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A “Fierce Urgency.”​ Reflections on Community Development/Affordable Housing.

January 18, 2017 Leave a comment

“We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there “is” such a thing as being too late. This is no time for apathy or complacency. This is a time for vigorous and positive action.” – Martin Luther King Jr.

Yesterday, I took a picture of this quote from Dr. King, on the overhead of the Grand Rapids Urban League’s 17th Annual Corporate Breakfast in honor of Dr. Martinimg_1373 Luther King Jr.

In light of Dr. King’s quote, Co-Executive Director of LINC UP Darel Ross II spoke eloquently and boldly on the topic of Housing and Community Development.`

Grand Rapids has an Affordable Housing Crisis.

This Fall the Grand Rapids Chamber of Commerce hosted an Issue Summit on the topic of the Affordable Housing Crisis in Grand Rapids.

The Summit brought speakers representing many community stakeholders, including representatives from 616 DevelopmentGrand Rapids Urban League,Rockford ConstructionICCFMSHDA, and many local non-profits, including Mel Trotter MinistriesHQHeartside Ministries, on this lack of affordable housing, what is as Mayor Bliss emphasized, admittedly, “a complex issue”.

I have previously offered my own perspective, both as a lawyer representing real estate developers/investors, and as Board Chairman at Mel Trotter Ministries.

All people are valuable – made in the image of God.

There are people who are hurting in our local community.

Dr. King’s quote is applicable to us, today.

There is a “fierce urgency for now.”

What Mel Trotter Ministries is doing.

In 2016 Mel Trotter Ministries helped 216 families and individuals find permanent housing.

There is still much work to be done.

There are still a significant number of hurting families who need housing in Grand Rapids, alone.

It requires action on our part.

The easy route is apathy and complacence.

Take action.

I invite anyone reading this to join me for lunch sometime and learn what we at Mel Trotter Ministries, in collaboration with so many others, are doing to end homelessness.

e-mail: Jeshua@dwlawpc.com

 

Twitter: @JeshuaTLauka

Business Law Update: Key Terms to Consider in Business Contracts.

January 13, 2017 Leave a comment

If you’ve followed my posts for any amount of time, you probably aren’t surprised that I  like reading and writing about the latest Michigan court cases.

Particularly if they are relevant to business or real estate. I always find there are some lessons to be learned.

As another aside – I also like to include photos I took of downtown Grand Rapids, Michigan – overloimg_1360oking Rosa Parks Circle. This one, from today, shows the Zamboni smoothing out the ice for skaters looking to enjoy some weekend ice skating.

The latest case on my mind:

Summit Diamond Bridge Lenders, LLC v Philip R. Seaver Title Company, Inc.

This dispute really has to do with:

Forum Selection Clauses in a Contract.

Backing up a step, why do we prepare written contracts for business transactions?

Contracts are about risk allocation.

In any business transaction, business owners need to  have set in stone terms that answer one question:

who bears what risk?

A Forum Selection Clause would include language indicating that no matter where a dispute about the contract occurred, the contract will be interpreted under (in our case) Michigan law, and the parties agree that any dispute shall only be resolved in _______ County (Typically,  Kent County, Michigan, for my clients.) The parties then would agree to submit to the jurisdiction of said Courts.

Therefore, if your contract contains a forum selection clause, and, for instance, you are owed money by a company in Florida, you would not need to retain a Florida attorney for initiating a lawsuit in Florida. Just initiate the lawsuit in good ole’ Grand Rapids.

So as a general principle, if your business operates in commerce in other states or countries, it is wise to have such a clause.

 

However, the Summit Diamond Bridge Lenders case tells us that although generally such clause is enforceable, it isn’t always the case.

FACTS:

This case involved an escrow agreement with a  forum selection clause that “provides that California law governs any dispute arising from or related to the escrow agreement. The parties also designated the state of California in the agreement’s forum-selection clause.”

Plaintiff brought suit in Michigan alleging defendant, title company, breached its fiduciary duty as escrow agent of the loan funds by dispersing the funds without an approved letter of credit. Id. at page 2.

Defendant filed a motion to dismiss – arguing that Plaintiff sued in the wrong state. California was the proper forum for the dispute under the plain language of the escrow agreement.

The trial Court agreed. It dismissed the case.

The trial court held that California was the proper forum based upon the plain language of the forum selection clause.

The Court of Appeals reversed.

The Court of Appeals noted on page 3 of its decision that “In Michigan, public policy favors the enforcement of such clauses and, absent certain exceptions” citing Michigan Statute, MCL 600.745(3)(a)-(e).

Those excepts are:

(a) The court is required by statute to entertain the action.

(b) The plaintiff cannot secure effective relief in the other state for reasons other than delay in bringing the action.

(c) The other state would be a substantially less convenient place for the trial of the action than this state.

(d) The agreement as to the place of the action is obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means.

(e) It would for some other reason be unfair or unreasonable to enforce the agreement.” Id. at pg 5, citing MCL 600745(3).

The Court looked to California Law to determine whether or not the forum selection clause applied. California had a statute that ” precluded from bringing suit against a defendant who is a foreign corporation unless …(2) the agreement relates to a transaction involving at least $1,000,00.” Id. at page 4.

Because the agreement does not relate to a transaction involving at least $1,000,000, because defendant only agreed to hold in escrow $700,000 of plaintiff’s funds.

Essentially, the court of appeals held that since California would not entertain the lawsuit – because it did not meet the monetary threshold – the parties couldn’t obtain effective relief in California – satisfying the exception under subsection b.

 

Important Lesson:

1. Understand Your Contract Before Signing. 

Contracts are about risk allocation. In a business relationship you need to decide what risk you are willing to bear, and what risk you will allocate away. I am sure in this case Summit did not foresee a dispute arising, and therefore was willing to bear the risk in the event of a dispute to litigate in California in an inconvenient forum. They were fortunate that an exception applied and allowed them to maintain their suit in Michigan.

2. Understand  Your Contract After Signing.

Your business contract will dictate what your rights and duties are.  Here, Summit had the perceived contractual duty to pursue its dispute in California. However, its attempt to avoid abiding by the contract worked out – but it was costly. It was initially dismissed. It took an appeals court to find that a narrow exception applied.

Questions? Comments?

e-mail: Jeshua@dwlawpc.com

www.dwlawpc.com

Twitter: @JeshuaTLauka

 

 

 

 

Real Estate Law Update: Recently Enacted Michigan Legislation Abolishes Dower Right.

January 10, 2017 Leave a comment

 

A few days ago Governor Snyder signed into law 21 Bills, including Senate Bills 588 and 560 that abolish a surviving wife’s dower right.

The measures are now Public Acts 489 and 490 of 2016.

This is good news since dower right is a relic of the past, sometimes referred to as an “inchoate dower interest” (You can look it up in Black’s Law Dictionary if you are interested.)

I have previously written about the consequences for failing to account for a wife’s dower right in real estate transactions. It appears that there won’t be any Michigan case law developing over this issue in the years to come.

Lawyers will no longer be including in transferring deeds from marital couples the magic words “and his wife for purposes of dower only.”  Something to get used to.

 

e-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

 

 

 

 

Special Purpose National Bank Charters for #Fintech Companies

December 2, 2016 Leave a comment

Today, Thomas J. Curry, Comptroller of the Currency gave remarks at Georgetown Law School about Special Purpose National Bank Charters for Fintech Companies. You can read the remarks here.

Mr. Curry announced that the Comptroller of the Currency (OCC) would move forward with considering applications from financial technology (fintech) companies to become special purpose national banks.

Mr. Curry had this to say, in part:

“Over the past year, no topic in banking and finance has drawn more interest than innovative financial technology, and for good reason. The number of fintech companies in the United States and United Kingdom has ballooned to more than 4,000, and in just five years investment in this sector has grown from $1.8 billion to $24 billion worldwide.

“The OCC published a paper discussing the issues and conditions that the agency will consider in granting special purpose national bank charters.” You can check that paper out here

 

http://www.dwlawpc.com

e-mail: Jeshua@dwlawpc.com

Categories: banking, fintech, Uncategorized

Real Estate Law Update: A Holdover after Foreclosure Sale Is Not a Tenant.

November 11, 2016 1 comment

Happy Friday!

 

Today I am posting about a Court of Appeals case decided on November 1st – Seymore v Adams Realty, et al

Foreclosed Property = high risk/high reward.

Real estate investors are always wary of the many pitfalls when purchasing property at foreclosure.

The Adams Realty Case provides an example of what happens when someone is still occupying the Property after foreclosure.

Should you just change the locks?  

Should you take matters into your own hands?

 

FACTS:

  • Plaintiff, Seymore was allegedly locked out of a house located in Detroit after Adams Realty and Michael Regan allegedly changed the locks on or about October 9 or 10, 2014.
  • Defendant Michael Regan purchased the house on or about October 2, 2014, from Bank of America.
  • Bank Of America purchased the property on December 19, 2013, by way of a sheriff’s sale.
  • Seymore sued Regan and Adams Realty claiming that by changing the locks Regan violated the “Anti-Lockout Statute” MCL 600.2918.

 

Anti-Lockout Statute – MCL 600.2918 

Any landlord who has gone through the process of evicting a tenant knows that, in the residential leasing context, there are heightened duties of landlords, and heightened rights of tenants.  Tenants have the right not to have their possessory interest in the property interfered with, without the proper court procedure being complied with (Summary Proceeding Action in District Court).

 

Here, Seymore claimed that she was in possession of the Property after foreclosure and by changing the locks, the purchaser had unlawfully interfered with her right to possess the Property.

 

The Anti-Lockout statute provides damages for forcible ejectment from property or unlawful interference with a possessory interest in property.

 

Subsection (1) (forcible ejection) applies to any person. 

Subsection (2) (unlawful interference) applies to any tenant in possession.

Violating the statute can cause a property owner/landlord to be liable for statutory damages (3 times the amount of actual damages or $200.00 whichever is greater.)

In this case…

Seymore claimed that she was was basically a “hold over tenant” after foreclosure and had rights under the anti-lockout statute.

The Court of Appeals said – no. The Anti-Lockout statute applies to “tenants”. Seymore did not not show any facts that would say she was a tenant. The anti-lockout statute does not apply.

“MCL 600.2918(2) does not provide relief for a person, such as [Seymore] who remained in possession of property after a foreclosure but who had no contractual relationship with the owner of the property.” Seymore, id at Page 3, citing Nelson v Grays, 209 Mich App 661  (1995).

 

Conclusion:

Just changing the locks after redemption has expired is not “unlawful interference with a possessory interest” under MCL 600.2918(2) if you, purchaser, do not have a contract with the occupier of the Property.

However, the anti-lockout statute enforces penalties against a property owner who takes “forcible actions” that, as the court in Shaw v Hoffman, 25 Mich 162 (1872) noted “in some way inspire terror or alarm in the person evicted.”

To avoid any unfounded claims by holdovers, it always makes sense after purchasing property at foreclosure, when there are any occupants present, to go through the lawful channels for a court proceeding to extinguish any possessory rights.

You don’t want to expose yourself to undue liability.

 

Questions? Comments?

E-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Categories: Uncategorized

Real Estate Case Law: Tenants in Common v Tenants with Full Rights of Survivorship – A Potentially Costly Distinction.

November 3, 2016 Leave a comment

This morning I read a court of appeals decision that came out on October 18 – it provides a classic example of why you need to take care in drafting real estate documents.

 

The case: In Re Estate of Lyle Steiner

Facts are relatively straight forward:

  • In 2007, Tuscan Plaza Condominiums, LLC, conveyed a personal residence to Lyle F. Steiner and Steven Steiner.
  • Specifically, the deed provides that the property was conveyed: to LYLE F. STEINER, A SINGLE MAN AND STEVEN M. STEINER, A SINGLE MAN
  • Lyle passed away. Steven was appointed personal representative of Lyle’s estate.
  • DHHS filed a claim against the estate for unpaid Medicaid bills in the amount of $48,084.95.
  • Steven subsequently filed a petition to reform the deed to Lyle’s personal residence to indicate a joint tenancy with a right of survivorship.

What’s the significance?

Law: Distinction Between Tenants in Common and Joint Tenants with Full Rights of Survivorship

 

Under Michigan law, there are generally two ways to own real property – Tenants in Common and Joint Tenants with Full Rights of Survivorship. (A third way, not part of my discussion, but very interesting topic, being as husband and wife, or tenants by the entirety).

Tenants in Common

Holding property as Tenants in Common means that each owner holds the entire title along with the owners. . Each owner shares in possession of the entire property, and each is entitled to an undivided share of the whole. If an owner dies, his interest in the property is passed on to his heirs.

Joint Tenants with Full Rights of Survivorship

Conversely, in Joint Tenants with Full Rights of Survivorship, when an owner passes away, their remainder interest in the property passes to the remaining owners. Simply put, the last joint owner to die takes the entire property.

In the Steiner Estate Case:

The Deed indicated that Lyle and Steven owned the Property – there was no “survivorship language” – so the property was held as “tenants in common”.

 

When Lyle Steiner passed away – an undivided half interest in the Property was owned by the Estate – and therefore DHS had a, presumably, valid claim for its $48,084.95!

If the Property was held as Tenants with Full Rights of Survivorship – Lyle Steiner would have no Estate – his half of the Property would transfer automatically to Steven.

No Estate = No money to pay DHS.

Steve attempted to argue that the Deed should be “reformed” because Steve’s complete ownership upon Lyle’s death was intended.

The Court of Appeals was not convinced.

To paraphrase – the Deed is not ambiguous. It is plain in its meaning.

because it is plain in its meaning – you cannot look outside of the deed to other evidence that shows Lyle’s intent.

 

Conclusion:

Real Estate can be precise and complex. It is worth engaging legal counsel in any real estate matters.

 

http://www.dwlawpc.com

e-mail: Jeshua@dwlawpc.com

Twitter: @JeshuaTLauka

 

 

 

A Call to Young & Future Leaders

October 19, 2016 Leave a comment

Several years ago I moved my family to the Grand Rapids Area. As a new member of the West Michigan community I asked myself one fundamental question: where am I going to serve in my local community…

Source: A Call to Young & Future Leaders

Categories: Uncategorized