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Alan Kan

Alan Kan’s Answers

9 total

  • In a Chapt.11 Bankruptcy Adversary Case

    The Defendant was required to respond with Initial Disclosures within 14 days (January 21, 2011), they have not done so. Can a default be taken? I am not expecting any cooperation in discovery from them.

    Alan’s Answer

    I assume based on your question, that this is a debtor in possession case. It is unlikely that you will be able to obtain a default in a bankruptcy action. But there may be consequences for failing to abide by the reporting rules. One possible consequence could be a dismissal of their bankruptcy filing. Another maybe that their case be converted to a chapter 7. I would consult a creditor's attorney to advise you.

    In regards to your discovery, if they fail to cooperate, you can always file for a motion to compel and charge them with any costs associated with such a motion. But depending on their financial position, that may or may not be very helpful to you.

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  • I deposited checks that i didnt have any money on and took the money out. Please tell me i am not going to jail

    I deposited checks from a bank account to another and with drew the money when i really didnt have it. Please tell me i am not going to jail for this,

    Alan’s Answer

    Each state is different with respect to their bad check laws. But if you wrote a check knowing that it will bounce, it is a crime in most states. Most states, however, do require a recipient of a bad check to send a notice to the check writer to pay the bad check off within a certain period of time, then if the check writer refuses to do so, then they may possible pursue a criminal action against you. I would consult an attorney, but would also highly consider paying for the bounced check to minimize any impact it may have. It's much better to say, if the police are asking, that you made good on that check then do nothing at all. Good luck.

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  • What advantage or disadvantage 4 my family umbrella corp. 2 oversee 2 GA corps that R managed by by non-family members ?

    One corporation provides a service to an industry. Other corporation trains retail & distributor s/p & the same industry. Currently family members work in both At 70 ,I would like to be less the day to day So I want to...

    Alan’s Answer

    I would be interested in learning a bit more about your businesses and your goals for each of them. As each situation is different, the following are just general thoughts in response to your question.

    The structure you suggested with a holding company (the umbrella corp) owning two separate and related subsidiaries is quite common and can be a very useful tool in terms of efficient corporate management, asset protection and estate planning purposes.

    Typically the structure works like this: You first create the holding company with whatever ownership structure you like (including the one you mentioned above). Next, we will need the holding company to be the sole shareholder/member of the subsidiaries. This can be accomplish by a transfer/sale of the shares/interest to the newly formed holding company (but please note that such a transfer will likely trigger tax implications, so please speak an experience attorney and CPA for tax related issues) with the result of the holding company being the only owner.

    The basic operations of the two subsidiaries do not change, it's just a change in ownership. Since the holding company will be the sole owner of the subsidiaries, there's no need for you and your family members to have to own separate shares in the subsidiaries since that's reflected in the ownership structure of the holding company.

    Having both subsidiaries under one umbrella is also helpful because it allows for more efficient decision making. Instead of having to have meetings to decide on major decisions for each company (and prepare the corresponding corporate documentation), the holding company can usually be structured so that it streamlines the corporate formalities commonly associated with owning multiple businesses and documenting their decision-making process.

    Structuring your businesses this way may also aid in protecting your assets from potential creditors. By layering these entities, you can many times avoid losing all your businesses in the event a lawsuit pops up as a result of an issue with one of your businesses.

    Finally, from a tax perspective, I would advise you speak to a CPA, but you can usually structure the subsidiaries to be pass-thru entities where all the income will flow to the owners of the holding company bypassing the double taxation issue.

    There are many advantages to the structure you outline, but there are also draw backs. It is all a matter of proper planning and execution.

    I strongly urge you to consult an attorney familiar with corporate issues.

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  • What are we to do next to fight the last motion for judgement.

    My husband entered an agreement to pay back a debt with the creditors attorney. He was two days late in one payment and plaintiffs attorney filed a motion for default judgement citing defendant has failed to file any defensive pleadings within 45 ...

    Alan’s Answer

    Without knowing more, it's hard to properly advise you. However, in my experience, these types of cases almost always go to mediation and get settled there. Although the plaintiff's attorney has requested the judge rule on the issue without a hearing (in accordance with Rule 6.3), most judges I have the pleasure of working in front of, will usually try not to make that decision and give the parties the chance to resolve it amongst themselves.

    I would suggest that you hire a lawyer, but if that's not possible, I suggest that you write a letter to the judge asking for the case to be mediated and send a copy to plaintiff's attorney. If the debt is unmanageable, however, I suggest you look into a possible bankruptcy.

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  • I sold my business, contract does Not have a time frame. Can I keep down payment and move on to a new buyer?

    I sold my store, its a franchise. The buyers signed the contract in December 2010. They have passed the testing required by the franchise but Still have not submitted the Business plan to the franchisor. I didn't put any kind of time frame in the ...

    Alan’s Answer

    This question is very interesting. When acquiring or buying any company, the time frame in which to close (or obtain financing) is clearly spelled out in the contract to avoid situations exactly like this. However, if the contract is silent as to time, most court will imply a "reasonableness" standard to determine how much time someone has to try to fulfill the contract.

    in your situation, it seems like the buyer has been dragging their feet for quite some time. This obviously supports your argument that their delay is unreasonable and that you are entitled to find another buyer. This is especially true because the longer the delay, the more money you are losing (either from loss opportunities or time value of money). However, to be on the safe side, i would suggest that you send the buyers a certified letter stating that if they fail to fulfill their obligations under the contract by a specific date, that you will deem that failure as a termination of the contract and that the deposit will be forfeited accordingly.

    But it's always best to consult a business lawyer in your state as each state has different laws.

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  • What do I do if I signed a non-compete agreement with a cupcake store where I took a job

    The agreement states I can not work for another cupcake business that gets 50% or more sales from cupcakes within 35 miles of the business. I started working there saying that I required 35-40 hours a week. By end of the 1st week, my hours were ...

    Alan’s Answer

    Each state has it's own laws relating to non-compete agreements. Generally, most courts do not like to enforce non-compete agreements because they restrict the ability of employees to earn a living. However, courts are cognizant that certain employees may have access to confidential or sensitive information, client list, trade secrets, vendor relationships, etc. that may justify having such an agreement. However, if you are just a regular employee and this agreement substantially restricts your ability to earn a living, then I think you have a strong argument to invalidate the non-compete. I suggest you reach out to your formal employer and ask for a release. If they refuse to grant a release, i advise that you contact a lawyer to write a letter, on your behalf, setting forth why the non-compete should not be enforced.

    If that doesnt work, then I would definitely file a declaratory judgment invalidating the agreement. As far as damages are concerned, the amount awarded, if any, depends on the harm the employer sustained. if there's no harm, the employer may still be able to obtain an injunction prohibiting you from taking that job.

    Hope this helps.

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  • Purchased a car from a buy here pay here lot was told no interest was on car and it was sold as is i payed agreed amount and car

    was tooken and i was told that i can only get it back if i gave him 2500 more. so when i bought the car in oct of 2009 i paid a down payment of 3500 i was told there was no interest on the car it was a flat 6500 and i was to pay 250 for a year to ...

    Alan’s Answer

    The agreement for the purchase of the vehicle will typically control. I am unsure about Ohio, but most states have very generous consumer protection laws that may apply to your situation. I advise you to speak to an attorney as soon as possible, otherwise, your rights may be prejudiced.

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  • I was evicting a tenant who filed Bankruptcy. How am I able to proceed with the eviction?

    I am evicting a tenant from a residential property I own in Hesperia, CA. The tenant has not paid rent for a year, & I have incurred thousands in fines from the tenant having garbage, debris and unlicensed dogs on the property. The evening before ...

    Alan’s Answer

    I am not an expert in California law, but in all bankruptcy cases, as soon as the debtor files an automatic stay is put in place, which prohibits all collections activity including eviction. Even if you have a writ of possession, you still need to petition the bankruptcy court to get permission to continue the eviction.

    The failure to file for relief of stay may lead to fines and penalties. Regarding whether a trustee is necessary, the trustee protects the interest of all the creditors, not just you, so regardless of whether you are the owner of the property or not, the trustee is a necessary part of the bankruptcy process. I am unsure about the 30 day stay rule.

    I encourage you to retain competent creditor's counsel if this tenant is really making your life so terrible. Hope this helps.

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  • Car bought

    i bought a car from my employer and was going to pay him after i worked for him. He lied there was tag was not expired and there was insurance. i was given a ticket by the police and my car inpounded. He went and took the car that i did not finish...

    Alan’s Answer

    Obviously, without knowing more, it is hard for me to properly answer your question. But here are a few general thoughts on your situation.

    Your options depend, in large part, on what you and your employer agreed to and whether the agreement is in writing. If you made payments on the car and he is refusing to honor such payments, you definitely have a claim against the employer for breach of contract. Also, you are entitled to payment for any services that you rendered -- depending on whether you're an employee or independent contractor -- if the employer fails to pay you, the employer may be in violation of various state and federal law, including the Federal Labor Standards Act. I advise you speak to an attorney to discuss your options.

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