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Author Archives: Christopher P. Finney

COVID-19 Developments: The Ohio Stay-At-Home Order is not all that broad

Author By Christopher P. FinneyPosted on

Here is the Ohio Stay-at-Home order.

Read it carefully, as it is not as broad as the reports of today’s press conference might lead you to believe.

For example, as it relates to Finney Law Firm, and Ivy Pointe Title, law firms, title companies, Realtors, insurance companies and lenders are all deemed essential and thus the purchase and sale of real estate can continue unless the closing of auditor’s and Recorder’s office (in Ohio) and Clerk’s offices (in Kentucky) cause title to become uninsurable.

What the order says

The meat of the order is:

All businesses and operations in the State except Essential Businesses and Operations as defined below, are required to cease all business activities within the State except Minimum Basic Operations, as defined below.

Moreover, all Essential Businesses and Operations are encouraged to remain open. In other words, unless you are forced to be closed, they want you to continue operating and presumably at full strength.

But the exceptions are incredibly broad

Then the order goes on to except or define as Essential Businesses and Operations, which is virtually everyone:

  • Working from home and home-based businesses
  • Food service providers (production, distribution, fulfillment, and storage)
  • The construction industry
  • Building management and maintenance
  • Airport operations
  • The entire utility industry
  • The oil and gas industry
  • Distribution centers
  • Garbage collectors
  • Computer and internet-related companies
  • All governmental functions
  • Grocery stores and pharmacies
  • Food, beverage and marijuana production (including farming, manufacturing, processing, and cultivating)
  • Animal shelters, rescues and kennels
  • Religious facilities
  • Media and news companies
  • Other first amendment speech activities, which would include activities relating to the primary and general elections, protests, and rallies.
  • Hardware stores and stores selling HVAC, plumbing or electrical equipment and materials
  • tradesmen such as plumbers, electricians, janitors, exterminators, painters and HVAC repairmen
  • Everyone involved in the postal or shipping industry
  • Schools that already have not been ordered closed as long as 6-feet of distance is maintained
  • Laundromats and dry cleaners
  • Restaurants for carryout food only
  • All means of transportation
  • Home-based healthcare
  • Professional services such as law, insurance, title and real estate
  • Banks and other lending institutions
  • Labor union functions
  • Hotels and motels
  • Funeral services

It also allows for travel:

  • To visit healthcare providers;
  • To obtain services from Human Service Operations, which include nursing homes, day cares, residential facilities for those with developmental disabilities and substance abuse issues, vocational services, rehabilitation services, adoption agencies, and those providing services to the indigent
  • To shop
  • To go to and from Essential Businesses and Operations

Enforcement

There is no enforcement mechanism for the Order, and indeed the Governor said as much in today’s press conference that they don’t intend to put anyone in jail for violating the Order. Thus, it is aspirational in nature, or perhaps just intended to get everyone’s attention to stop interacting with others as much as possible.

Conclusion

Certainly, the Governor intended something by the order, but given the incredibly broad exceptions, and the lack of any intent to enforce it, it appears to be an attempt to educate the public on the dangers of work and social interactions more than a heavy hand telling Ohio citizens what they can and cannot do in their work life.

Call our any of attorneys if we can advise you on COVID-19-related developments.

Tax Law: IRS extends 2019 filing deadlines and due dates for tax payments (annual and quarterlies) to July 15

Author By Christopher P. FinneyPosted on

The Treasury Department and Internal Revenue Service announced Friday that the federal income tax filing due date is automatically extended from April 15, 2020, to July 15, 2020.

They also announced that taxpayers can also defer federal income tax payments due on April 15, 2020, to July 15, 2020, without penalties and interest, regardless of the amount owed. This deferment applies to all taxpayers, including individuals, trusts and estates, corporations and other non-corporate tax filers as well as those who pay self-employment tax.

The IRS announcement is here. These are unquestionably remarkable times.

Ohio Real Estate Law: Ivy Pointe Title goes the extra mile to assure we continue to be “Accurate and On Time” during the COVID-19 pandemic

Author By Christopher P. FinneyPosted on

In order to protect the safety of all parties to a real estate closing, Ivy Pointe Title has a team of closers willing “go the extra mile” to obtain signatures and notarize documents for buyers and sellers.

Curb-side service

To minimize social interaction, if you drive to either of our two offices (Mt. Adams or Eastgate), you can sign documents from the comfort of your car. We will come to you with the documents, obtain signatures, and notarize those that need to be acknowledged.

Travel to your location

We will also travel to the homes or workplaces of buyer and sellers to obtain signatures and notarize documents.  When all signatures are obtained and the transaction is funded, we will record the documents, issue the title insurance policies and disburse.

Best closing practices for hygiene and safety

We use “best practices” in all of our closings, including (a) we will not meet in person with any buyer or seller who is ill or exhibiting flu symptoms, (b) none of our closers will work or attend any in-office or remote closing if he or she is ill, (c) we wash hands, use hand sanitizer, and use Clorox wipes of all pens, equipment and surfaces before and after each closing, (d) we will not shake hands and will maintain a safe distance from all closing participants and (e) almost all of our Ivy Pointe personnel are working remotely from home to limit human-to-human interaction at the company.

Teleconferencing for Realtors and lenders

At closings, we also have the technology and have trained our personnel to teleconference in lenders and Realtors from our laptops so they may participate at all stages, all while keeping a social distance and minimize the amount of people gathered at one time.  Ahhh, this probably won’t fly for roadside service closings, but we can try with FaceTime!

A great future together

Let’s all cooperate to keep the closings moving forward and stay safe!

Conclusion

Even in the most difficult times and the most difficult transactions, Ivy Pointe’s team is willing to go the extra mile to be “Accurate and On Time” in your real estate closing. Contact Rick Turner (513.943.5660) or Eli Kraft-Jacobs (513.797.2853) to close your real estate transaction quickly and accurately.

Ohio Commercial Litigation: Game still (mostly) “on” with respect to litigation

Author By Christopher P. FinneyPosted on

Most Courts have taken a hiatus for an unknown period of time in response to the COVID-19 crisis for most (but not all) trials and live hearings, but nonetheless, litigation work with the team at Finney Law Firm still marches on. (For example, emergency Probate guardianship hearings still are proceeding and criminal proceedings cannot be stayed indefinitely due to Constitutional speedy trial requirements).

Components of litigation

Litigation at the trial level typically consists of four components, (a) the initial pleadings (Complaints, and Motions to Dismiss or an Answer), (b) discovery (consisting of document production, written interrogatories and requests for admission), (c) motion work and then (d) pre-trial and trial work.

Certainly the initial pleading stage and the discovery can be completed without any person-to-person interaction.

Initial pleadings

For the initial pleading stage, we can exchange documents and emails and interview the client over the phone or on a web chat.  We then prepare the pleading and can, in most jurisdictions, file it electronically or via fax. If not, it can be mailed in.

Discovery

Typically, the first phase of discovery is written discovery, wherein each side asks the other for relevant documents, paper and electronic, and certain questions in the form of interrogatories and “requests for admissions.”  This can all, of course, occur, without any personal meetings. Again, we can gather documents from the client electronically and can interact over the telephone or computer.

Depositions are somewhat trickier, but we have consulted with our Court Reporter, and they assure us that both in-state and out-of-state depositions can be conducted using Skype, Teams or Zoom.Com without any two people being in the same room.

Thus, each component of discovery can be “socially distant” and not endanger any of the litigants, their counsel or the Court reporter.

Motion work

Again, motion work is mostly in writing. In federal Courts, evidence at the motion stage is admitted via a Declaration that does not need to be sworn before a notary public. The attorney does need to maintain an original signature of the Declarant in his files, but that can be mailed between the client and counsel.  Audio-visual materials may need to be physically filed with the Court, but again that can be addressed through the mails. State Court evidence is admitted via Affidavit, which means it does need to have a notary public personally witness the signature, but there are notaries still working throughout the COVID-19 crisis.

Certain motions by statute or by Court Rule require evidentiary hearings or in-person argument (Restraining Orders, Rule 11 Motions, and hearings on Motions to Set Aside Settlement).  However, other than limited statutory exceptions, litigants do not have a right to have an in-person appearance before a Judge on motions.  As a result, the trial Courts could proceed with their work by either eliminating hearings on motions entirely or calling for motion hearings to be held via web or telephone.

Many cases are resolved on motion work, including Default Motions, Motions to Dismiss and Motions for Summary Judgment. If so, the case is “over” or on to the Court of Appeals (see below) without any person-to-person contact.

Thus, all motion work could easily be handled without person-to-person contact or even live court appearances.

Pretrial and trial 

Herein lies the rub. Ohio law and the US and Ohio Constitution require that all trials — civil and criminal — be conducted in public and that means in-person attendance. If this crisis progresses, we suspect that our government officials may feel compelled to allow both litigants and observers to appear via web cam.  (Surprisingly, that change was just recently more or less unilaterally-declared by the Ohio Attorney General for meetings of public bodies in Ohio.)

But until that change occurs, litigation could well be jammed-up indefinitely at the trial stage. And because it will require Constitutional action, that could take some time and procedural maneuvering as well.

 Appellate work

Appeals work at the Ohio and federal Courts of Appeals and Supreme Courts historically is mostly done via paper filings, appellate briefs and occasionally motion work. But by tradition, not by any constitutional or statutory requirement, Appellate Courts have held oral arguments on the merits of an appeal. This is not a right of litigants and therefore the tradition of oral arguments can be waived or modified (such a conference calls or web cams) by the Courts, and if this crisis is protracted, we expect them to do so.

Conclusion

First, most litigation work that does not require the Judge’s involvement (hearings on motions and trials) can proceed in typical fashion with attorneys working from their home or office.  We expect that if this crisis extends into summer, the Courts will free up the logjam by modifying rules to allow at least motion hearings via conference call or web-conferencing. If the crisis extends into the fall, the courts may need to consider evidentiary matters coming into the record in ways other than in-person testimony, including Affidavits, video depositions and Skype, Teams or Zoom video conferencing.

For more information on moving forward with your commercial litigation project, please fell free to contact Brad Gibson (513.943-6661), Casey Taylor (513.943.5673), or Christopher P. Finney (513.943.6655.

Finney Law Firm News: Christopher Finney is admitted to the bar of the US Tax Court

Author By Christopher P. FinneyPosted on

Who says you can’t teach an old dog new tricks?

In the past year, I got two new bar admissions, the D.C. District and Bankruptcy Court and the United States Tax Court.

I obtained the Tax Court admission to help a client avoid a small tax penalty due to his securities dealer mishandling his IRA account and reporting the monies in it as having been distributed, when no such thing happened.

We won without even having a hearing, so my record is 100% before the Federal Tax Court. If I never file anything there again, I might keep that perfect record!

In any event, I have another certificate for my wall. Thanks to Diane Finney for keeping me looking sharp!

Remote Online Notarization is (almost) here

Author By Christopher P. FinneyPosted on

Ivy Pointe Title is actively pursuing Remote Online Notarization (“RON”) in order to effectively and conveniently conduct closings during the COVID-19 crisis.

What is a Remote Online Notary (RON}?

First, understand what this revolutionary technology means: With e-signature and e-notary, original inked documents will no longer be required; everything can be signed through on-line execution.  A buyer on his computer in one place can sign all of his closing documents, including the mortgage and other documents that need to be acknowledged (notarized) in his living room or home office, with a remote notary public sitting at a desk in another location. Similarly, a seller sitting in his kitchen at home can sign the deed and have it acknowledged (notarized) by an on-line notary sitting at his desk in another location. The Seller can likewise sign all of his other closing documents from his living room.  Disbursements can be via wire transfer, mailed or hand-delivered checks. In other words, every single document (including the deed and mortgage) can be signed by a party without leaving his home, and without a notary public physically (but rather virtually) present.

Where are we today?

We are in discussions with our underwriters, lenders and Realtors to comply with all RON laws, mandates and edicts.  Rather than being “first” to the table with this ground-breaking technology, we want to make 100% sure we can do this correctly when we do launch.

We will keep you informed of each step as we navigate these new uncharted waters.  In the meantime, check out this new American Land Title Association (“ALTA”) bulletin:  https://www.alta.org/news/news.cfm?20200317-ALTA-Industry-Partners-Develop-Draft-Bill-to-Permit-RON-Nationwide

Expect more updates from us shortly.

Ohio Commercial Law: COVID-19 crisis and force majeure

Author By Christopher P. FinneyPosted on
Attorney Christopher P. Finney

 

With the raging COVID-19 crisis and its economic fallout, the question that we are fielding the past few days is:

How can I get out of my contract to do “X”?

Each of the three analyses below hinges on the language of the contract.  Thus, “it depends.”

Contract Contingencies

First, with respect to contracts to buy companies, real estate or other assets, consider the contingencies in the contract.  For example, read here and here for easy “exits” from Cincinnati Area Board of Realtors residential contracts for buyers.

“Force majeure” provisions

But what about leases, long-term supply contracts, employment contracts, construction contracts and other commercial contracts?

Many such contracts contain what is known as a “force majeure” provision that essentially contemplates precisely the situation in which we find ourselves today: Some unexpected exigency such as war, famine, or pandemic.

In its essence, a force majeure clause is a contract provision that excuses a party’s performance under a contract when certain circumstances beyond their control arise, making performance impracticable, impossible or illegal. These clauses are common in complex commercial contracts, such as a commercial lease (and we really don’t expect to actually use them).  Yet here we are and they can be a business-saving resource in determining how to proceed.

Can this provision excuse your performance and let you “get out of” a contract? Well, as you might expect your attorney to say: “it depends.”  It depends on the language of the contractual provision.

Here is a sample force majeure provision from a commercial contract:

In the event a party shall be delayed or hindered in or prevented from the performance of any obligation (other than a payment obligation) required under this contract by reason of strikes, lockouts, inability to procure labor or materials, failure of power, fire or other casualty, acts of God, disease, restrictive governmental laws or regulations, riots, insurrection, terrorism, war or any other reason not within the reasonable control of such party, then the performance of such obligation shall be excused for a period of such delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.

Would such a provision allow a tenant to terminate a lease? Would it allow an employer to terminate an employment contract for a term? Would it allow a manufacturer to avoid its obligations under a supply contract?

In this contractual language, we have the specific exceptions of “disease,” “acts of God,” and “restrictive governmental laws.”   Since we have a disease that is arguably an “act of God,” and government-imposed shutdowns, it would seem that there are multiple bases upon which to argue for termination.  But there could be countervailing arguments as well.  For example, payment obligations are not excused in this sample language.

Some courts have applied force majeure clauses very narrowly, meaning that the specific occurrence has to be contemplated by a force majeure provision. Thus, is the word “disease” in your force majeure clause? Well, COVID-19 would seem to fit tightly within that definition, but does it? Hamilton County, for example, as of this writing, has no reported cases, and yet tens of thousands of people have been thrown out of work because of the fear of pandemic.

Mere diminished performance or increased expenses to perform alone likely would not be a sufficient basis to excuse performance and invoke a force majeure clause.

Business Interruption Insurance

Do you have business interruption insurance that would cover the COVID-19 pandemic consequences?

If you were prescient or cautious enough to buy business interruption coverage, that usually covers only a direct physical loss such as a fire, flood or earthquake.  Some policies require that a loss be specifically designated, while other policies have no such requirement.

  • In the case of COVID-19, it may be tough to prove a direct physical loss but what if a workplace is contaminated and unusable due to a COVID-19 outbreak?
  • Possibly, business interruption coverage could be invoked if a supplier shuts down and can’t supply product or parts due to COVID-19

Additional considerations

Before triggering contingencies, invoking a force majeure provision or making a claim for insurance coverage, consider the following:

  1. Are alternative means to perform your contractual obligations.
  2. Will the other party to the contract consider mitigation of the performance problem, such as a rent reduction or other part-performance?
  3. Could the parties reach a mutual agreement to terminate a contract or delay performance?

Conclusion

Virtually overnight, our firm and our clients have found ourselves in the middle of single worst crisis in perhaps 100 years.  The first option should be to work towards accommodation with the other party to the contract.  Beyond that, we have the options set forth above to consider for relief in this incredibly challenging environment.

Call one of our skilled and experienced attorneys if you want to explore your legal options or pursue one of these remedies.

To valued clients, vendors and friends:

Author By Christopher P. FinneyPosted on
Christopher  Finney

 

 

 

 

 

 

 

 

 

We wanted you to know that Finney Law Firm remains open for business and continues daily to fully serve our clients.  However, the COVID-19 crisis is deadly serious, and without everyone’s cooperation, has the potential to endanger the lives of thousands of those we serve in Ohio and Kentucky and those we love.  Thus, we are taking aggressive and careful steps to protect you and our team in interactions with our office:

  • We have expanded our use of teleconferencing, e-signature, and other electronic communications to avoid person-to-person contact where it is not necessary.
  • Many of our attorneys and staff are now working from home where possible to limit person-to-person interactions. We have equipped our Team with laptops and other technology to assure the volume and quality of work remains the same.
  • We are carefully sanitizing each office daily, and conference rooms before and after each and every use.
  • We are asking clients not to bring children and any “extra” parties to the office.  Bring yourselves only.
  • If it is necessary to sign documents, we can come to your house or place of business to limit the number of persons with whom you are interacting. Let us know if you prefer this option.

Finney Law Firm wants to “Make a Difference” in your personal life and business for many years to come. In order to do that, we need to protect your health and that of our team.

Thank you for the trust you have placed in us for these many years.

Sincerely,

Christopher P.  Finney

 

Real Estate Practice Tips: 11 best mobile apps for Cincinnati real estate lawyers, Realtors, investors and lenders

Author By Christopher P. FinneyPosted on

There are a plethora of fantastic apps that help real estate professionals ply their trades from their cars, from the coffee shop, from a property you are viewing or from home on their phones.  Each of the apps listed here are available at the Apple Store and are free.  Many will also be available at Google Play.

We picked some we like at Finney Law Firm and polled some of our Realtor, lender and investor clients.  Here are the top ten:

1. Amortization calculators.

There are a host of apps for calculating mortgage payments and running amortization schedules.  The simplest one is “Mortgage Calculator for IPhone” and “Mortgage Calculator for

2. Zillow.

Zillow has revolutionized the real estate marketplace on the ,mobile platform.  It helps Realtors and mobile buyers find properties and their listing and sales information.

Image result for zillow mobile app

3. Gas buddy.

There is no longer a guessing game to find the cheapest fuel for the mobile professional. Gas Buddy instantly identifies the cheapest gas within range of your car or any zip code you select.

Image result for gas buddy mobile app

4. Social media.

Sorry, but it’s a scrum for the best social media platform to promote your business and communicate with your customers and potential customers.  Facebook clearly has the broadest reach, but YouTube, Twitter, Linkedin, and Instagram each have their audiences.  Today’s plugged-in (or wireless) real estate professional can’t live without these platforms.

Image result for facebook linkedin instagram and twitter logos

5. Genius scan.

If you had house plans or a plat of a development or subdivision, the only options were to buy a large-scale scanner for the office or to drive to Kinkos. Now, the coolest, fast and free option is Genius scan. You download it onto your cell phone, and just take a picture from a desk, conference table or dining room table of a plat and viola you have a clear PDF of any drawing.  This image can later be placed on any computer screen or printed.  It is life-changing.

Image result for genius scan mobile app

7. Dusty Rhodes County Auditor’s web site.

Dusty Rhodes has a nifty mobile app that has most of the property search information at your mobile fingertips as are available on his web site.  In fairness, it looks like it is an off-the-shelf app used by most Ohio Auditors.

Image result for hamilton county auditor mobile app

8. Credit Karma.

Free credit app information at your fingertips. Many lenders and Realtors have their clients download the app to understand how they will fare with lenders.  Constantly updated and reliable, Credit Karma is a great app and we recommend it. There are of course many other apps that can help with your credit scores as well including Credit Sesame, Nerd Wallet and Wallet Hub, as well as scores available directly from two of the credit rating services themselves: Experian and TransUnion.

Image result for credit karma mobile app

9. DocuSign.

Indispensable in today’s real estate marketplace are e-signatures and, of course, tehre are apps for that.  Each of Adobe Sign, DodLoop and DocuSign have mobile apps making e-signing even easier fro your phone.  We recommend DocuSign.

Image result for docusign mobile app

10. Around me.

OK, tihs nifty mole app is referred to as a “LifeStyle App. ” When showing or viewing a property, it tells you stores, restaurants, hospitals, movie theaters, and gas stations near the property. It helps buyers understand the neighborhood in which they are buying.

11. Magic Plan.

Magic Plan is another creative application that allows you to measure and draw any space.  In 3D.  For free.  Check it out!

Image result for magic plan mobile app

Conclusion

These are our top 11.  What are your ideas?

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