Archive for the ‘Business Matters’ Category

Getting Paid – Notice of Contract Filing

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So you’ve completed your work but now you’re running into problems getting paid for the job. As most people in that situation are aware, the Private Works Act (should that be the applicable act) provides very specific instructions for preserving your claims and privileges in this situation. In common terms, the PWA allows you to lien property in order to secure your right to payment. What many people do not know, however, is that there are very specific limitations on this preservation of rights. The subject discussed here is one such limitation: the requirement of filing a notice of contract for certain projects. The notice of contract filing is important because, depending on the amount of the contract, the filing date will determine the time period in which one can file a lien. It is a rather nuanced area of the law, but here we’ll break it down piece by piece.

What is a Notice of Contract?

When the homeowner and the contractor execute a contract, in order for certain parties to later preserve their claims and privileges, a notice of contract must be filed with the mortgage office in the parish where the work is being performed. Louisiana Revised Statute 9:4831. The information required to be contained in the notice is outlined in Louisiana Revised Statute 9:4811, and includes: the signatures of the owner and the contractor; the legal property description of the immovable where work is being performed’ the parties to the contract and their mailing addresses; the price; when payment of that price is to be received; and a general description of the work to be done. When information is omitted, the notice will only be found improper if that incorrect or omitted information is either the parties and their addresses or if the immovable is incorrectly identified. In those two scenarios, the notice of contract will be deemed improperly filed.

An important element in determining just what the notice of contract is is also a discussion of what it is not. The notice of contract is not the contract document! When you look through the PWA, the above is the only required information that must be submitted as a “notice of contract.” Depending on the scope of work, the notice of contract might only be one page long! Why is this important? The short answer: money. Let’s use Orleans Parish as an example. In Orleans Parish, filing a notice of contract will cost you $60 for the first two pages and $13 for each page thereafter. If parties were required to file the contract as opposed to a notice of contract, they would be on the hook for hundreds of dollars just in filing fees. In paring down the information needed for the notice, though, the filing can be extraordinarily cheaper.

Why File a Notice of Contract?

The filing of the notice of contract is important because it will help determine when the tolling period begins for filing liens. This is where matters become complicated. First, we must understand that there are numerous parties involved and affected by the filing of the notice. Most straightforward is the contractor. If a contractor does not file a notice of contract for projects that exceed $25,000.00, then that contractor loses his right to later file a lien. La. R.S. 9:4811. Therefore, if the contractor wants to retain the rights granted to him by the PWA, on projects of a certain sum, the notice of contract must be filed before work begins, which is defined by Louisiana Revised Statute 9:4820. If the contractor is entitled to the rights granted by Louisiana Revised Statute 9:4801, and if they have filed the notice of contract properly, then that contractor will have until sixty (60) days after the filing of the notice of termination or after substantial completion to file their lien.

The trickier calculation deals with subcontractors. The first part of Louisiana Revised Statute 9:4822 states that when a notice of contract is filed properly, then those parties granted a privilege by Louisiana Revised Statute 9:4802 (subcontractors, as well as others) will only have thirty (30) days after the filing of the notice of termination to file their lien. Note the very important difference between those provisions. In the case of a subcontractor and a proper notice of contract, the time period to calculate your lien deadline starts when a notice of termination is filed and not when the project is substantially completed. If the notice of contract is not properly filed, then the subcontractor has sixty (60) days from the filing of the notice of termination or from substantial completion to file the lien.

What Does This Mean?

The notice of contract, therefore, is pivotal in determining when a lien period terminates. For example, if a notice of contract is properly filed, but there is never any termination of work filing, a subcontractors lien period might never end. This, obviously, greatly impacts the rights of the parties to the contract. However, it is not a simple issue.

The language of the Private Works Act is very particular and phrases and terms were chosen for a very specific purpose. There is a reason why some places use “filing of notice of termination of work” versus “substantial completion of work” – it is because they are different concepts. There is a reason why there is specific information that must be included in a notice of contract and why that impacts different parties. These statutes were crafted with care and intent. Considering how important they are in determining your rights, the safest thing you can do to protect your business is to discuss the matter with an attorney. After all, we’re here to help.

 

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Posted in:     About Our Services, Business Matters, Construction Contracts, Construction News, Mechanics Lien  /  Tags: , , , ,   /   Leave a comment

Mediation! New Service Available at Wolfe Law

Seth J. Smiley, partner at Wolfe Law Group, LLC and author of ConstructionLawMonitor.com is now a formally trained mediator. New Orleans just hosted the AAAU’s (American Arbitration Association University), Essential Skills for the New Mediator workshop in downtown, hosted by Neil Carmichael.

Why would parties want to mediate a dispute instead of going to court? That answer is easy, yet has many factors. The most important are that mediation is less expensive and much more efficient compared to litigation. But the most important factor is that the parties control their own outcome, rather than a group of strangers (jury).

So if you are in a dispute and are looking for an economical, logical and swift conclusion that is mutually agreeable between you and your adversary, then mediation may be just what you are looking for. Contact the Wolfe Law Group, LLC for more details.

Posted in:     About Our Services, Arbitration & ADR, Business Matters, California, Collections, Construction News, Disputes, Green Building, Insurance, Litigation, Louisiana, Oregon, Washington  /  Tags: , , , , , , , , , , , ,   /   1 Comment

California Civil Procedure Series – How to File Suit

As an attorney in multiple states (California and Louisiana) there are many overlapping rules and theory of law that are transferable from jurisdiction to jurisdiction. However, there are many local and state wide idiosyncrasies that are not necessarily taught in law school or not easily attainable for pro se or pro per litigants. This post has some helpful tips regarding filing a law suit.

California is a jurisdiction of forms. The State Bar has gone to great lengths to make a form for just about any situation. In that same light there are many that overlap and you nearly need a law degree just to navigate through the long list. The California Courts also have very helpful information regarding the legal process and all of the different procedural devices used by lawyers.

A typical checklist for items needed when you file your civil case are 1) Complaint, 2) Civil Cover Sheet, 3) Summons, and 4) Receipt and Acknowledgement. The complaint is your main document to be filed. This is where the Plaintiff lists out all of the facts and causes of action that related to the allegations being asserted in the suit. The complaint is the lawsuit itself and will be a part of the public record. The Civil Cover Sheet is a mandatory form that needs to accompany any new filing. This tells the clerk what type of case is being filed. Next is the Summons. This document tells the court and the opposition who is being sued and what that person/entity’s legal rights are with regard to an answer. Lastly is a handy little form that I like to include called Notice and Acknowledgment of Receipt. This form allows for you to mail serve the Summons and Complaint on your adversary saving time and money. If the defendant does not reply within 20 days, it will be obligated to pay for your service fees. The normal delay to respond to a suit is 30 days.

Once you get your complaint filed you will want to serve your adversary with the documents to complete the process. You can use the Notice form listed above but if that fails then you will have to hire a process server to get the suit to the defendant. Regardless of how you serve them the clerk of court requires proof of service. This too is another form, Proof of Service of Summons. This helpful form has a long check list of methods of possible service. You make sure you followed one of the statutory required methods, file your proof and then your law suit has formally begun. You then must wait for your adversary to answer.

This blog post is a part of the California Civil Procedure Series written by Wolfe Law Group. You should contact an attorney when dealing with procedure issues as there are strict time limitations which need to be followed.

Posted in:     About Our Services, Business Matters, California, Construction News, Dispute A Lien, Disputes, From The Experts, Litigation  /  Tags: , , , , , , ,   /   Leave a comment

Tips to Stay Organized: Going Back to the Basics

Technology is everywhere. We use it constantly throughout every hour of each day. While it has made our lives easier and more convenient, is it better than a time when we didn’t rely on it so much? Most would agree that yes, it is better, and in many instances that may be true, but in some cases it seems that going back to the basics can be more effective.

A recent article from the American Express Open Forum expresses such an instance. According to the article, “Pen and Paper: Killer Productivity Apps,” studies show that hand-writing notes on paper helps with memory skills and can heighten brain activity. Physically writing things down actually helps us to remember things.

So how can this relate to the construction industry?

To be honest, these tips can be helpful in any industry. If you want to remember something, don’t simply store it in your smartphone or tablet. With the amount of apps and distractions that these devices can hold, your priorities can get cluttered. For contractors and construction workers, project checklists and dates involving project deadlines and lien deadlines are extremely important details that need to be remembered. Write these important notes and dates down, and save them somewhere in which you can be constantly reminded. Simply saving them in technological devices will not always suffice and can easily get overlooked. If deadlines aren’t met or checklists aren’t completed, numerous problems can arise. Stay organized, and write things down to help remember!

For those who must use technology like myself, there are programs like Evernote which allow for storage of all notes and even allow for writing on tablet devices. Evernote is great and I highly recommend and its Evernote Trunk list out all compatible apps where you can find writing applications.

Posted in:     Around The Web, Business Matters, Construction News  /  Tags: , , , , ,   /   Leave a comment

Construction Insurance Rates Predicted To Increase

According to a recent Press Release from Marsh, a leader in insurance broking and risk management, construction firms across the U.S. will be facing new challenges in the upcoming year. Insurance rates have been declining for close to a decade, but rates are forecasted to increase between 8 and 10 percent. Firms with poor loss histories will receive higher rates, and some may not even be able to renew their policies.

This rise in rates is apparently the result of “soft market conditions” in recent years. Michael Anderson, Leader of Marsh’s U.S. Construction Practice, stated, “This comes against the backdrop of medical cost inflation and changes to some state statutes that have extended coverage beyond the insurers’ originally intended scope.” Mr. Anderson also goes on to explain that even with the increase in rates, the industry’s capital is still strong resulting in market conditions remaining competitive.

To read more about this Press Release and other interesting Construction Market Updatesclick here.

Contractors need to be sure to stay current on all insurance so that the contractor will limit its exposure when occurrences happen. Being insured is a major expense in all construction companies. That expense will be justified when a claim is made. Insurers seek to exclude or deny coverage, therefore a good attorney will be needed to fight back. Here at Wolfe Law Group, LLC we handle situations where we work with insurers to aid our clients and other situations where we fight insurers to get them to pay our clients what they are owed under the policy.

Posted in:     Business Matters, Construction News, Insurance  /  Tags: , , , , , , , ,   /   Leave a comment