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Robert Steven Bernstein
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Robert Bernstein’s Answers

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  • Company I ordered generator from has now gone into receivership and I deposited $3100, what are my options?

    Ordered generator and paid $3100 deposit on 15 Aug 11. Install scheduled for 21 Oct 11 cancelled due to inclement weather nothing rescheduled. Contacted company and was told to e-mail installer. Sent abt 3 emails with no response. Called company s...

    Robert’s Answer

    If this is a bankruptcy and you entered into the contract as a consumer (rather than a business), you may have a priority for repayment as a "consumer deposit." The law gives you some special protection. If this is a state law Receivership, there are special state laws that govern and they may not have the same priority system. If the company is in Ohio, do a little on-line research about Ohio Receivership. You may have to wait until get learn where the Receivership is filed. The company may be headquartered (or file) in another state.

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  • Am I allowed to include the collection fees in the amount when I turn a patient's unpaid bill over to a collection agency ?

    I am in the state of Georgia but the Collection Agancy I use is out of state. I'm just trying to find out if I can recoup the pretty high fees I have to pay to try to get the debt collected.

    Robert’s Answer

    In most states, the collection of attorney's fees (or collection expense) is dependent on whether the contract that created the debt allows the addition of fees. Do you have a written contract covering the debt and does it provide for you to collect these fees? The collection agency should be able to tell you whether they can add fees to your claims based on the contracts.

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  • Am the owner of a single member LLC and the buyer in an asset sale

    Seller's attorney is asking for a resolution for the closing. Why do I need this? I just filed the articles of organization recently and it is a single member llc, should I just take the copy of the certificate of corporation? to the closing. Than...

    Robert’s Answer

    All very good advice. In addition, ask the Seller's attorney to prepare (or give you a draft of) what they want you to sign. At least then you will be able to evaluate whether it is something simple like a resolution signed by you that you are the single member and have authorized the LLC to enter into the contract. Then it makes it much easier for you (or your attoney) to evaluate.

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  • Small Business Chapter 11 - What Happens To Pending Trials

    Our small LLC is being forced from business and all of it tied to a trial set for October against two law firms and their principals. The original suit was just legal malpractice, but after sheriff depos and new hidden discover the judge upped it ...

    Robert’s Answer

    Tough situation, but the good news is that when you file a Chapter 11, the lawsuit is an asset of the Chapter 11 "Estate" and can be pursued by the Estate. Good thing that there are not counterclaims, since the automatic stay you get as soon as you file the Chapter 11 should not stop suits by the compnay, only against the company. If there were counterclaims, it gets more complicated. You probably also have the choice to "remove" the case to be tried in the bankruptcy court, if that would be better. Sounds like you have good lawyers in your corner. Make sure you get a good bankruptcy lawyer, too, one who knows Chapter 11.

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  • Oil companey file chapter 11 any way to get out of contract !

    Oil companey file chapter 11 any way to get out of contract i donot owe them any money or they owe me any money . we rent equipment from them and they suppose to take care of the equipment but not talking care of them. also late on deliverying o...

    Robert’s Answer

    The Chapter 11 company has the option to "assume" (keep) or "reject" (get out of) the contract, with certain exceptions. Here is a link to an article I wrote which might help.

    The law requires the "non-debtor party (you) to perform your end of the contract while the company (the Debtor) decides. Ind a Chapter 11, it may take a long time for them to decide and you have to wait or convince the Court that you are being hurt by waiting.

    Chances are pretty good that you will need a lawyer to make that case for you.

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  • Oil companey file chapter 11 any way to get out of contract !

    Oil companey file chapter 11 any way to get out of contract i donot owe them any money or they owe me any money . we rent equipment from them and they suppose to take care of the equipment but not talking care of them. also late on deliverying o...

    Robert’s Answer

    The Chapter 11 company has the option to "assume" (keep) or "reject" (get out of) the contract, with certain exceptions. Here is a link to an article I wrote which might help.

    The law requires the "non-debtor party (you) to perform your end of the contract while the company (the Debtor) decides. Ind a Chapter 11, it may take a long time for them to decide and you have to wait or convince the Court that you are being hurt by waiting.

    Chances are pretty good that you will need a lawyer to make that case for you.

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  • Verbal Award of a Contract

    A business nonprofit organization sent out an RFP for professional services. The RFP was sent out 2x to the org's members. It received 2 bids (one bidder is a friend of mine). The Chair sent out the proposals to the board for review & scheduled a ...

    Robert’s Answer

    This is a very fact-sensitive question. Generally, an entity operates through officers and agents, not through its board. Although this may have been different, a board generally authorizes the President (or some other operating officer) to enter into a contract. The analysis of the "enforceability" of a contract starts with an analysis of whether there was a contract at all. Was there an offer, an acceptance, a "meeting of the minds?" Did the Chair actually enter into a contract with your friend or just tell your friend that he would be getting the deal? This is all going to be very difficult to sort out until the evidence of who said what to whom and when is nailed down. If the contract is valuable to your friend, he/she should get a lawyer would can sit down and go through the facts and match it up with the applicable state's laws on contracts AND organizational authority (including Bylaws).

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  • As a small business owner, how much interest can I charge on customers who are not paying ( designing new contract )

    Designing new contract and want to know what the max limit is to have printed on the contract

    Robert’s Answer

    Each state has different limits, as does the federal law. It depends on where your customers are. It also matters if your customers are businesses or consumers. However, as a general rule, 18% per year seems standard and acceptable.

    It is great that you are thinking about this. There are probably other provisions that you should consider. I have a book (Get P.A.I.D. A Guide to Getting Paid Faster) which talks about these issues. You should consider payment dating, collection expense, credit enhancements, forum selection (where suits get filed) as examples.

    There are many considerations (competition, market, space, customer base) which go into a good contract design. It is good to think about these things.

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  • DO YOU STILL PAY INTEREST AND LATE FEES IF YOU FILE CHAPTER 11?

    THIS WOULD BE TO THE BANK WHICH HOLDS THE MORTGAGE ON YOUR BUSINESSES AND TO YOUR DISTRIBUTORS WHICH DELIVERS YOUR SELLABLE PRODUCTS.

    Robert’s Answer

    There could be several answers.

    The simplest is: If the bank has a lien on property with value to cover the debt and the additional charges AND the loan documents permit these additional charges, then the bank can continue to add them. If either of those conditions is not present, then it probably cannot add them. Whether you actually have to write a check for them while in Chapter 11 depends upon what the Court permits the lender to do to enforce its rights.

    There may also ways to reduce the rate of the interest depending upon how the Chapter 11 Plan treats the creditor. That's where it gets far to fact-sensitive and specific to answer here.

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  • CAN THE IRS TAKE MY FEDERAL REFUND FOR STATE RESTITUTION AND PROBATION FEES?

    ok so the irs will take it and give it to the state? Right?

    Robert’s Answer

    The better question is "can the state take your federal refund and apply it to restitution and probation fees?" You definitely need a lawyer in your state because the state will have rules governing how the state collects the fees. It may be that the resitution order is like a judgment and they are using a garnishment process to get at the refund. I'm not aware that there is any easy way to attach IRS refunds. If they can take the refund, there has to be a way for notice to you and some opportunity to contest it.

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