Concerns for Small Business: Insurance Can Be a Savior

  Concerns for Small Business: Insurance Can Be a Savior Today’s post focuses more on a practical business reality as opposed to a purely legal issue.  Because we are celebrating Small Business Week, we will keep this blog post short as we know that all small business owners such as ourselves are always pressed for time and struggle to get everything accomplished while maintaining some sort of an otherwise normal life. Over the past few years the insurance issue has been discussed at length in the media and among small business owners as the health insurance requirements have continued to increase and put administrative demands and financial pressures on businesses of all size.  Aside from health insurance, worker compensation, and general liability insurance, there are a number of other insurance products that are available to small businesses that can help provide some protection to the financial strength of the business as well as help to minimize the disruptions caused by unforeseen circumstances that every business will face. Most small businesses do not have the financial capital or reserves to deal with unforeseen issues that arise that necessitate having to retain attorneys, perhaps paying for accidents or even failed contractual relationships.  Dealing with these issues requires the small business to dip into its operations accounts and thereby keeps that money from being used for more useful purposes such as growing the business or compensating the owners and employees for work previously performed.  As we all know attorneys’ fees can also cause a significant disruption in a business’s financial planning, as most small businesses do not set aside a legal budget...

This is Why You Incorporate

This is Why You Incorporate Individuals looking to start a business often question whether it is worth the hassle and expense of actually setting up a corporation and drawing up the necessary papers to establish that corporation particularly when the business is “just me.”  Traditionally the reason for going to that trouble and expense focuses on making sure that the individual, and therefore that individual’s personal assets, cannot be seized by creditors of the business in order to satisfy debts owed by that company.  If the company has not been set up and run as a separate legal entity, then the law looks at the company’s assets and the individual’s assets as being one and the same, and a creditor of the company can look to the person’s individual assets to pay any debt owed to that creditor. Nevertheless, people still question whether it is truly worth it to incorporate.  We generally counsel people that it is well worth spending a little money to help protect personal assets; almost like an insurance policy that you buy and hope that you never have to use.   At the same time, after the corporation has been established, it must not co-mingle its assets with those of the individual owners.  In other words, it is important to keep things in separate “buckets” so that there can be no question what assets belong to the company and what is the property of the individuals.  The more “blurred lines” there are, the more chances there are that a company’s creditors will look to the personal assets of the owners. A recent Indiana case has reinforced the...

Successor Liability and Piercing the Corporate Veil

Successor Liability and Piercing the Corporate Veil: Protect Your Assets We have had several meetings recently with new clients who are either purchasing the assets of an existing business, or are beginning a new company.    When we are in these meetings, we will often stress the importance of separation between the business assets and those assets that belong to the individual owners of the business.   In addition, when a business is purchasing the assets of a former business, it is important to structure the transaction such that the business buying the assets can limit or eliminate any obligations for debts owed by the selling business. These meetings have brought to mind a previous post concerning the same issues, including the factors that a court will examine when determining whether or not to hold an individual liable for a corporation’s debts period. While the Ziese case discussed in that previous post was more focused on “successor liability”, another important decision from the Indiana Court of Appeals around that same time held that in addition to the elements discussed in the Ziese case concerning whether or not a court should consider “piercing the corporate veil,” (and thereby hold the individual shareholders liable for the debts of the corporation), a plaintiff seeking to do so must also show a causal connection between the fraud or injustice alleged by the party seeking to pierce the corporate veil and the harm that that party complains of.   In other words, it is not enough to prove that the defendant corporation did not follow corporate formalities or otherwise misused the corporate form.   Rather, the plaintiff must...

Due Diligence

Due Diligence How Much Effort is Required to Find the Person You are Suing? In what should have been an otherwise uneventful mortgage foreclosure, the Indiana Court of Appeals recently made clear to parties in lawsuits that they must take some reasonable efforts to notify all necessary parties of a lawsuit before they will be entitled to a judgment.  In Hair v. Deutsche Bank National Trust Company, a bank filed a foreclosure action, and needed to name another lien holder in order to complete the foreclosure, clear title to the real estate, and obtain a judgment.  There was no question that the bank’s mortgage lien was the first lien on the property, but Hair held a “junior” lien on the property.  After the bank was unable to serve a summons on Hair, it attempted to serve him through “publication”, which is a technique allowed under Indiana law.  However, a party may only rely upon service by publication after providing evidence that a diligent search was made and that the party cannot be found, has concealed his whereabouts, or has left the State. The Court found that the bank had not made a diligent effort to ascertain Hair’s whereabouts, and held that “mere gestures are not enough” and the “means employed must be such as one desirous of actually informing the party might reasonably adopt to accomplish it.” Because the Court found that the bank had not exercised that due diligence, and that had the bank performed even a bit of Internet research Hair could have easily been located, the Court granted Hair’s motion to set aside the judgment.  The...

Indiana Courts Enforce the Intent of the Parties

  A bedrock principle of Indiana law is that the intent of the parties controls the contract. We are constantly advising our clients of this principle, and that is why it is so important that a contract clearly express the true intent of the parties, so that anyone who later reads that contract can understand without question what both parties meant when they agreed to the contract. The Indiana Court of Appeals has again reaffirmed this principle and repeated its long-standing policy of enforcing business contracts when the parties’ intent is clear. In the case, which involved lien priorities, subordination agreements, crop financing and bankruptcy issues, there were 3 different lenders who had loaned money to a farmer.  At one point the lender who had the senior lien (“Lender #1), and therefore was entitled to be paid first from the proceeds of the farmer’s assets, entered into a partial subordination agreement with the lender which was “third in line” in terms of its lien position (“Lender #3).   It was clear from the subordination agreement that the reason for Lender #1 and Lender #3 to enter into the agreement was to induce Lender #3 to loan additional money to the farmer to plant crops.   Lender #3 then loaned additional money to the farmer, who ultimately filed bankruptcy.  The question then was which Lender was entitled to proceeds from those crops. After analyzing case law concerning subordination agreements from other States, and parsing through a number of different arguments made by Lender #2 (who was trying to claim some portion of the crop proceeds even though it had not loaned any...
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