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New Guidance for Employers on W-2 Reporting for Sick and Family Leave Wages Paid Pursuant to the Families First Coronavirus Response Act

On July 8, 2020, the Internal Revenue Service (“IRS”) and the U.S. Department of Treasury (“Treasury”) released guidance to employers regarding the requirement to report the amount of qualified sick leave wages and qualified family leave wages paid to employees under the Families First Coronavirus Response Act (“FFCRA”). The guidance was provided in Notice 2020-54 (the “Guidance”).

Background

The FFCRA, which was enacted on March 18, 2020, requires employers with fewer than 500 employees to provide paid leave due to certain circumstances related to COVID-19 through two separate provisions: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”).

The EPSLA applies to virtually all private employers with fewer than 500 employees and to virtually all public agencies employing one or more employees. Under section 5102(a) of the EPSLA, employers shall provide employees with paid sick time if they are unable to work (or telework) due to a need for leave because:

The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
The employee has been advised by a health care provider to self-quarantine due to concerns relating to COVID-19;
The employee has COVID-19 symptoms and is seeking a medical diagnosis;
The employee is caring for an individual subject to quarantine or isolation or advised to self-quarantine as described in paragraphs (1) or (2) above;
The employee is caring for his/her child if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; and
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

An employee who is unable to work or telework for reasons related to COVID-19 described in (1), (2), or (3) above is entitled to paid sick leave at the employee’s regular rate of pay or, if higher, the federal minimum wage or any applicable state or local minimum wage, up to $511 per day and $5,110 in the aggregate. An employee who is unable to work or telework for reasons related to COVID-19 described in (4), (5), or (6) above is entitled to paid sick leave at two-thirds the employee’s regular rate of pay or, if higher, the federal minimum wage or any applicable state or local minimum wage, up to $200 per day and $2,000 in the aggregate.

Pursuant to the EFMLA, expanded FMLA leave applies to employees who have been employed at least 30 days by employers who employ fewer than 500 employees (and public agencies) if those employees are unable to work (or telework) because they need to care for their children due to the closure of schools or unavailability of day care due to a government declared COVID-19 public health emergency. The first 10 days of the 12-week job-protected leave is unpaid. However, subsequent days must be paid leave in an amount of not less than two-thirds of regular pay, capped at $200 per day with a maximum cap of $10,000 per employee.

Form W-2 Reporting

Pursuant to the Guidance, employers must separately state the total amount of qualified sick leave wages paid pursuant to paragraphs (1), (2), or (3) of section 5102(a) of the EPSLA, qualified sick leave wages paid pursuant to paragraphs (4), (5), and (6) of section 5102(a) of the EPSLA, and qualified family leave wages paid pursuant to the EFMLEA.

With respect to paid sick leave under the EPSLA, in addition including qualified sick leave wages in the amount of wages paid to the employee reported in Boxes 1, 3 , and 5 of Form W-2, such amounts must be separately reported either in Box 14 of Form W-2 or on a separate statement. In labeling wages paid for reasons described in paragraphs (1), (2), or (3) of section 5102(a) of the EPSLA, employers must use the following (or similar) language: “sick leave wages subject to the $511 per day limit.” For wages paid for reasons described in paragraphs (4), (5), or (6) of section 5102(a) of the EPSLA, employers must use the following (or similar) language: “sick leave wages subject to the $200 per day limit.”

When reporting family leave wages under the EFMLEA, in addition to including such wages in the amount of wages paid to the employee reported in Boxes 1, 3, and 5 of Form W-2, employers must separately report to the employee the total amount of qualified family leave wages paid in either Box 14 of Form W-2 or on a separate statement. In doing so, employers must use the following (or similar) language: “emergency family leave wages.”

According to the Guidance, if a separate statement regarding sick leave wages and/or family leave wages is provided to the employee and the employee receives a paper Form W-2, then the statement must be included with the Form W-2 provided to the employee. If the employee receives an electronic Form W-2, then the statement shall be provided in the same manner and at the same time as the Form W-2.

Model Language for Instructions

The Guidance provides model language that employers may include for instruction to employees related to wages reported in Box 14 of Form W-2 or in a separate statement:

“Included in Box 14, if applicable, are amounts paid to you as qualified sick leave wages or qualified family leave wages under the Families First Coronavirus Response Act. Specifically, up to three types of paid qualified sick leave wages or qualified family leave wages are reported in Box 14:

Sick leave wages subject to the $511 per day limit because of care you required;
Sick leave wages subject to the $200 per day limit because of care you provided to another; and
Emergency family leave wages.

If you have self-employment income in addition to wages paid by your employer, and you intend to claim any qualified sick leave or qualified family leave equivalent credits, you must report the qualified sick leave or qualified family leave wages on Form 7202, Credits for Sick Leave and Family Leave for Certain Self-Employed Individuals, included with your income tax return and reduce (but not below zero) any qualified sick leave or qualified family leave equivalent credits by the amount of these qualified leave wages. If you have self-employment income, you should refer to the instructions for your individual income tax return for more information.”

Conclusion

The law and guidance regarding employer requirements related to wages for sick leave and family leave are rapidly evolving. We will continue to keep you informed of new developments. Please contact your Fraser Trebilcock attorney with any questions you may have about your obligations.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Worker Payroll Tax Payment’s Delayed By Executive Order

On Saturday, the President issued an executive order to defer the withholding, deposit, and payment of certain payroll taxes paid from September 1st through December 31, 2020, although the President indicated that it could end up being applied retroactive to August 1st.

The deferral applies to any employee whose pretax wages or compensation during any bi-weekly pay period is less than $4,000. The tax payments are deferred without any penalties, interest, additional amount, or addition to the tax.

The deferral applies to the employee’s portion of Social Security and Medicare taxes (a combined rate of 7.65%). (The deferral also applies to Railroad Retirement Act Tier 1 tax).

The IRS has the authority under the Internal Revenue Code to delay tax payments for up to a year during a presidentially declared disaster. The president declared the coronavirus pandemic a national emergency on March 13th.

Guidance on implementing the order and to ultimately eliminate the obligation to pay the deferred taxes is expected in the near future. That said, while the president has authority to delay the collection of taxes, only an act of Congress can eliminate them altogether.

While the deferral on collecting these taxes should result in bigger paychecks, if and when employees see a boost in their take home pay remains to be seen. First, because the relief is only a temporary deferral, employees, or their employers as their withholding agent, will have repay the deferred taxes next year. Second, many payroll companies will find it challenging to make programing changes to their payroll systems by September 1st. Finally, because the taxes are not forgiven, employers and payroll companies need guidance and further assurances from the IRS, that they will not have to foot the bill for their employees deferred taxes. As a result, it is possible that some employers will continue to withhold payroll taxes from there employee paychecks to minimize the risk both to themselves and their workers.

All of this means that over next few weeks, employers will need to explain to their employees why their take-home pay is or is not going up, and how that could be possibly reversed next year.

Stay tuned for further updates as new information emerges.

Fraser Trebilcock attorney Paul V. McCord has more than 20 years of tax litigation experience, including serving as a clerk on the U.S. Tax Court and as a judge of the Michigan Tax Tribunal. Paul has represented clients before the IRS, Michigan Department of Treasury, other state revenue departments and local units of government. He can be contacted at 517.377.0861 or pmccord@fraserlawfirm.com.

Michigan’s New Executive Orders 2020-160 & 2020-161

On July 29, 2020, the Governor signed Executive Orders 2020-160 and 2020-161, amending Michigan’s Safe Start Order and issuing revised workplace safeguards.

Starting July 31, 2020, statewide indoor gatherings will be limited to 10 people and certain bars will be closed for indoor service across the state. While this was the case previously for most of Michigan, the new order applies these restrictions to Regions 6 and 8, northern lower Michigan and the Upper Peninsula. Outdoor gatherings are still restricted to 100 people unless located within Regions 6 and 8. For these regions outdoor gatherings are limited to 250 people.

Remote work, which previously looked to be strongly encouraged is now being required if an employee can perform their duties remotely (EO 2020-160, p 3, par 1.).

Stay tuned for more developments as new information is released.

The Importance of a Well-Crafted Ownership Agreement for Your Business During the COVID-19 Pandemic

When times are good, many business disputes between shareholders, partners, or LLC members tend to work themselves out. If business is strong, the promise of profits brings parties to the table to settle their disagreements. To the extent one party wants out, it’s easier to come up with an equitable division of assets when business is humming. When times are tough, discord more frequently leads to business disruption. Accordingly, it’s in times like these, when the COVID-19 pandemic is wreaking havoc on the economy, that it’s important to make sure that your company’s operative documents are up-to-date and address key issues that may arise if your business experiences distress and the relationship among its owners is put to the test.

The Importance of an Ownership Agreement

You’ve heard the age-old advice before: Get it in writing. It’s imperative for every multi-owner business, no matter its structure, to have a written agreement in place that provides a framework for operating the business, making decisions, and navigating disputes among the owners.

Such an agreement, called an operating agreement, a partnership agreement, or a shareholders’ agreement depending on the business’ structure (this article will refer to such agreements, collectively, as “ownership agreements”), covers a range of important issues, including voting on important decisions, capital contributions to the company, guidelines for admitting new owners, splitting profits and debts, and the manner in which disputes between owners are to be resolved.

When a business is founded, optimism between owners is high and many overlook the importance of having a written agreement in place to address future contingencies. In some instances, owners simply use a form agreement that doesn’t address their unique circumstances.

For many business owners, operating according to a handshake deal or a poorly conceived ownership agreement works fine—until it doesn’t. Business conditions worsen. Relationships between owners deteriorate. Conditions change. And without a clear, thoughtful, and written agreement in place, owners have few means by which to resolve their differences. They are left to operate according to default rules established by state statutes, and often end up in litigation.

An ownership agreement is like an insurance policy—you don’t think you will need it, but it’s irresponsible, and potentially ruinous, not to have one in place to mitigate against risks. Once a dispute about important business issues arises, it’s too late to start thinking about conflict resolution procedures, such as those that are found in a strong, well-crafted agreement. Indeed, without an agreement in place, a dispute is much more likely to devolve into litigation since there’s no clear mechanism for brokering a resolution.

Common Provisions in an Ownership Agreement

It is important for business owners to work with an experienced business attorney to create an ownership agreement or revise an existing one. Doing so helps ensure that the agreement reflects the parties’ intent and the unique characteristics of the business. While every agreement is (or at least should be) customized to cover a business’ particular circumstances, common provisions address issues such as:

Management of the Business: Who is responsible for the management of the business? How are decisions to be made? An ownership agreement should ensure that the roles and responsibilities of the owners are clearly defined.
Meetings of the Owners: When are meetings to be held? What rules govern voting? What notice is required? By establishing clear processes and procedures for information sharing and decision making, a business can avoid disputes that often arise when an owner feels that he or she is being left in the dark.
Capital Contributions and Ownership Division: An ownership agreement should clearly identify how much capital each owner contributes to the business and how ownership of the business is allocated among the parties.
Profit Distribution: Not surprisingly, many disputes between owners result from disagreements over how and when profits are distributed.
Transfers of Ownership Interests: One of the most important provisions in any agreement is determining how ownership interests may be transferred. Often, agreements will provide that purported transfers that do not adhere to the ownership agreement are treated as void under the agreement. Many agreements also include buy-sell provisions that determine the process of buying out an owner and how the purchase price for an owner’s interest is calculated.
Termination of Ownership: Ownership Agreements should detail the terms on which the business can be terminated and how assets are distributed upon termination.
Resolving Disputes: To help avoid litigation in the event of a dispute, many agreements provide for alternative dispute resolution such as mediation and arbitration.

Is Your Business Ready for the Unexpected?

These are volatile times. It’s hard to run a multi-owner business under any circumstances, and the COVID-19 pandemic has further complicated life for all of us. It’s not uncommon for business owners to experience disharmony, but keep in mind that a dispute does not mean a business breakup is inevitable. A well-crafted ownership agreement can provide parties with a framework for resolving disputes and getting back to business. And if a separation is inevitable, an agreement can allow owners to move forward in an organized and efficient manner, without public scrutiny or costly litigation.

If your business does not have an ownership agreement in place, now is the time to focus on this important priority. If your business has an agreement but it has not been reviewed in years, now is the time to dust it off. We have significant experience assisting clients in fashioning agreements that allow their businesses to run smoothly and help them to resolve disputes without resorting to litigation. For more information, please contact one of the Business & Tax department attorneys.

Edward J. Castellani is an attorney and CPA who represents clients involved with alcohol beverages as a manufacturer, wholesaler, or retailer. He may be contacted at ecast@fraserlawfirm.com or 517-377-0845.

Tax Sales Proceeds In Excess Of The Tax Owed Must Be Returned To The Taxpayer

On July 17 2020, the Michigan Supreme Court ruled in Rafaeli, LLC v Oakland County (the “County”) that the proceeds for a tax sale in excess of the tax owed must be returned to the taxpayer. The ruling stems from a lawsuit filed in Oakland County Circuit Court (the “Circuit Court”), that challenged one part of Michigan’s tax foreclosure law contained in the Michigan General Property Tax Act (the “GPTA”). That provision, which dates back to 1999, allows county treasurers – who collect delinquent taxes on behalf of communities – to pocket all of the proceeds of auctioned properties, regardless of the amount of the delinquent tax debt. But the Supreme Court unanimously ruled that this aspect of the GPTA was an unconstitutional taking under the Michigan Constitution.

The case originated back in 2011 when Uri Rafaeli’s business — Rafaeli, LLC (“Rafaeli”) purchased a modest rental property in Southfield. Rafaeli inadvertently underpaid its property taxes by $8.41, that over time due to interest and penalties grew to $285.81 in unpaid property taxes. In a companion case, Andre Ohanessian (“Ohanessian”) owed approximately $6,000 in unpaid property taxes, interest, and penalties from 2011. The County, foreclosed on both properties and sold the properties at public auction, Rafaeli’s for $24,500 and Ohanessian’s for $82,000. The properties were sold in accordance with the requirements of the GPTA. The County retained the surplus proceeds and distributed them to various governmental entities.

Rafaeli and Ohanessian sued the County alleging the actions of the County violated the due-process and equal protection clauses of the US and Michigan Constitution, as well as an unconstitutional taking. The Circuit Court ruled in favor of the County reasoning that the property was properly forfeited and did not constitute a “taking” in violation of the US or Michigan Constitution. The Michigan Court of Appeals affirmed, relying on precedent from the US Supreme Court in regard to civil-asset taking resulting from criminal activity. The Michigan Supreme Court (the “Court”), reversed holding “defendants’ [Oakland County] retention of those surplus proceeds is an unconstitutional taking without just compensation..”

The Court noted that upon sale, the foreclosing governmental unit deposited all of the sales proceeds from all foreclosure sales into a unified tax sales proceeds account. The proceeds are used to cover the costs for all foreclosure proceedings for the year of tax delinquency with the excess distributed to appropriate governmental units. Michigan is one of nine states that requires the foreclosing governmental unit to disburse the excess proceeds to someone other than the former owner. The Court distinguished the civil-asset forfeiture of criminal statutes in that the purpose of such statutes was, in part, to punish the owner of the property. Conversely, the purpose of the GPTA is to encourage the timely payment of taxes, not to punish the former property owner.

The Court took an exhaustive review of common law and prior cases revealing that a Taking Clause violation will occur when the surplus is retained by the taxing authority and not returned to the former property owner. Further “(T)he GPTA does not recognize a former property owner’s statutory right to collect the surplus proceeds.” The Court conclude that the common law of the State of Michigan recognized that right. The purpose of the GPTA is not to seize property and retain proceeds in excess of the taxes owed,

Accordingly, when property is taken to satisfy an unpaid tax debt, just compensation requires the foreclosing governmental unit to return any proceeds from the tax-foreclosure sale in excess of delinquent taxes, interest, penalties and fees reasonably related to the foreclosure and sale of the property – no more, no less.

The case is now headed back to the Circuit Court to determine a remedy. However, an appropriate remedy may involve changing the GPTA. Complicating matters further is the possibility that former foreclosed property owners may come back looking for any surplus proceeds that were collected and distributed to the various government units. Some counties make a considerable sum in auction profits that they use to boost their delinquent tax revolving funds, which some counties then use to fill their budget holes.

Norbert T. Madison, Jr. is a highly regarded corporate and real estate attorney with more than three decades of experience. Primarily focused on real estate matters, Norb represents clients in all facets of the practice, including the purchase, sale, leasing, and financing of various types of real estate, as well as the development of industrial, office, retail, condominium and residential real estate. Contact Norb at 313.965.9026 or nmadison@fraserlawfirm.com.

Recent Amendments Place Creditors in a Stronger Position to Defend Against Chapter 11 Bankruptcy Preference Lawsuits

As the bankruptcy wave continues to build, more businesses are being forced to deal with bankrupt customers. What’s worse—and which often comes as a big surprise—is when a business gets sued by the debtor or bankruptcy trustee seeking to recover payments made by the debtor before the bankruptcy. Such lawsuits, which attempt to recover “preferential payments,” cost businesses time, require the expenditure of legal fees, and often result in the business paying a settlement amount to make the matter go away.

With more companies filing for bankruptcy, the likelihood that businesses will face preference lawsuits is growing. Fortunately, the Bankruptcy Code provides creditors with certain defenses they can use to ward off a preference lawsuit, and Congress recently took action that strengthens those defenses. The “Small Business Reorganization Act of 2019” (SBRA), which went into effect in February, 2020, contains amendments to Chapter 11 bankruptcy preference law that are not limited to small business reorganizations.

What is a Preference Lawsuit?

Section 547 of the Bankruptcy Code allows a debtor or bankruptcy trustee, subject to certain defenses, to recover payments made to creditors within 90 days of the filing of the petition. The look-back period for payments is increased to one year for “insiders.” The policy behind preference actions is that they prevent aggressive collection action against a debtor that might force a debtor into bankruptcy, and they also help ensure equal treatment of creditor claims.

For example, if one creditor receives payment on a debt in the days leading up to a bankruptcy filing due to aggressive collection action, but another similarly situated creditor doesn’t receive payment because it did not engage in collection action, then the latter would only be left with a claim in the bankruptcy. The preference provisions allow the pre-petition payments made to the aggressive creditor to be clawed back, allowing each creditor’s claim to receive equal treatment in the bankruptcy. That’s how the system is supposed to work.

In reality, all kinds of creditors, including those who have valid defenses to preference claims, typically get sued regardless of their defenses. Prior to the recent amendments, the Bankruptcy Code did not explicitly require debtors to conduct any due diligence as to defenses prior to filing a preference lawsuit. Historically, debtors simply sued all creditors who received payments within the 90-day period before the bankruptcy, and creditors were left to deal with such lawsuits, often filed in far-flung jurisdictions, on a one-off basis. The recent amendments to the Bankruptcy Code’s preference provisions address these issues.

Amendments to Preference Provisions

The SBRA created a new “subchapter V” to Chapter 11 of the Bankruptcy Code, which provides small business debtors an easier path through bankruptcy. Less discussed is the fact that the SBRA contained two amendments to preference laws that strengthen defenses against preference lawsuits in all Chapter 11 cases.

Prior to the amendments, debtors had to meet a low bar to file a preference lawsuit. It was relatively easy for debtors to meet their burden of proof, and once they did the burden shifted to creditors to establish defenses. The SBRA places an additional hurdle in front of debtors. Now, a debtor or trustee must consider a creditor’s statutory defenses before filing a lawsuit “based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses….” Previously, the Bankruptcy Code stated that a debtor or trust “may” do so.

Accordingly, there is now an affirmative obligation that a debtor or trustee investigate whether a creditor has a “subsequent new value”, “ordinary course of business” or other defense before moving forward with a preference action. Failure to do so may result in the dismissal of a case and/or an assertion of bad faith filing. Of course, one of the questions that will be sorted out over time in the courts is what constitutes “reasonable due diligence.”

Another welcome change for creditors included in the SBRA relates to the venue in which preference cases may be brought. Prior to the recent changes, the Bankruptcy Code provided that preference claims under $13,650 were to be brought in the district where the defendant resides, rather than where the bankruptcy case was pending. The SBRA raises this threshold amount to $25,000. This change will have a big impact, because it lessens the likelihood of preference claims of less than $25,000 being filed at all, given the costs associated with bringing an action in a distant jurisdiction.

In sum, the SBRA is good news for preference defendants. In fact, many creditors who would have otherwise been sued prior to the amendments will never become a “defendant” in the first place, given the additional obstacles debtors and trustees must overcome.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Jonathan T. Walton, Jr.’s legal practice focuses on cases arising from commercial transactions, the Uniform Commercial Code, the federal and state securities laws, banking laws and bankruptcy litigation. In the areas of banking, commercial, construction and real estate litigation, he represents lenders, contractors and owners on construction-related claims, and lenders and borrowers in commercial and residential foreclosure matters, large loan defaults and collections, lien priority disputes, and title insurance company liability. He can be reached at (313) 965-9038 or jwalton@fraserlawfirm.com.

[Video] Issues for Nonprofit Corporations During the Pandemic and How to Properly Conduct Remote Meetings

Issues for Nonprofit Corporations During the Pandemic and How to Properly Conduct Remote Meetings

Listen to Fraser Trebilcock attorney Ed Castellani discusses nonprofit matters relating to restarting operations after the COVID-19 lockdown.

Click HERE to learn more about our practice involving corporations and limited liability companies.

Click HERE to learn more about our nonprofit organizations practice.

Employer Update: Michigan’s NEW Mask Rule – Does it Affect My Business?

On Friday July 10, Governor Whitmer tightened prior rules for wearing of masks, or “face covers.” In summary, the Order requires customers who enter any “indoor public space” of a business to wear a mask, and obligates all businesses that make such “indoor public space” available to require their customers to wear masks. However, the key term, “indoor public space” is not defined in the Order or prior orders. Previously announced minor exceptions for mask use, such as removing coverings while seated in a restaurant, or exempting persons who cannot medically tolerate wearing a mask, are continued. EO 2020-147 applies state-wide, including Regions 6 and 8, the Traverse City area and the Upper Peninsula.

The Provisions of the Executive Order

Section 1 of EO 2020-147 applies to all persons moving in public – outside of their home or residence — within Michigan. The rule states:

“1. Any individual who leaves their home or place of residence must wear a face covering over their nose and mouth:

a. When in any indoor public space.

b. When outdoors and unable to consistently maintain a distance of six feet or more from individuals who are not members of their household; and

c. When waiting for or riding on public transportation, while in a taxi or ridesharing vehicle, or when using a private car service as a means of hired transportation.”

Section 2 of 2020-147 establishes health, age, and business service exceptions to the rule set out in Section 1.

Section 3 of 2020-147 applies to every business in Michigan that is “open to the public,” and makes those businesses responsible to require mask use by visiting customers. Section 3 provides:

“3. To protect workers, shoppers, and the community, no business that is open to the public may provide service to a customer or allow a customer to enter its premises, unless the customer is wearing a face covering as required by this order.”

Interpretation and Application

As noted, the phrase “indoor public space” used in Section 1 does not appear to be defined. However, the Governor has spoken repeatedly and publicly about requiring mask use in retail and, especially, food establishment and bar settings. Also, Section 3 references “shoppers” and another provision of Section 3, not quoted in this Article, refers to liquor licensees. Considering the entire Order in the context of its issuance, it appears that EO 2020-147 is intended to apply to situations where public presence within the “indoor … premises” of the business is routine or, at least, reasonably anticipated.

Further, Executive Order 147 does not lessen any preexisting face covering requirements, for example, industry-specific rules for non-public operations involving manufacturing or, apparently, office work where no general public access is permitted for the purpose of operating the business.

Examples of businesses that must require mask use by customers present to receive otherwise permissible services include:

Food service establishments (currently limited by EO 2020-143 to those earning 30% or less of their gross receipts from alcoholic beverages);
Grocery, clothing, retail and other stores or similar establishments, including shopping mall common areas;
Publicly used common areas of otherwise private buildings, for example, commercial or apartment building lobbies, restroom areas; and,
Public or not-for-profit facilities.

Examples of businesses likely are responsible to require mask use include:

Offices or areas of offices where members of the public are present, for example, reception or conference rooms made available to customers in the course of the ordinary business of the enterprise.
Waiting rooms (health care facilities are subject to specific rules).

You can read the entire Executive Order here.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Using Forbearance Agreements to Protect Commercial Real Estate Lender Interests During COVID-19

While much attention has been paid to the struggles of businesses, such as restaurants and retail establishments, to survive the economic downturn wrought by the COVID-19 pandemic, those who lend to such businesses for the purchase of real estate are also dealing with the fallout.

Every real estate loan payment missed by a borrower puts lenders in a more precarious financial position. Even borrowers who remain current on their loan payment obligations may find themselves in default, as lower property valuations result in borrowers failing to meet debt yield, loan-to-value or similar financial covenants.

While the economy in Michigan and across the country is reopening in fits and starts, it’s by no means “business as usual.” Economic woes are likely to continue, which means that lenders will be forced to deal with more financially distressed borrowers. In some instances, this means the possibility of foreclosure. In others, this means dealing with debtors in bankruptcy, as evidenced by a recent surge in bankruptcy filings. According to data from Epiq Systems, commercial Chapter 11 filings were up 48% in May as compared to May 2019.

However, more often, loan defaults by borrowers, and the possibility of future defaults due to financial distress, are dealt with outside of foreclosure or bankruptcy. In many cases, a lender is better off working out a deal that keeps a debtor in the property and running its business, so that it can work through the distress and remain solvent. The potential for recovery via foreclosure or bankruptcy is often limited—not to mention the costs associated with such processes are often steep, and with widespread court closures, any judicial action may be curtailed.

One of the primary tools lenders can use to accommodate distressed borrowers, while preserving their own rights and remedies, is a forbearance agreement.

In a typical forbearance agreement, the borrower acknowledges that it has defaulted on its obligations, and the lender agrees that it will refrain from exercising its remedies for such defaults as long as the borrower performs or observes the new conditions set out in the forbearance agreement, and, by a certain date, cures the defaults. A lender who forbears from enforcing remedies does not waive defaults, but rather grants a borrower time to work through its issues.

A forbearance agreement is best suited for situations where the lender has assessed that the borrower’s struggles are short term and will improve. Given that conditions for many borrowers will improve as the economy reopens, forbearance agreements will likely be widely used by lenders in the coming months.

While every forbearance agreement is customized to address a specific scenario, most contain common provisions, including:

Forbearance Period: The forbearance period is the period within which the lender will agree to forbear from exercising its default remedies under the loan agreement. The forbearance period typically lasts for a specified period of time (e.g., 120 days), subject to early termination by the lender if the borrower defaults in its obligations under the forbearance agreement.
Borrower Acknowledgements, Reaffirmations, and Waivers: Borrowers are commonly required to acknowledge and affirm key terms, representations and warranties from the existing loan agreement in the forbearance agreement. These may include waiving defenses, acknowledging amounts due under the loan, and affirming the validity of the lender’s lien, among other things. Lenders also typically condition their agreement to forbear on the borrower waiving claims against the lender based on the loan documents and dealings between the parties taking place prior to the execution of the forbearance agreement in order to avoid lender liability claims.
Agreements as to the Financial Terms of the Forbearance: A forbearance agreement will address financial terms, such as the interest rate the borrower will pay during the forbearance period, which may be different from the original interest rate under the loan documents. Additional terms may include the amount of any forbearance fee payable by the borrower, a reduction to the lender’s commitment to extend additional credit, reduction of overadvance or overformula balances, and any deferral or modification to the debt service payment schedule.
Additional Reporting: During the forbearance period, a lender may request reporting information in addition to what is required by the existing loan agreement. Such information may include the borrower’s cash flow status and expenses, weekly business updates from the borrower, and access to the property for inspection.

A forbearance agreement can benefit both a borrower and lender. A borrower is given time to work out its business issues or attempt to sell or refinance the property, and a lender can shore up its position by addressing deficiencies in the original loan documents and negotiating more favorable terms as described above, and hopefully avoid having to exercise foreclosure or other default remedies under the loan agreement. For some borrowers, foreclosure and/or bankruptcy may be inevitable. But commercial real estate lenders are often well-served by pursuing a forbearance agreement in order to better align the interests of lender and borrower during the borrower’s recovery period.

If you have any questions about forbearance agreements, or real estate workout issues in general, please contact Douglas J. Austin at 517.377.0838 or at daustin@fraserlawfirm.com.

Fraser Trebilcock attorney Douglas J. Austin has been at the center of real estate law for over 45 years. In addition to being a shareholder at Fraser Trebilcock, Doug is also the chair of our Real Estate Law department. He can be contacted at 517.377.0838 or at daustin@fraserlawfirm.com.

As Chapter 11 Bankruptcy Filings Surge, Here’s What Creditors Need to Know to Protect and Enforce Their Rights

The National Bureau of Economic Research recently announced that the U.S. economy officially entered a recession in February, 2020, one month before COVID-19 shut down much of the economy. It should come as no surprise, therefore, that the economic downturn has led to a surge in corporate bankruptcy filings. According to data from Epiq Global, 722 companies sought bankruptcy protection around the U.S. last month, a 48-percent increase from the year-ago period. From Hertz to J.C. Penny, more businesses are seeking refuge to restructure their debts.

As chapter 11 bankruptcies continue to increase (many analysts are forecasting the “wave” of filings to grow), more businesses and individuals will be impacted by the fallout. Creditors of a bankrupt company must be aware of the various deadlines and procedures that govern the chapter 11 process in order to protect and enforce their rights. For creditors to maximize their recoveries, they must stay informed and take action during a bankruptcy proceeding.

Whenever a business or individual receives a notice from a United States Bankruptcy Court indicating that a business they have had dealings with has filed a chapter 11 bankruptcy petition, the clock starts ticking, and they should be aware of the following timeline, and key events and milestones that may affect their rights.

The Petition Date

The petition date is the date on which a debtor files a chapter 11 bankruptcy proceeding. The debtor is required to serve all known creditors with notice of the commencement of the chapter 11 case. An “automatic stay” is imposed as of the petition date, which prevents creditors from taking any further action, such as pursuing collection activity, related to a pre-petition debt.

To remain informed throughout a bankruptcy proceeding, a creditor may request to receive notice of all pleadings filed in a case pursuant to Federal Rule of Bankruptcy Procedure 2002. In addition, creditors have an opportunity to obtain information about a case and the debtor’s finances by attending the “Section 341” meeting of creditors that takes place shortly after a case is filed.

“First Day” Motions

In most chapter 11 cases, the debtor files a series of “first day” motions with the bankruptcy court seeking relief that it may not otherwise be automatically entitled to receive under the Bankruptcy Code. Such relief may include a request to pay some unsecured creditors (such as employees or “critical vendors”) ahead of others. Because debtors require sufficient cash to operate their businesses and pay for the administrative expenses of the chapter 11 process, many seek interim court approval for financing (called “debor-in-possession” or “DIP” financing) and/or the use cash collateral that is subject to a secured creditor’s lien. In some cases, the debtor’s pre-petition lender becomes the DIP lender, and in other cases a new lender, or syndicate of lenders, steps in and tries to “prime,” or supersede, an existing lender’s lien to the extent of DIP financing extended to the debtor.

It is important for creditors and their advisors to carefully review “first day” motions in order to know how their rights may be affected, and take action as appropriate. For example, while the Bankruptcy Code allows for a DIP loan to prime the lien of an existing secured creditor, the secured creditor must receive “adequate protection” that its position will not be diminished as a result of the use of cash collateral or new financing. A creditor may need to file an objection to requested first-day relief to protect its rights.

Proof-of-Claim Bar Date

In order to participate in the distribution of the debtor’s assets to satisfy pre-petition claims, a creditor must have a valid claim. After filing for bankruptcy, a debtor is required to file a schedule of assets and liabilities, which is supposed to include all claims against the debtor. If a creditor agrees with the debtor as to the amount listed for its claim in the debtor’s schedules, and the claim is not listed as contingent, unliquidated or disputed, then the creditor does not need to file a proof of claim. However, if a creditor disagrees with how its claim is scheduled, then it must file a proof of claim in order to preserve its rights.

The bankruptcy court will enter a bar date setting a deadline by which claims must be filed, and the debtor will mail notice of the bar date, as well as other details of the claims filing process, to creditors. To the extent a creditor fails to file its claim by the bar date, it may be objected to and disallowed as untimely. Your attorney can help you through the process of understanding the deadlines associated with filing your claim, as well as supporting your claim with sufficient evidence to prove what you are owed.

Debtor’s Post-Petition Obligations

In chapter 11, a business keeps running with the goal of reorganizing, which means that expenses continue to accrue after it files for bankruptcy. A debtor is required to pay all post-petition expenses in the normal course of business. Unlike pre-petition debts, post-petition debts are not subject to the automatic stay—the debtor is required to pay such debts and creditors can and should take action with the bankruptcy court to ensure they get paid.

Post-petition debts are given priority as “administrative claims,” which are actual, necessary costs and expenses of preserving the estate. Accordingly, a creditor that is, for example, supplying goods (post-bankruptcy) to a debtor under a supply agreement is entitled to be paid for those goods as an administrative claim, and can petition the bankruptcy court to order payment to the extent it is being wrongfully withheld. Those who deliver goods to the debtor within 20 days of the petition date are also entitled to an administrative expense claim. While neither the Bankruptcy Code nor Bankruptcy Rules establish a specific date by which a party must file a motion for allowance of an administrative expense claim, such deadlines are typically set by local rule and/or in a scheduling order entered by the bankruptcy court.

Conversely, a creditor must also perform its post-petition obligations to a debtor. A creditor who refuses to perform its obligations under a valid contract due to a debtor’s failure to pay for goods or services pre-petition can be compelled to perform post-petition.

Executory Contracts

Debtors are authorized to assume or reject executory contracts in chapter 11. An executory contract, while not defined under the Bankruptcy Code, generally is one in which both parties have performance obligations remaining under the contract. Unlike in chapter 7 bankruptcy, there is no specific deadline for chapter 11 debtor to assume or reject an executory contract. If a debtor decides to reject a contract, the contract is treated as breached and a creditor has an unsecured claim for damages. If a contract is assumed, meaning the debtor wants to keep the contract in place, any defaults under the contract, including pre-petition defaults, must be cured. A debtor must obtain bankruptcy court approval to assume or reject an executory contract, either by motion or through the plan confirmation process.

Unexpired Leases

While non-residential real property leases are executory contracts, they are treated a bit differently than other contracts. A debtor must take action to assume or reject a lease within 120 days of the petition, with an option to seek one 90-day extension for cause. In addition, to the extent a lease is rejected, damages, which constitute an unsecured claim, are capped at the greater of (1) one year’s rent or (2) the rent for 15 percent, not to exceed three years, of the remaining term of the lease.

Plan Confirmation Issues

Most unsecured creditors won’t have their pre-petition claims paid until after a debtor’s plan of reorganization is submitted to and approved by the bankruptcy court. A debtor has a 120-day period during which it has an exclusive right to file a plan. The exclusivity period may be extended or reduced by the court, but in no case can the exclusivity period be longer than 18 months. After the exclusivity period has expired, a creditor may file a competing plan.

A plan must be proposed alongside a disclosure statement, which is meant to flesh out all of the important details that interested parties should know to make an informed decision regarding the plan. Unsecured creditors whose rights are “impaired” are entitled to vote on a plan, as well as object to it. Deadlines for (i) requesting the debtor include certain information in a disclosure statement, (ii) filing a combined plan of reorganization and disclosure statement, (iii) returning voting ballots on the plan, (iv) filing objections to the approval of the disclosure statement, and (v) objections to confirmation of the plan of reorganization are set by the bankruptcy court in accordance with the Bankruptcy Code, Bankruptcy Rules, and local rules.

Know Your Obligations, Rights, and Remedies

Chapter 11 bankruptcy is a complex process. Unfortunately, due to the economic downturn, more creditors are going to be mired in the complexity of monitoring cases moving forward. In most cases, especially those when significant sums of money are at stake, it’s important to consult with legal counsel in order to understand your obligations, rights, and remedies with respect to a chapter 11 debtor. Keep in mind that there are steps creditors can take to protect themselves in advance in the event of a customer’s bankruptcy.

If you have questions about the process, or require the assistance of legal counsel to help protect your rights, please contact an attorney at Fraser Trebilcock.

Fraser Trebilcock Attorney Amanda S. Wolanin specializes her practice in business and tax law, bankruptcy, family law, estate planning, litigation, and real estate law. You can reach her at (517) 377-0897, or at awolanin@fraserlawfirm.com.