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Estate Planning-It’s Not Just What Happens to Your Stuff
When You Die

October 2, 2014 / in Uncategorized Written by Katherine Albrecht

Most people know they need a will, whether they choose to do something about it or not.  They care about how their assets will be distributed at their death.  However, they often do not realize that they also need to plan for what will happen to themselves and their assets if they become incapacitated.  They assume family members will handle things, but fail to give those family members the tools to do so.  The most important part of an estate plan may turn out to be the patient advocate designation, the durable power of attorney, and the authorization of disclosure of medical information.  Read more →

 

News From The Courtroom

April 10, 2012 / in Uncategorized

Commercial Insurance Benefits Rewarded

Mike Gibbons and Peter Gojcaj recently won a six figure judgment on behalf of a business client against its insurance company. The insurer refused to pay the benefit due after a loss covered by the client’s commercial liability insurance policy, requiring the client to pursue payment in court.

Unjust Enrichment Case Dismissed Before Trial

Keith Jablonski recently succeeded in having a case against a large manufacturing client dismissed by a Federal Court. The Plaintiff sought substantial damages, for which the Court ultimately found our client was not responsible.

Detroit Free Press – Guest Editorial
Comments by Beier Howlett attorney Joe Yamin, who represents clients in the firearms industry, were featured in the Detroit Free Press recently. Read full article here.

 

News From The Courtroom

March 23, 2012 / in Uncategorized

School Law

Peter Gojcaj and Michael Gibbons prevailed for their client, a public employer, in an arbitration claim filed by an employee asserting violations of an employment agreement.

Commercial Property

Keith Jablonski recently succeeded in obtaining a dismissal with prejudice of a lawsuit brought by a contractor against our client, a commercial property owner. The contractor had performed work for a tenant of our client. When the tenant neglected to pay for the work, the contractor unsuccessfully attempted to collect from the building owner.

 

Michigan Builders Trust Fund Act

March 22, 2012 / in Uncategorized


Evident throughout metro Detroit is the fact that the Great Recession has thoroughly impacted the local real estate and construction industry. Critics may argue that the real estate and construction industry, along with the subprime mortgage mess, was the impetus for the rest of the nation’s economic collapse. Irrespective of any cart-before-the-horse theory, it remains clear that the residential construction industry has been devastated.

As the economy began to crumble, subcontractors continued to provide labor and materials to real estate owners and developers. To date, many have never been paid for those materials and services. The Michigan Builders Trust Fund Act (MBTFA) attempts to remedy this wrong. The Act was created as a criminal statute but Michigan’s Supreme Court has ruled that it acts as a civil cause of action.

In its essence, the Michigan Builder’s Trust Fund Act prohibits the contractor or subcontractor’s use of monies received for a particular project for anything other than first paying laborers and suppliers on that project. Builders have a fiduciary obligation when they receive funds for a particular construction project.

Indeed, the Michigan Supreme Court has ruled that a reasonable inference of appropriation arises from the payment of construction funds to a contractor and the subsequent failure of the contractor to pay laborers, subcontractors, materialmen, or others entitled to payment. Because of this fiduciary duty and the implications of fraud, a debtor cannot discharge this type of debt under bankruptcy.

In fact, officers of corporations may be held individually liable when they personally cause their corporation to act unlawfully or when they participate in a tortious or criminal act, whether on behalf of themselves or the corporation. The focus on whether a contractor violates the Act is when the contractor receives payment for a construction project, then fails to pay his or her subcontractors.

The MBTFA indicates that an intent to defraud is evidenced simply by ‘the appropriation by a contractor…of any moneys paid to him for building operations before the payment by him of all moneys due or so to become due laborers, subcontractors, materialmen or others entitled to payment.’ The Michigan Court of Appeals has gone to the extent to indicate that “the general assertion that there was not enough money ‘to go around’ is not sufficient to rebut the presumption of misappropriation without more.”

“The difficulties posed by a downturn in the economy or poor business acumen do not excuse the MBTFA’s obligations in regard to accounting practices and ordering of payment.”

Peter Gojcaj is a partner with the Beier Howlett business law group.  He counsels clients in a wide variety of business contract issues, including construction matters.

For more information on how the Michigan Builder’s Trust Fund Act can work for you, contact the Business Practice Group at Beier Howlett. (248) 645-9400.

 The Business Practice Group at Beier Howlett

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