients will often ask why a Living Will is necessary when they are in good health and do not have a family history of any serious illnesses or diseases. It is a document that, hopefully, is never needed but in the event that than an unexpected catastrophic medical situation occurs it can alleviate uncertainty, disagreements among loved ones and provide the patient’s wishes are followed. We have all heard about situations where family members cannot agree on the wishes of the patient, leading to legal action as the healthcare provider cannot and will not withhold or withdraw treatment if there is no Living Will.

Many people are concerned that it is the healthcare provider who makes the decision to withdraw or withhold treatment but this is not the case. The healthcare providers make the diagnosis and present it to the attorney-in-fact. It is the attorney-in-fact who instructs the healthcare providers, on behalf of the declarant, to withhold withdraw treatment

Some years ago a case in Florida made national news concerning a young married woman who had been in a coma for several years and whose doctors determined that she would not recover and would remain in a permanent vegetative state. Her husband attempted to have the doctors remove her from the respirator but her parents intervened and after protracted and expensive litigation the court determined that the respirator could be removed. She passed away 13 days later. A Living Will is a very personal and important document that can avoid years of uncertainty and conflict as to what a person’s medical wishes might be. It allows the individual to dictate what their treatment and healthcare would be in this very extreme medical situation.

If you have any questions or concerns about this paperwork please consult your attorney. In this time of widespread disease it is a crucial document that can easily be drafted to comply with State regulations, protect and ensure that an individual’s healthcare wishes are carried out, and provide family and friends with clear and unambiguous directions end-of-life situation.

Posted April 2020

COVID-19 and its Affect on Domestic Violence Victims

As many Americans hunker down in their homes obeying Stay at Home Orders, Domestic Violence is on the rise. Victims who are normally able to escape their abuser for eight hours during the average workday can no longer count on that break.

As more and more people lose their jobs everyday, financial stress, fear, and isolation can drastically change a household. In fact, staying home can be deadly to some due to these climate changes.

Domestic Violence comes in many shapes and forms and is not always physical. Domestic Violence does not discriminate and people of all races, genders, and sexual orientations can fall victim.

While it seems like the world is on lockdown due to COVID-19 restrictions, there are still plenty of resources to help you through whatever you may be experiencing.

What are those resources?

Call 9-1-1
While it may seem obvious, calling your local police should always be your first step when you feel unsafe. However, If you do not feel safe calling the police due to lack of privacy, there are other options.

Get out of the House
While Stay at Home orders require you to not leave your home, except for essential services, this does not apply to domestic violence victims who are in imminent harm if they continue to stay home. If you feel unsafe, it is important to leave immediately to stay with a friend, family, or co-worker. If you have nowhere to go, there are various safe shelter options. Crisis Centers, like Minnesota’s DayOne and Wisconsin’s Bridge to Hope, can help you find a safe place to stay.

Call a Crisis Center
Crisis hotlines like Minnesota’s DayOne and Wisconsin’s Bridge to Hope can provide help 24/7/365. There are also national hotlines available and hotlines that tailor to each and every relationship.

Helplines are helpful in both lending an ear and helping you find resources. If you need a place to stay, they can help you find a safe shelter. If you need someone to talk to, they can help you find a counselor. Whatever your needs are, these hotline operators will speak to you in a confidential and respectful manner, while helping you out in your time of need.

DayOne Crisis Hotline
866-223-1111
Minnesota hotline for those experiencing domestic violence

Bridge to Hope
800-924-9918
Wisconsin hotline for those experiencing domestic violence

The National Domestic Violence Hotline
800-799-7233

Casa de Esperanza (Espanol)
651-772-1611

National Deaf Domestic Violence Hotline
Videophone: 855-812-1001
deafhelp@thehotline.org

ThinkSelf-Deaf Advocacy Services
Videophone: 651-829-9089
Text Hotline: 621-399-9995

OutFront Minnesota
612-822-0127
LGBTQ+ Anti-Violence Crisis Line

Room to Be Safe
414-856-5428

LoveIsRespect.org
866-331-9474
For Teens Experiencing Dating Violence

StrongHearts Native Helpline
844-762-8483
Native American Domestic Violence Helpline

File an Order for Protection
While courts are closed for all non-essential business, courts in every state are still hearing cases where someone has filed an Order for Protection. An Order for Protection filed with the court may save your life if you are being abused.

Domestic Abuse is defined as occurring to a family or household member if committed by a family or household member. A household member as:

• Spouse or former spouse;
• Parents and children;
• Persons related by blood;
• Persons who are currently live together or who have lived together in the past;
• Persons who have a child in common, regardless of whether they have been married or  have lived together at any time;
• A man or woman if the woman is pregnant and the man is the alleged to be father, regardless of whether they have been married or have lived together at any time or;
• Persons involved in a significant romantic or sexual relationship.

Call our experienced attorneys to get further information on how and where to file an Order for Protection in your state.

The main thing to remember when you are suffering from Domestic Abuse, no matter where it is occuring, is that it is not your fault and there is help available. There are much better options than to stay at home and risk your life.

If you have specific questions or wish to speak to an attorney regarding your case or any of the options above, please reach out to one of our experienced attorneys.

Posted April 10, 2020

COVID-19 and Consumer Bankruptcy

The current coronavirus pandemic has had an unprecedented effect on all of us personally, professionally and financially. Businesses have closed and employees have been laid off. Unemployment compensation claims are at a record high. Individuals are under extraordinary stress with concerns about the health and safety of their family and loved ones.

With businesses shutting down either by government order or through lack of customers many find themselves with little or no income to pay their debts. The federal government has promised direct payment to citizens who qualify, which cannot come too soon. The federal government has also suspended foreclosures and evictions for federally backed mortgage loans. Some state and local courts have suspended or continued evictions during this crisis.

As income dries up and savings dwindle many people’s thoughts turn to bankruptcy. More often than not their thinking is along the lines of “I never thought I would have to do this.”

Bankruptcy Basics

The federal bankruptcy laws provide people who have suffered financial setbacks with the opportunity to start over. Filing for bankruptcy is the legal process to eliminate, reduce or reorganize one’s debts. The most common types of bankruptcy for individuals or married couples are the Chapter 7 bankruptcy and the Chapter 13 bankruptcy.

Chapter 7 Bankruptcy

The Chapter 7 bankruptcy is the one that most people think of when they think of bankruptcy. Chapter 7 bankruptcy can discharge many types of debt providing someone with a “fresh start.” However, Chapter 7 is also known as the liquidation bankruptcy meaning that you may have to give up some of your property. The law does provide exemptions for your property, which, in most cases, are quite generous. With careful review and planning with a bankruptcy attorney, most people are able to keep all of their property.

Chapter 13 Bankruptcy

The Chapter 13 Bankruptcy allows someone to propose a payment plan to pay at least a portion of their debts in monthly payments over a 3 to 5 year period. In some cases, the Chapter 13 has advantages over the Chapter 7. For instance, a Chapter 13 can provide an opportunity to save one’s home from foreclosure by allowing them to cure delinquent mortgage payments over time. The Chapter 13 does not always require that all creditors be paid in full. At the end of the chapter 13 payment plan, any remaining debt is discharged. Essentially, one pays what one can afford to pay after their other necessary living expenses have been paid, over a 3 to 5 year period. At the end of that time, if one’s creditors have not been paid in full the remaining balance is erased.

The Process

The first step in the process is to get an attorney. One can represent one’s self in a bankruptcy, however, it is not recommended. The bankruptcy rules are complex and bankruptcy courts generally do not make allowances for individuals representing themselves.

Once you have found an attorney, he or she is going to request information and documentation regarding your financial situation. You are likely to be asked to provide copies of tax returns, pay stubs, car loan paperwork and mortgage loan paperwork. You will need to identify your creditors and the debts that you owe. You will need to list the property that you own. You will need to provide a breakdown of your monthly income and your monthly living expenses. This is the information and documentation that the attorney needs in order to prepare the petition and schedules that get filed with the bankruptcy court.

There is a credit counseling requirement and there is at least one mandatory hearing called the Meeting of Creditors. At present, most courts are either delaying these hearings or holding them by phone or video conference.

When to File

The decision to file bankruptcy is never an easy one. The best advice is that one should consult with a bankruptcy attorney. In that way, one can determine whether bankruptcy is the best option. If so, the next question would be what type of bankruptcy would be best. After that, the question becomes when is the right time to file.

In some instances, the decision may be to hold off on filing. Current events are changing the economic and legal landscape daily. As of the writing of this article, federal stimulus payments are on the way which may serve to tide individuals over. Some foreclosures have been suspended. Some courts have stayed or delayed eviction and other civil proceedings. Some creditors are voluntarily providing forbearances or deferments of payments. It may be possible for some to weather the storm. Again these are matters best discussed with one’s attorney.

After Bankruptcy

A Chapter 13 bankruptcy filing will stay on your credit record for seven years. On the other hand, a Chapter 7 filing will stay there for 10 years. During that time, you may have difficulty borrowing money, or borrowing affordably. One’s credit does improve over time.
Although bankruptcy is a good way to deal with unsecured debts, there are certain debts it will not wipe out. These include such debts as most back taxes, child support and alimony payments and, in many cases, student loans.

Self-Employed? Yes, You Can Get Unemployment Compensation Benefits

The Coronavirus, Aid, Relief, and Economic Security (CARES) Act makes unemployment compensation benefits available for persons not traditionally eligible (self-employed, independent contractors, those with limited work history, and others) who are unable to work as a direct result of the coronavirus public health emergency.

Eligibility Expanded

Specifically, the CARES Act provides that a “covered individual” includes anyone who self-certifies that they are able and available to work but is unemployed or partially unemployed due to any of the following:

  • Has been diagnosed with COVID-19 or is experiencing symptoms and seeking a medical diagnosis.
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or household member who has been diagnosed with COVID-19;
  • The individual is the primary caregiver for a child or other person in the household who is unable to attend school or another facility as a direct result of COVID-19;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19;
  • The individual is unable to work because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns;
  • The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19;
  • The individual has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19;
  • The individual has to quit their job as a direct result of COVID-19; or
  • The individual’s place of employment is closed as a direct result of COVID-19.

he U.S. Secretary of Labor may establish additional eligibility criteria as well. Importantly, the law not only applies to employees, but also to those who are self-employed (independent contractors). Individuals are not eligible for benefits if they have the ability to telework with pay or are receiving paid sick leave or other paid leave benefits.

Impacts One-Third of Workforce
This portion of the CARES Act is welcome news to millions of Americans. The number of nontraditional workers has nearly tripled in the last few years. Nearly one-third of the workforce is comprised of self-employed professionals, sales persons, small business owners, sole proprietors and others whose primary income is from independent, customer or client-based work.

What Should You Do?
Apply online with our state’s unemployment compensation office. It’s the fastest and easiest way to get started. Be patient – most states are experiencing very high volumes of applications. If you are unable to reach them via the phone, look for an email address to submit your questions.

If you’re not certain whether you are eligible, don’t hesitate to contact your LegalShield Provider Law Firm. They are available to help you every day.

Posted on April 8, 2020

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