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  • Sears Files for Chapter 11 Bankruptcy

    Former retail giant Sears filed for chapter 11 bankruptcy on Monday of this week. They have a plan in place for how to revive the company, that includes closing at least 142 stores, and are seeking creditors to keep them afloat instead of having to liquidate the company. The law offices of Oliver & Cheek are well versed in the ins and outs of business law, and are here to help your large or small business through any situations. Today we are digging into different versions of bankruptcy and how Sears’ bankruptcy filing choice can help you learn which is best for your business when facing a financial struggle.

    Filing for chapter 11 bankruptcy is used by large businesses to reorganize debts and continue operations. Corporations, partnerships, and LLCs are not allowed to file for relief under Chapter 13, thus Chapter 11 would be the only option for these entities if reorganization is needed. If a company files for relief under Chapter 7 it must end operations upon the filing of the case. In North Carolina the bankruptcy administrator supervises the case. A Chapter 11 plan is submitted to the court detailing the proposed treatment of secured and unsecured claims and a judge then approves or confirms the plan. The plan—which details creditors to be paid, how much they are paid, and how long the plan lasts—is then implemented. Usually plans for small businesses last three to five years. Sears chose chapter 11 because it allowed them the flexibility to reorganize, stay open through the holidays, and then continue in their reorganization strategy into the new year. For Sears and many other businesses this is a great choice, and can breathe new life into the company, eventually allowing it to completely revive itself. Where Ch 7 is final Ch 11 provides needed flexibility in keeping a business alive.

    Two other forms of bankruptcy are Ch 12 and Ch 13. Both are inherently different in their strategies as well.

    Ch 12  is used by farmers or commercial fishermen to reorganize their debts and continue operating their farms or fishing operations. The advantage of Chapter 12 is that the reorganization plan will allow payments to be made seasonally, when the farmer or fisherman earns his money. The limitation of only being able to restructure loans in a five-year period in Chapter 13 cases is not a limitation in Chapter 11 or Chapter 12 cases. A corporation, partnership, or LLC, along with individuals, are eligible for relief under Chapter 12 as family farmers or family fishermen.

    Ch 13 is a “reorganization” bankruptcy that allows a person to repay some or all debts. The amount paid to creditors is based on what you want to keep, what you earn, and how much non-exempt property you have. Those who choose this option are usually behind on their house and car payments, but desire to catch up on those payments to keep the property. This option does not necessarily mean all creditors will be paid in full—it is a way to repay taxes to the IRS or North Carolina Department of Revenue as there are no penalties when you pay through a Chapter 13 plan.

    All of us here at the law offices of Oliver & Cheek understand that no one option will be entirely perfect for your business. For many filing for bankruptcy is the last resort, we are here to help guide you through the process, helping you pick the best strategy and ultimately trying to save your business. For more information feel free to contact us today!

    At Oliver & Cheek business law is one of our specialties and we are here to help you through all of your business needs, organization and beyond. For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

    filing for bankruptcy, business law, oliver and cheek, new bern nc lawyers,
  • Business Succession Plans

    For many, owning your own business is one of the most important things in your life. The thought of being ready to pass on the business you have poured many hours into doesn’t seem to be in the near future. Yet wherever you are in the process of owning a business, be it new, well seasoned, or ready to retire having a business succession plan is necessary to ensure that a change of hands for any reason will go smoothly and with as little stress as possible. At Oliver & Cheek we are experts in business planning and are here to answer all of your questions regarding creating or updating a business succession plan.

    Picking a successor or deciding to sell the business as a whole upon the owners retirement or death is the first step in building a business succession plan.

    If selling the business isn’t an option then picking a successor to take over once the owner leaves is the next, but more complex, choice. A successor can be a competent family member, assistant or business parter set to step in once the owner leaves. However, sometimes there are multiple partners within a business that may not want the successor chosen to take over. A Buy-Sell agreement can be worked out between remaining partners, so that those who do not want a successor can sell back their portion of the business to the remaining partners.

    When a business owner decides to sell the business upon retirement or death a valuation of the business or that owners part of the business needs to be conducted. A CPA can help with this process or an agreement between all remaining partners can be reached to settle the value of the total business or the share that has left. If the partners had business life insurance policies that can be used to purchase a deceased partners shares there are a variety of purchase agreement that can be used. For more information schedule an appointment with one of our highly-skilled attorneys to create a plan to best fit your needs.

    Ultimately having a business succession plan creates an ease in the settling of the owners estate, and provides an already established valuation of the business between partners and owners.

    At Oliver & Cheek business law is one of our specialties and we are here to help you through all of your business needs, organization and beyond. For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (sources: investopedia, forbes)
    Business succession plan, Small business, business law, business planning, new bern nc, law offices of oliver and cheek
  • Choosing between a Living Trust or Will

    Estate Planning, the task of preparing for the future of your family once you are no longer around. It can be a daunting task as no one wants to think about what will happen after they pass. However it is extremely important to ensuring your family is provided for during that time. Estate planning can include writing a will as well as establishing a living trust. All of us here at Oliver and Cheek are ready to help you decide which estate planning tool meets the needs of you and your family.

    A will is an end of life document that designates how property and assets will be distributed at the time of your death. The benefit is that a will can be amended, updated, and rewritten at any point during your lifetime. It will also allow you to provide a guardian to your children if need be. The downfall of this document is that it must go through a probate court and be settled by an executor. This can be a lengthy and expensive step depending on the intricacies of your document. Proper planning at the beginning will save your loved ones from a long probate process in the future.

    If the potential of a probate court process is not something you or your family are interested in, thinking about planning your estate with a Trust may be the better option. A trust still allows you to still transfer property and assets to your loved ones after death, yet it avoids probate court or the need for an executor of a will. It can still be amended throughout your lifetime, and when the time comes a named trustee will ensure that property and assets are divided as stated.

    Regardless of which you choose both are great options for planning your estate during your lifetime as well as taking care of your loved ones after you’re gone. To learn more about which tool may be right for you call us at Oliver and Cheek to schedule an appointment.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (sources: Investopedia, Legal Zoom)
    filing for bankruptcy, business law, oliver and cheek, new bern nc lawyers,
  • Why Different Corporate Structures Matter

    When starting a business or considering reorganization one of the biggest questions to ask is: What Corporate Structure is right for me? Knowing the difference between the ways your business can be structured is integral in making that decision. In many cases this comes down to understanding how each structure is taxed by the government. Two popular choices are either to organize as a Limited Liability Company (LLC) or as a Corporation, but what’s the difference?

     

    Organizing as a Corporation

    Within a Corporation the most common forms of organization are either a S corporation or a C corporation. What these versions have in common is that a corporation is autonomous from the owners. As in it can act on its own in buying or selling property, legal matters such as suing or being sued as well as ownership can change by buying or selling stocks.

    S Corporations are better for those who offer a public service as it offers the same protection and structure of a corporation yet has the same tax benefits as a LLC. The business pays no tax on the corporate level, however individuals and owners pay taxes on profits.

    C Corporations are taxed directly by the government as well as owners pay taxes on profits made. Owners of the C corp still receive limited liability protection that protects personal assets separate from the business. A benefit of organizing as a C corp is that payroll and benefits among other things can be deducted from taxes.

    Organizing as a LLC

    Unlike a corporation, LLC’s don’t offer shares in their business. If an LLC has multiple owners they all share a percentage of the business. They also have the benefit of being flexible in how they are taxed while offering the most levels of protection between business and private assets. The LLC is either taxed through the individual profits that the owner or owners make, or as either a S or C corporation.

    In the end it comes down to what makes the most sense for your business. With any   of the models you choose comes a variety of pros and cons. We here at Oliver & Cheek understand how to help you make the right choice and minimize the cons.

    At Oliver & Cheek business law is one of our specialties and we are here to help you through all of your business needs, organization and beyond. For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

     

    (Sources: Corporate Direct, Business News Daily)

    business structures, LLC, Corporation, Oliver and Cheek Attorneys, New Bern NC,
  • Elder Abuse: Know the Signs and Speak Up


    The National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    Late last year, members of Congress came together in bipartisan agreement to pass a law supported by the American Bar Association (ABA) that would enhance the federal government’s response to elder abuse and financial exploitation of seniors.

    Signed by President Donald Trump, the Elder Abuse Prevention and Prosecution Act of 2017 was passed by voice vote in the House and Senate. Both bodies were informed of alarming statistics on elder fraud and abuse—this prompted overwhelming support for the legislation.

    Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) commented, “Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are.” He sponsored the legislation with Sen. Richard Blumenthal (D-Conn) and 14 other co-sponsors.

    This legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be a top priority for law enforcement,” Grassley added.

    What is Elder Abuse?

    Elder abuse takes many forms: Physical abuse, neglect, financial exploitation, sexual abuse, and emotional or psychological abuse. Research estimates that only one in 14 cases of abuse is reported to authorities. Despite the underreporting of cases, the National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    “Elder abuse…is a problem that respects no boundaries,” Thomas M. Susman, director of the ABA Governmental Affairs Office, told Congress. “It’s not defined by socio-economic, racial, or ethnic status, and it occurs with alarming frequency in your states as well as all others.”

    What is Elder Law?

    Elder law is a relatively new concept due to the extended life spans of many Americans. This branch of law serves the needs of the elderly and their families. Why is it so important? Research shows the country’s fastest-growing demographic segment is people 85 and older, and the U.S. Census Bureau predicts people 65 and older will make up approximately 20% of the population by 2030.

    Quite an impressive range of issues are covered by elder law, both legal and financial, and include: Conservatorships, power of attorney, abuse, guardianship, probate and estate administration, estate planning, and end-of-life care.

    North Carolina law protects disabled adults of any age from abuse, neglect, and exploitation. The law states that “any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information.” Definitions are:

    Abuse: Willful infliction of physical pain, injury, or mental anguish, unreasonable confinement, or the willful deprivation by a caretaker of services necessary to maintain mental and physical health.

    Neglect: A disabled adult who is either living alone and not able to provide for himself the services necessary to maintain his mental or physical health or is not receiving services from his caretaker.

    Exploitation: Illegal or improper use of a disabled adult or his resources for another’s profit or advantage.

    North Carolina law now offers extra protections to combat financial exploitation of adults 65 and older and disabled adults. Under the law, customers of financial institutions can submit a list of people to contact if the institution suspects the customer is a victim or target of financial exploitation. The institution is also required to report any suspected exploitation to local law enforcement. If the suspected victim is a disabled adult, the financial institution is required to report to the contact list, local law enforcement, and the county Department of Social Services.

    Warning Signs of Elder Abuse

    Authors Lawrence Robinson, Joanna Saisan, MSW, and Jeanne Segal, Ph.D. recently provided Helpguide.org an amazing amount of information concerning this topic. They say signs of elder abuse can be difficult to recognize or mistaken for symptoms of dementia or the elderly person’s frailty—or caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so.

    Frequent arguments or tension between the caregiver and the elderly person or changes in the personality or behavior in the elder can be broad signals of elder abuse. If you suspect abuse, but aren’t sure, you can look for clusters of the following warning signs.

    Physical abuse warning signs:

    • Unexplained signs of injury, such as bruises, welts, or scars, especially if they appear symmetrically on two sides of the body.
    • Broken bones, sprains, or dislocations.
    • Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should).
    • Broken eyeglasses or frames.
    • Signs of being restrained, such as rope marks on wrists.
    • Caregiver’s refusal to allow you to see the elder alone.

     

    Emotional abuse warning signs:

    • Threatening, belittling, or controlling caregiver behavior.
    • Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to themselves.

     

    Elder neglect or self-neglect warning signs:

    • Unusual weight loss, malnutrition, dehydration.
    • Untreated physical problems, such as bed sores.
    • Unsanitary living conditions: Dirt, bugs, soiled bedding, and clothes.
    • Being left dirty or unbathed.
    • Unsuitable clothing or covering for the weather.
    • Unsafe living conditions (no heat or running water; faulty electrical wiring or other fire hazards).
    • Desertion of the elder at a public place.

     

    Financial exploitation warning signs:

    • Significant withdrawals from the elder’s accounts.
    • Sudden changes in the elder’s financial condition.
    • Items or cash missing from the senior’s household.
    • Suspicious changes in wills, power of attorney, titles, and policies.
    • Addition of names to the senior’s signature card.
    • Financial activity the senior couldn’t have done, such as an ATM withdrawal when the account holder is bedridden.
    • Unnecessary services, goods, or subscriptions.

    (more…)

    Elder Abuse, Know the signs, Elder Law, Family law, Estate Law, Law Firm of Oliver and Cheek, Oliver and Cheek attorneys, New Bern NC

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