Foreclosure Update

Last Updated on Sunday, 27 August 2023 03:23 Written by Chris Griswold Tuesday, 14 August 2012 06:11

This month I want to give everyone an update on what’s happening on the foreclosure front (both residential and commercial). From speaking with bankers, business people and others, this appears to be something that’s newsworthy for everyone. See more below (and don’t forget to click on my Facebook, LinkedIn, or YouTube links below to also see my short video on this material).

Foreclosure Update #2

Let me give you the background of the current legal/social environment surrounding foreclosures (in chronological order):

1. The national, residential mortgage foreclosure/”robo-signing” conundrum evoked concern in many after 2008.
2. This concern precipitated Federal and other State investigations into the dealings of lenders (mostly the practices of larger, institutional lenders who attempted to BOTH foreclose AND work out delinquent loans with the same residential borrowers – a case of the left hand not knowing what the right hand was doing).
3. These investigations prompted our State Attorney General to investigate and prosecute foreclosure fraud and to, ultimately, set up a victim’s fund for Oklahoma residents who were/are found to be victims of unsavory foreclosure practices.
4. Moreover, our Oklahoma Supreme Court has, since just January of this year, issued umpteen, cookie cutter decisions regarding those things necessary for a lender to have standing to bring a foreclosure action on any property (they can all be summed up with the need for lenders to “follow the Note” – as I said in my April newsletter).
   
5. The above has understandably caused many local lenders (both residential and commercial) to undertake greater due diligence before foreclosing upon any delinquent loan.
6. Likewise, the foregoing has naturally caused our title insurance community to exercise greater care in examining the foreclosure case file before issuing title insurance policies on properties that have finished the foreclosure process.

Watch for future developments….
What My Clients Are Saying

“Chris Griswold, P.C. has been an invaluable part of my real estate management team. His knowledge of contracts and commercial real estate law has been priceless. Without question, his candidness and attention to contractual details has kept us on track and has been key in preventing potential pitfalls and financial losses. He has been the key man, instrumental in navigating us through the commercial real estate market.”
Dr. Bo Sofola / Urologist / Ardmore, Oklahoma

Jury Trials v. Non-Jury Trials

Last Updated on Sunday, 27 August 2023 03:23 Written by Chris Griswold Thursday, 7 June 2012 05:47

At some point in your career, no matter who you are or what you do, you’ll have to sign some form of contract. When you do, look at the fine print. Does it mention the parties agree to waive their rights to a jury trial? If so, what does this waiver mean and what does it do? See more below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Jury Trials v. Non-Jury Trials

Usually around the last couple of pages of any contract (or at the very end of a contract), a “Waiver of Trial by Jury” clause will appear. You may have even already seen one of these. If so, upon seeing it, you possibly scratched your head and asked yourself “…I wonder what that means and whether it’s even important to me?” Well, it depends.

What does the waiver clause mean?  The clause itself technically means that if the contract you sign (with a jury waiver clause in it) is ever submitted to a court to determine or resolve a certain issue or controversy that has arisen between the parties, a judge, not a jury, will decide the case. Well, what does a judge do and what does a jury do? A jury decides issues of fact and a judge decides issues of law. Accordingly, if you sign a contract with a jury waiver clause, the judge will sit and decide issues of both fact and law thus negating the need to have a jury sit and hear the case.

What does the waiver clause really do in the real world?

On the surface, the waiver is intended to keep a jury’s nose out of complex matters that are, ostensibly, beyond the grasp and scope of people who don’t ordinarily deal with more complex business/legal issues. When you put it that way, it just makes sense, right? However, under the surface and in reality, by and large, the waiver is usually inserted into the contract by a larger, more sophisticated party to a contract for the sole purpose of preventing the smaller, less sophisticated party from gaining any “favor” from a jury.

In other words, and for example, a larger, more sophisticated party to the contract will insert the jury waiver clause so that, on the day of trial, the smaller, less sophisticated “mom and pop” party stands before a hardened and unemotional judge without the benefit of having a certain degree of “sympathy” from the jury. After all, when compared to your average judge, the jury is usually comprised of a body of less sophisticated people who would, if left to their own device, more likely decide the case in favor of the party with whom they can more identify with under the rationale that such “mom and pop” party got into a deal they didn’t fully understand, or, in the alternative, was taken advantage of by such larger, more sophisticated party (something disadvantageous to the larger, more sophisticated party). So, in very general terms, when contracting, you need to understand which party to the contract you are in determining whether or not a jury waiver clause is desirable for you.

What My Clients Are Saying

“I was referred to Chris from a friend of mine who has used him for years. I have 23 offices nationwide and tons of legal items that I don’t have time to deal with myself (nor would I trust just any attorney). What a blessing to find Chris…. Here is someone I know will get it done right, day or night. Chris’ good legal services free me up to run the day to day operations of my business with the peace of mind that the legal details are covered; all at an honest, fair price. Thanks Chris!”
James Gray / President & CEO / Full Circle Financial Group / Oklahoma City, Oklahoma

Things To Consider After Selling A Business

Last Updated on Sunday, 27 August 2023 03:23 Written by Chris Griswold Tuesday, 15 May 2012 07:19

I’ve recently moved to a new location. Please note my new address and phone information.

We all read a lot about what should be considered before/during the purchase/sale of a business. However, we don’t find much about what should be done after the deal closes, particularly by a seller. This month, we’ll talk about just that (you may be surprised at what you find). See more below (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Things To Consider After Selling A Business

First, ask yourself this question: “Did I sell my entire business and its receivables, assets, etc…, including the entity itself, or, in the alternative, did I just sell the receivables, assets, etc… of my business, exclusive of the entity itself?” It makes a big difference. If you sold the entire business, including the entity itself, you’re generally “off the hook” as the buyer has assumed the entire business and business entity, along with all of the debts/liabilities of the business. However, if you merely sold the receivables, assets, etc… of the business – but still retain ownership of the business entity itself, keep reading.

Second, ask yourself this question: “Did I owner-finance the purchase or did the buyer obtain its own purchase money financing?” If the buyer obtained its own purchase money financing and the contract does not provide for, among other things, any ongoing indemnities or covenants on the part of seller to be performed (not very common, but it happens), the seller should, upon closing, immediately dissolve its business entity’s articles of formation with the Secretary of State – otherwise, the entity could, by virtue of its continuing legal existence, still be subject to ongoing claims/liabilities from the general public. Alternatively, if you either owner-financed any percentage of the deal (where you could still potentially “foreclose” on buyer and get the business entity back) or have any ongoing indemnities or covenants to perform pursuant to the contract, keep reading.

If you’re still reading, your business entity’s legal existence remains necessary – whether to perform contractual obligations under the contract or to stand ready to “foreclose” on buyer. Accordingly, in the meantime, you need to continue your business entity’s general liability coverage (although you can, in order to save money after closing, drop your exposure amounts) until the last of the following occur: 1) the expiration of your contractual obligations (remember: contractual liability is an exclusion from any general liability policy thus requiring you to obtain an exception to such exclusion), 2) the date upon which buyer pays off the entire purchase price in full, or 3) the expiration date of such general liability policy (note: most GL policies are occurrence policies which cover the “occurrence” if it occurred during the policy term in contrast to professional liability and employer’s practices liability policies which are “claims made” policies). When the last of the foregoing occur, it’s time to dissolve your entity’s articles of formation (to prevent any further liabilities from arising).

Practically speaking, all this means you, as seller, don’t want, if at all possible, any of your ongoing contractual obligations or the term of the owner-finance period to extend beyond your coverage period – otherwise, you’ll be funding any claims/liabilities/demands which relate to your business entity out of your own pocket (unless your business entity still has money in the bank). If you want to learn more about the right insurance coverage, contact Chris Moxley at Professional Insurors, (405) 507-2750 – [email protected].

What My Clients Are Saying

“Chris has worked on several projects for both me and my clients over the last several years including building acquisitions, preparation of new business documents and lease transactions. I have found that he is very dependable on the turnaround of document preparation and the pricing he has given me is more than fair for the excellent work he performs. Chris’ extensive knowledge in real estate and business transactions has been a valuable asset to me as a small business owner.”
Renee Reneau / Owner / Reneau Properties, LLC / Edmond, Oklahoma