Category: North Carolina

Registered Agent for your North Carolina Business – Can you be your own Registered Agent?

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Categories: business law, North Carolina, registered agent

This is one of a series of articles by our law firm on the topic of registered agents. For more articles on this topic, click here to access the “Registered Agent” category of articles, or select a title below.

More articles coming soon!

businessman registered agent Can You Be

First, whose Registered Agent are we referring to? We’re talking about a corporation or a limited liability company, so we mean the business entity you might own or manage, and the legal requirement in North Carolina that it have a Registered Agent (all sometimes called an “RA”).

Second, what “you” are we referring to when we ask about eligibility to be the RA? The answer to this question makes a big difference.

Can an owner, shareholder, member, or officer of a corporation or limited liability company be the RA for that business entity? Yes, as long as they reside in NC and their business address is identical to the registered agent office listed.

Can a staff member or “regular employee” of a corporation or limited liability company be the RA for that business entity? Yes, as long as they reside in NC and their business address is identical to the registered agent office listed.

Can someone not affiliated with the corporation or limited liability company in any other way be the RA for the business entity? Yes, as long as they reside in NC and their business address is identical to the registered agent office listed.

Can a corporation or business entity serve as the RA for itself? Apparently not. Interestingly, North Carolina’s statutes do not appear to directly rule this out. However, we have witnessed instances in which the NC Secretary of State has rejected attempts by business entities to do this. You can argue both sides of the question, but unless the North Carolina Secretary of State’s office changes its position (voluntarily or due to a court ruling), if you want a corp. or LLC to be your Registered Agent, it will need to be a properly qualified different corp. or LLC as your Registered Agent.

The bottom line: it’s vitally important to have a Registered Agent who is compliant and reliable.

(In case you were wondering, yes, our law firm does serve as a registered agent in both North Carolina and South Carolina, feel free to reach out to us if you’d like to know more by clicking here or calling us at 800.481.2180.)

Registered Agent for your North Carolina Business – Who Can be the Registered Agent

Posted on by g83js92js91
Categories: business law, North Carolina, registered agent

This is one of a series of articles by our law firm on the topic of registered agents. For more articles on this topic, click here to access the “Registered Agent” category of articles, or select a title below.

More articles coming soon!

Who / what can be the Registered Agent for a business in North Carolina?

See further down past the table for additional information and clarifications.
Can you “be your own RA”? Stayed tuned for our next article to find out.

WhoCan RA chart

Are the laws / rules summarized above the same for “domestic” North Carolina LLCs and corporations as well as “foreign” LLCs and corporations registering or registered in NC? Yes.

The table above says that if the RA is an LLC or a corporation, it has to be an “active” one – what does that mean? This is best interpreted to mean that the LLC or corporation serving as Registered Agent itself must be (and remain) in good standing with the North Carolina Secretary of State Corporations Division. For example, the LLC or corporation serving as Registered Agent should NOT be or become administratively dissolved or under a state of suspension due to tax issues with the North Carolina Department of Revenue.

Does this mean my company can be its own Registered Agent? Great question! Click here to read about that.

Does this mean I, as an owner, officer, and/or manager can be the Registered Agent? Maybe, but even when the answer is “Yes”, that may not be the best idea. Click here for more information.

What about the reference to the “registered office”? Click here to understand the Registered Office requirements.

Are these laws / rules the same for all of North Carolina? Yes. The laws and rules on this issue are the same whether your business or Registered Agent is located in Ashville, Boone, Cary, Charlotte (or anywhere else in the “Great State of Mecklenburg”), Durham, Fayetteville, Greensboro, Raleigh, Wilmington, or any point in between in our State.

The consequences of not having a Registered Agent or not having a legally compliant RA will be explored in another article, but suffice it to say that your LLC, corporation, or other relevant business entity can suffer significant loss of legal rights and even end up with a court order, judgment, or other legal decree against it.

The bottom line: it’s vitally important to have a Registered Agent who is compliant and reliable.

(In case you were wondering, yes, our law firm does serve as a registered agent in both North Carolina and South Carolina, feel free to reach out to us if you’d like to know more by clicking here or calling us at 800.481.2180.)

Registered Agent for your North Carolina Business – What your Mandatory Registered Agent Does

Posted on by g83js92js91
Categories: business law, North Carolina, registered agent

logo(In case you were wondering, yes, our law firm does serve as a registered agent in both North Carolina and South Carolina, feel free to reach out to us if you’d like to know more by clicking here or calling us at 800.481.2180.)

We break this short, user-friendly article down into two (2) sections: the legalities and the practicalities.

THE LEGALITIES

By way of North Carolina law, a Registered Agent (sometimes referred to as the “RA”) can be served with “service of process, notice or demand required or permitted by law to be served on an entity”. The entity being referred to here will be one of the following business entities registered with / on file to do business in N.C.:

(A) a domestic (North Carolina) business corporation, nonprofit corporation, limited liability company, limited partnership, or limited liability partnership; or
(B) a foreign corporation, nonprofit corporation, limited liability company, limited partnership, or limited liability partnership.

Thus, a Registered Agent’s primary legal duty is to receive any of the items listed above which can be served on a North Carolina LLC, corporation, or other business entity via the RA. This is true regardless of whether your business or Registered Agent is located in Asheville, Boone, Cary, Charlotte (or anywhere else in the “Great State of Mecklenburg”), Durham, Fayetteville, Greensboro, Raleigh, Wilmington, or any point in between in our State.

 

THE PRACTICALITIES

We lawyers at McGrath & Spielberger know that sometimes attorneys – to the detriment of their clients – don’t focus enough on the practical aspects of doing business and the day-to-day, real world ways in which the law impacts businesses and business owners. Let’s not fall into that trap – instead let’s go ahead and discuss some key practical and logistical factors relating to Registered Agents in North Carolina.

• What’s the #1 quality you need in a Registered Agent? Reliability.
• Why? Because, practically, if that Registered Agent doesn’t effectively process any of those notice-type items which it receives, you may have a problem.
• Your RA needs to get you these items to you immediately, in full, and preferably via multiple methods.

The consequences of not having a reliable RA will be explored in another article, but suffice it to say that your LLC, corporation, or other relevant business entity can suffer significant loss of legal rights and even end up with a court order, judgment, or other legal decree against it if your RA isn’t effectively and efficiently handling its duties.

The bottom line: it’s vitally important to have a Registered Agent who is compliant and reliable.

This is one of a series of articles by our law firm on the topic of registered agents. For more articles on this topic, click here to access all the “Registered Agent” category of articles or select a title below.

How Do You Expand Your Company Into North Carolina From Another State?

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Categories: business law, Business Law & Contracts, Charlotte, Jason A McGrath, Jason McGrath News / Media, North Carolina, small business
As a business law attorney, one of the most frequent questions I am asked is some variation of “How do I transfer or expand my out-of-state company to North Carolina?” I’ll address the most common scenarios and the reasonable options available. I’m using South Carolina as the “other” state for example purposes, since we also practice in SC. However, the same general process is true regardless of which state your company originated in.Scenario B: “I live in South Carolina, which is where my company is and will be based, but I want to expand my region of operations to include North Carolina. What should I do and how do I do it?”

Option 1: keep your South Carolina LLC open and register it with the State of North Carolina as a foreign business authorized to transact in North Carolina. You’d obtain a “Certificate of Good Standing” or similar from Florida. You then provide that to the Secretary of State for North Carolina as part of your North Carolina Application for Certificate of Authority (to conduct business in North Carolina). Assuming you are approved by NC, you’re now good to go to conduct business in both states, or either state, and you can have your principal place of business in either state. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Option 2: start an affiliated company or subsidiary in North Carolina. In certain specific instances, you may keep your South Carolina LLC open, and instead of registering it with North Carolina, you’d prefer to create and register a separate but related business entity in North Carolina. This is typically referred to as a “subsidiary” or an “affiliated company”. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Additional notes. Under any of the above options, you’ll have to have a registered agent with a “continuous presence” in NC. Many law firms (like mine) agree to provide that service for a small annual fee, but your company’s “RA” doesn’t have to be a business lawyer or law firm. Of course, we also provide the very services needed to transfer your business overall.

These actions can be accomplished without an attorney, but you should at least consider consulting with an attorney any time you make a significant change to your business entity. Good luck!

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Arbitration Fees – How Much do Arbitrators Cost?

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Categories: arbitration, arbitration'contracts, Business Law & Contracts, Continuing Series, contract law, contracts, Jason A McGrath, NC Rules of Civil Procedure, North Carolina, series, small business

Business law Attorney Jason McGrath shares some information about how much you should expect to pay in fees to an Arbitrator in this short video.

https://youtu.be/_mJseLaXzM0

Here are some of the key points contained in this informational video:

  • Arbitrators typically charge fees similar to what lawyers charge.
  • Does the Arbitrator require a minimum amount when the arbitration is scheduled? This may be called a cancellation fee or a retainer fee. The arbitrator may require this to offset a loss if the arbitration cancels.
  • Arbitrators can sometimes be bargained with to lower fees but normally these are set fees.
  • Arbitration fees (which are mostly made up of the Arbitrator’s fees) are often split evenly between the parties, but this can be altered by contract, law, or court order.

You should get advice from an attorney to assist in handling litigation issues like arbitration.

This is part of a continuing series of video blogs on contract law and arbitration – you can find the first part of this series on our blog or on our YouTube Channel.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Decision On An Arbitration Provision In A Contract

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Categories: arbitration, business law, Business Law & Contracts, Business Law Disputes, Continuing Series, contract law, contracts, Jason A McGrath, lawsuit, Litigation, North Carolina, series, video
Attorney Jason McGrath discusses some items to consider when deciding to include an arbitration provision in a contract matter in this short video.

Watch here > https://youtu.be/rOPNhRSSLVE

Here are some of the key points contained in the video:

⬤  Arbitration: do you prefer arbitration or a formal court case if there is a dispute?

⬤  The intent of an arbitration provision in a contract is to avoid a formal court case.

⬤  Arbitration provisions are, in general, enforceable and typically will be binding in the same way that a civil court judgment can be enforced.

⬤  There are ways to appeal an arbitration decision but they are limited.

⬤  Arbitration is usually less expensive than a formal court case.

⬤  You should talk to an attorney for advice when considering including an arbitration provision to your business contract.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Arbitration Agreement: How to Get to Arbitration if A Lawsuit Was Filed First

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Categories: arbitration, business law, Business Law & Contracts, Business Law Disputes, contract law, contracts, Jason A McGrath, lawsuit, Litigation, North Carolina, video
Attorney Jason McGrath shares some items to consider when your contract has an arbitration provision but the other party has already filed a formal lawsuit in the court system in this short video.

Click this link to view on YouTube https://youtu.be/J23FU7EDFB0, or watch below.

 

Here are some of the key points contained in the video:

What do you do if the other party has already filed a formal lawsuit in the court system?

  1. You go to the other side and point out that there is an arbitration clause in the contract and demand it be honored.
  2. If the other side refuses to halt the lawsuit and go to arbitration, you file a motion asking the court to dismiss or stay the lawsuit and order arbitration.
  3. This type of a motion needs to be filed before the case goes to far in the formal court system.
  4. If the court believes the arbitration clause to be valid, it will typically order arbitration and halt the lawsuit in the meantime.
  5. More often than not, arbitration clauses are enforced by courts.

You should get advice from an attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Letter of Good Standing and Certificate of Existence

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Categories: attorney, business, Business Law & Contracts, Certificate of Existence, corporation, Jason A McGrath, Letter of Good Standing, llc, McGrath amp; Spielberger, North Carolina, small business

This video contains helpful information for those going into business within the state of North Carolina including:

  • Certificate of Existence from the N.C. Secretary of State
  • Letter of Good Standing from the N.C. of Revenue

Business law attorney Jason McGrath discusses Letters of Good Standing and Certificates of Existence for North Carolina businesses in this informational video.

Click here to view on YouTube – https://youtu.be/EFhxSwkVy2E

If you are in need of legal assistance for your business in North Carolina, South Carolina, Tennessee, Georgia, Florida or Ohio, please fill out our confidential client intake form.

North Carolina Mortgage Servicers & the Duty to Disclose Fees

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Categories: foreclosure, homeowners, Lenders & Mortgage Loan Servicers, North Carolina
       As an experienced real estate, mortgage servicing, and foreclosure attorney, the issue of mortgage loan servicers’ failure to assess fees and notify borrowers in North Carolina is a problem area that I have encountered a significant number of times. North Carolina General Statute § 45-91  is set up to help borrowers understand fees that are assessed to their loans and to get timely notice of them.

       Every mortgage loan servicer must comply with this statute on every loan it services in North Carolina. The law does not limit this notice to loans that are in default or borrowers that have filed a bankruptcy. Pursuant to the law, the mortgage loan servicer must:

  • Assess any fee on the account within forty-five (45) days of it being incurred; and
  • Send a clear and concise written statement to the borrower, at their last known mailing address, within thirty (30) days of assessing the fee
North Carolina law, mortgage loan servicer, mortgage fees, North Carolina General Statute 45 91

       Any failure by the mortgage servicer to comply with this law is deemed a waiver of the right to collect the fee from the borrower. This law is applicable to all fees assessed to a mortgage loan, including things like foreclosure fees, attorney’s fees, property inspections, property preservation fees, and any other fees permitted under the terms of the Promissory Note and Deed of Trust.

       Oftentimes, mortgage loan servicers include fees on the monthly statement mailed to borrowers. It is important that you view these statements to make sure you understand the fees and that everything assessed to your loan was done within the required timeframes. When borrowers have a loan go into default or file bankruptcy, mortgage loan servicers often stop sending periodic statements or notices to borrowers. Under North Carolina law, the mortgage servicer must still comply with this law or it waives the right to collect the fees. Please note that the waiver is only for fees that were not properly assessed and communicated, you will still be responsible for the principal, interest, and any escrow amounts due under the loan.

       A mortgage servicer’s failure to comply with this law can reduce amounts it claims you owe when trying to pay off a loan, or reinstate a loan that got behind on payments, or when you file bankruptcy. If you are struggling to pay your mortgage or are already behind, please feel free to contact our office for assistance.

      Key Excerpts from the statute are below.

N.C.G.S. § 45-91.  Assessment of fees; processing of payments; publication of statements. A servicer must comply as to every home loan, regardless of whether the loan is considered in default or the borrower is in bankruptcy or the borrower has been in bankruptcy, with the following requirements:

(1) Any fee that is incurred by a servicer shall be both:

       a. Assessed within 45 days of the date on which the fee was incurred. Provided, however, that attorney or trustee fees and costs incurred as a result of a foreclosure action shall be assessed within 45 days of the date they are charged by either the attorney or trustee to the servicer.

       b. Explained clearly and conspicuously in a statement mailed to the borrower at the borrower’s last known address within 30 days after assessing the fee, provided the servicer shall not be required to take any action in violation of the provisions of the federal bankruptcy code. The servicer shall not be required to send such a statement for a fee that either:

             1. Is otherwise included in a periodic statement sent to the borrower that meets the requirements of paragraphs (b), (c), and (d) of 12 C.F.R. § 1026.41.

             2. Results from a service that is affirmatively requested by the borrower, is paid for by the borrower at the time the service is provided, and is not charged to the borrower’s loan account.

(3) Failure to charge the fee or provide the information within the allowable time and in the manner required under subdivision (1) of subsection (a) of this section constitutes a waiver of such fee.

Where Does an Arbitration Physically Take Place?

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Categories: arbitration, business, Business Law & Contracts, Business Law Disputes, Continuing Series, contract law, contracts, Jason A McGrath, lawyer, Litigation, llc, North Carolina, series, video

Attorney Jason McGrath shares some information about where you can expect an arbitration proceeding to physically take place in this short video and summarized in this blog post.

Understand the practical logistics of an arbitration that may arise from a dispute about your business contract.

Here are some of the key points contained in this informational video:

Where will the arbitration physically take place? What city or county? An attorney’s office? The courthouse? City hall?

  • As far as city or county, arbitration often takes place where a related lawsuit would be (or is) taking place.
  • Some arbitration agreements will dictate what city or county the arbitration must occur in.
  • Arbitration can usually occur anywhere that the parties agree.
  • The arbitration hearing could take place at a private law office or the arbitrator’s office.
  • Arbitration doesn’t usually occur in the courthouse.

Occasionally a court will enter an order as to the logistical specifics of arbitration, such as the hearing location. You should get advice from a contract attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio or Tennessee, we invite you to fill out our confidential client form for possible legal assistance.

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