While dodging bullets around the world, creditors may be conducting a rear assault on our military personnel's assets at home. The Congress came to the rescue in 1918 with the Soldiers' & Sailors' Civil Relief Act, which was amended in 1940 during the Second World War.
The Act is intended to provide unbothered personal serenity and security in order to promote military efficiency; and to assure that soldiers and sailors are not materially disadvantaged in prosecuting or defending legal actions. Judges can stay a legal proceeding if a serviceperson's ability to prosecute and defend an action is impaired by active duty. (So far no judge has enforced a stay to promote military efficiency)
The Act specifically provides relief in matters of rental and installment contacts, foreclosures and termination of insurance. In addition, maximum rates of interest (including service charges, renewal charges, fees, etc.) are set. Even divorce and annulment cases have been suspended.
A 1993 U.S. Supreme Court case demonstrates the problems the Act can cause. In Conroy v. Aniskoff, a property was sold by tax foreclosure, but the Court held that all statute of limitations are suspended. Since the right of redemption continues until active service is terminated, a member of the armed forces could show up years after the sale and demand to redeem the property.
The Conroy case may apply to ordinary foreclosures. And, failure to comply with this provision of the Act can result in imprisonment for one year and/or a fine. Help ... Congress!
*** For more information about the Soldiers' & Sailors' Civil Relief Act or to seek legal counsel for pending litigation, please contact Gross & Romanick by filling out their online form, emailing law@gross.com, or calling 703-273-1400.
Thursday, October 30, 2008
Monday, October 27, 2008
Mechanic's Lien: What is Part of the Original Contract
A recent decision by Judge Thomas D. Horne of the Circuit Court of Loudoun County in Tart Lumber Co., Inc. v. Drewer Dev. Corp. may have significant impact on the timing requirements for filing mechanic's liens by suppliers, subcontractors and other lien claimants. Judge Horne dismissed approximately half of the $91,613.51 of liens by finding that each invoice evidenced a separate contract with a separate required date for filing of the memorandum of mechanic's lien.
Under Virginia Code ß43-4 a lien claimant must file a memorandum of lien no "later than ninety days from the last day of the month in which he last performs labor or furnishes material." In the 1993 Virginia Supreme Court case of American Standard Homes Corp. v. Reinecke a portion of a mechanic's lien was dismissed because subsequent orders were not considered part of the original deal; thus, the memorandum for the earlier materials was found to be filed after the statutory period for filing expired.
Judge Horne essentially agreed with the title companies' view of the Reinecke case. Even though the contractor signed a credit agreement pursuant to which the goods were delivered, the court found that each separate delivery was a separate contract. The credit agreement did not obligate the supplier to sell, nor the buyer to purchase, any specific materials. Thus, the court found each order to be a separate contract with a new 90-day filing requirement.
While Judge Horne is only a circuit court judge and his opinion has no precedent value in other courts, it may mean that other judges and ultimately the Virginia Supreme Court will have the same interpretation of the Reinecke case. On the other hand, we are aware that other circuit court judges have ruled more favorably regarding inclusion in "last perform(ed) labor or furnish(ed) materials". Apparently there are some cases on appeal to the Virginia Supreme Court to settle this issue.
Meanwhile, it will be important to file mechanic's liens within 90 days of the last day of the month for each separate invoice, or make sure you can prove that subsequent deliveries were pursuant to a prior single contract. Judge Horne's opinion focused on whether the supplier would have been required to deliver and whether the contractor would have been required to accept the materials in question; absent such requirement, he found that there was no contract and each delivery was a separate sale with a separate time period. This means that claimants need a written contract for the entire order, or file quick and often.
As you imagine, claimants seeking to collect unpaid bills believe the courts are impairing the protection that the mechanic's lien statute intended to provide. Property owners, title companies and banks are pleased with the ruling which presents another technical roadblock to enforcement of a mechanic's lien.
The above article is not meant to replace legal counsel. To speak to an attorney, please contact Gross & Romanick directly by filling out our online form, emailing law@gross.com, or calling (703) 273-1400.
Under Virginia Code ß43-4 a lien claimant must file a memorandum of lien no "later than ninety days from the last day of the month in which he last performs labor or furnishes material." In the 1993 Virginia Supreme Court case of American Standard Homes Corp. v. Reinecke a portion of a mechanic's lien was dismissed because subsequent orders were not considered part of the original deal; thus, the memorandum for the earlier materials was found to be filed after the statutory period for filing expired.
Judge Horne essentially agreed with the title companies' view of the Reinecke case. Even though the contractor signed a credit agreement pursuant to which the goods were delivered, the court found that each separate delivery was a separate contract. The credit agreement did not obligate the supplier to sell, nor the buyer to purchase, any specific materials. Thus, the court found each order to be a separate contract with a new 90-day filing requirement.
While Judge Horne is only a circuit court judge and his opinion has no precedent value in other courts, it may mean that other judges and ultimately the Virginia Supreme Court will have the same interpretation of the Reinecke case. On the other hand, we are aware that other circuit court judges have ruled more favorably regarding inclusion in "last perform(ed) labor or furnish(ed) materials". Apparently there are some cases on appeal to the Virginia Supreme Court to settle this issue.
Meanwhile, it will be important to file mechanic's liens within 90 days of the last day of the month for each separate invoice, or make sure you can prove that subsequent deliveries were pursuant to a prior single contract. Judge Horne's opinion focused on whether the supplier would have been required to deliver and whether the contractor would have been required to accept the materials in question; absent such requirement, he found that there was no contract and each delivery was a separate sale with a separate time period. This means that claimants need a written contract for the entire order, or file quick and often.
As you imagine, claimants seeking to collect unpaid bills believe the courts are impairing the protection that the mechanic's lien statute intended to provide. Property owners, title companies and banks are pleased with the ruling which presents another technical roadblock to enforcement of a mechanic's lien.
The above article is not meant to replace legal counsel. To speak to an attorney, please contact Gross & Romanick directly by filling out our online form, emailing law@gross.com, or calling (703) 273-1400.
Thursday, October 23, 2008
Employers Rights Regarding Jury Duty
The words "jury duty" are not music to an employer's ear. It means the employee may miss a few days of work, or even a week or more. Many employers believe they must pay the employee for the time missed. Employers can breathe a little easier if they understand Virginia Code § 18.2-465.1 and the Federal Jury System Improvement Act.
Virginia Code § 18.2-465.1 does not specifically mention payment of salary. It does, however, state that an employer may not discriminate against an employee who is called to jury duty. The Code states that the employer may not discharge the employee, or take any adverse personnel action. Also, upon reasonable notice by the employee, the employer may not require the employee to use sick days or vacation time for the appearance in court.
The Federal Jury System Improvements Act (28 USC §1875.) does not allow an employer to intimidate, coerce or otherwise discriminate against an employee who must attend jury duty. However, an employer is not required to pay an employee for time missed as long as the employer's actions would be the same toward any employee who missed work time.
The Commonwealth of Virginia has prepared a book that answers frequently asked questions about jury duty. That book, which is published on the Internet at www.courts.state.va.us/jury/cover.htm, states that "many employers will continue to pay your salary while you are in jury service."
Consumer Online at http://consumer.org.nz/problem/leg-jury.html also offers legal advice to jurors. The site states that employers are "encouraged", but not required, to pay their employees for time missed for jury duty. Also, if an employer decides to pay an employee for jury duty, then the fee normally paid to the juror will be paid to the employer for reimbursement.
One other interesting web site is http://www.ahipubs.com/problem_solvers/jury.html. This site is designed to answer employer's questions, such as how to handle a key employee has been called to jury duty. The site advises that an employer may ask an employee not to serve, but the employer must demonstrate to the court that an extreme hardship would be placed on the employer if the employee were required to serve. An employee may refuse an exemption from jury duty, even if secured by the employer. In that case, the employer may not, "threaten to [or] discharge, intimidate or coerce" or retaliate in any way for the time the employee serves on jury duty.
Conclusion
So long as an employer does not discriminate, violate an employee contract/policy or the Fair Labor Standards Act (FLSA), an employer does not have to pay an employee for time spent at jury duty. Nevertheless, an employer may not force an employee to use sick or vacation days for jury duty as long as reasonable notice has been given to the employer.
**
The following article is not meant to replace legal counsel, merely to serve as an educational supplement to Gross & Romanick's clients. If you'd like to speak with an attorney about your specific situatin, please contact Gross & Romanick directly by e-mailing law@gross.com , filling out our online form, or calling 703-273-1400.
Virginia Code § 18.2-465.1 does not specifically mention payment of salary. It does, however, state that an employer may not discriminate against an employee who is called to jury duty. The Code states that the employer may not discharge the employee, or take any adverse personnel action. Also, upon reasonable notice by the employee, the employer may not require the employee to use sick days or vacation time for the appearance in court.
The Federal Jury System Improvements Act (28 USC §1875.) does not allow an employer to intimidate, coerce or otherwise discriminate against an employee who must attend jury duty. However, an employer is not required to pay an employee for time missed as long as the employer's actions would be the same toward any employee who missed work time.
The Commonwealth of Virginia has prepared a book that answers frequently asked questions about jury duty. That book, which is published on the Internet at www.courts.state.va.us/jury/cover.htm, states that "many employers will continue to pay your salary while you are in jury service."
Consumer Online at http://consumer.org.nz/problem/leg-jury.html also offers legal advice to jurors. The site states that employers are "encouraged", but not required, to pay their employees for time missed for jury duty. Also, if an employer decides to pay an employee for jury duty, then the fee normally paid to the juror will be paid to the employer for reimbursement.
One other interesting web site is http://www.ahipubs.com/problem_solvers/jury.html. This site is designed to answer employer's questions, such as how to handle a key employee has been called to jury duty. The site advises that an employer may ask an employee not to serve, but the employer must demonstrate to the court that an extreme hardship would be placed on the employer if the employee were required to serve. An employee may refuse an exemption from jury duty, even if secured by the employer. In that case, the employer may not, "threaten to [or] discharge, intimidate or coerce" or retaliate in any way for the time the employee serves on jury duty.
Conclusion
So long as an employer does not discriminate, violate an employee contract/policy or the Fair Labor Standards Act (FLSA), an employer does not have to pay an employee for time spent at jury duty. Nevertheless, an employer may not force an employee to use sick or vacation days for jury duty as long as reasonable notice has been given to the employer.
**
The following article is not meant to replace legal counsel, merely to serve as an educational supplement to Gross & Romanick's clients. If you'd like to speak with an attorney about your specific situatin, please contact Gross & Romanick directly by e-mailing law@gross.com , filling out our online form, or calling 703-273-1400.
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