Jumpstart Our Business Startups Act

Posted on May 8, 2012 by

On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (JOBS Act) into law.  One of the most far-reaching securities laws in recent years, the objective of the JOBS Act is to ease the regulatory burden on, and encourage raising capital and funding for, emerging and mid-market growth companies.

Emerging growth companies (EGCs), a new category of issuers, benefit from reduced disclosure, compliance and governance requirements during the IPO process and for up to five years after the IPO.

Other important aspects of the JOBS Act include:  removal of a ban on general solicitation and advertising for Rule 506 and Rule 144A offerings; crowdfunding exemptions (i.e., Kickstarter.com); an increase in the exemption for Regulation A offerings from $5 million to $50 million; and a higher threshold for Exchange Act registration.

Especially notable for small business owners and entrepreneurs, the “crowdfunding” provisions allow for the ability to solicit the general public for investment – an activity that was previously illegal.  Non-accredited investors will be able to go online and invest in small businesses and entrepreneurs, subject to certain limitations.  The goal of this provision is to provide for increased transparency into small businesses and startups, which could ultimately result in more startups, employment, and business and technological innovation in the United States.  The JOBS Act is not without risk, however, as the officers of companies that take crowdfunding are exposed to personal liability and can be sued for their personal assets.

The United States Securities and Exchange Commission (SEC) has 270 days from the date that the JOBS Act was passed to implement additional regulations.

For additional information, please contact Kyle D. Wuepper at wuepper@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Business and Corporate Law

Waiting Period for Divorce Shortened

Posted on May 3, 2012 by

Family law clients often ask how quickly their divorces can be finalized. In Oregon, parties seeking a divorce have generally had to wait for 90 days after filing for a final trial or hearing on the merits of a dissolution of marriage proceeding. In 2011, however, the Oregon Legislature approved House Bill 2686, which makes dissolution proceedings subject to the same 30-day period as any other civil case.

As a practical matter, budget reductions to Oregon’s court system make it unlikely that divorce cases will be resolved in a month’s time, especially when there are contested issues such as child custody, support, and property division that must be resolved.

For additional information, please contact Melinda Thomas at thomas@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Family Law

Charitable Giving: Common Questions

Posted on April 10, 2012 by

Here are answers to some common questions that we regularly receive about charitable giving:

Question:  What tax advantages are available when giving to a charity?

a) There is a charitable deduction from the estate tax, so every dollar given to charity upon your death reduces the size of your estate and avoids estate taxes on the dollars given away.

b) If done while you are alive, you will receive an income tax deduction in the year that the gift is given, and to the extent the deduction cannot be fully utilized, it can be carried forward for up to five years.  Lifetime charitable giving also reduces the size of your estate, so will accomplish the same estate tax objectives as charitable giving at death.

Question:  Should I give to a charity while alive or only at my death?

Lifetime giving can be very rewarding because you are able to see the benefits of the gift while you are alive.  Also, if you have a history of being involved in a charity while you are alive, the charity will be aware of your particular charitable inclinations and you can better direct where the funds should be used by the charity.  It is more difficult for the charity to make those decisions if a gift is left at death and the charity has no history with the person donating.  However, lifetime gifts are not always financially possible for all donors.  You should consider a lifetime gifting plan only if you have sufficient assets to support yourself for the remainder of your life.  Therefore, it is beneficial to review you financial situation with a trusted advisor before making significant lifetime gifts.

Question:  What are some of the common techniques to give to a charity?

There are a variety of ways to make a charitable gift.  The most common forms of charitable giving are:

a) direct gifts such as gifts of stock, cash, or real estate to a charity.

b) lifetime gifts that reserve a benefit to the donor.  These include gift annuities and charitable remainder trusts where the donor receives an income stream after the gift is made.

c) gifts of a qualified plan such as an IRA or 401(k) account.  These accounts hold pretax money so if left to a family member upon your death, the family member will be obligated to pay income tax on the amounts withdrawn from the account.  In addition, the entire account is included as part of your estate for estate tax purposes.  Therefore, if your estate is large enough to be subject to federal and state estate tax upon your death, the person receiving these qualified plan accounts may end up paying up to 94% of the account to the state or federal government as either estate tax or income tax (this is the combined federal and Oregon estate tax and income tax rates as follows: estate tax, 35% federal and 15% state; income tax, 35% federal and 9% state).  If given to a charity, the account passes to the charity free of income tax.  In addition, it will qualify for the charitable deduction for the estate tax.  So, the tax that would be due if these accounts are left to a family member could be avoided if left to a charity.

d) through a private foundation or donor advised funds.  These are gifts made through a fund or foundation established by the donor.  The donor then makes annual or testamentary gifts through this organization.  This is a good way to involve children and grandchildren in the donation process to help instill a culture of charitable giving within the family.

For additional information, please contact John Sorlie at sorlie@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Estate Planning and Probate

State Loan Refinancing Pilot Program for Deschutes County Homeowners

Posted on February 27, 2012 by

The Federal Government’s TARP program has provided the State of Oregon almost $100 million to fund the Hardest Hit Fund which is intended to assist homeowners and avoid foreclosures. The Oregon Housing and Community Services agency administers the Hardest Hit Fund programs.

Homeowners in Deschutes County (and Jackson County) may be eligible for “loan refinancing” assistance. One of the five main Hardest Hit Fund programs is a new pilot project targeting Deschutes County and Jackson County homeowners whose property values have dropped significantly. The Loan Refinancing Assistance Pilot Program provides resources to those in need, on a competitive basis, through Further Development LLC, an organization that will buy the homes or mortgages from various banks and lenders at the current market value and then renegotiate those loans and refinance with the homeowners. The end result is keeping the family in their home.

The Oregon Housing and Community Services Agency can be reached at (503) 986-2000. Program eligibility requirements can be found here: http://www.furtherdev.com/PDFs/OHCS_Short_Sale_Program_Overview.pdf

For additional information, please contact Mark G. Reinecke at reinecke@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Real Estate

Protecting the Rights of the Elderly

Posted on January 27, 2012 by

I am often asked how to protect the rights of elderly persons in Oregon. In addition to having the same rights as other people, Oregon law provides that elderly persons have some additional protections.

All people have the right to be protected against fraud. Unfortunately, the elderly are often victimized by those who are most trusted. It can be difficult to prove that someone has taken advantage of an elderly person especially when the person claims that they were following the wishes of the elderly person. Oregon law allows elderly victims or their representatives to obtain restraining orders to protect them from physical, mental and sexual abuse, exploitation, theft, neglect and abandonment. The Elderly Persons and Persons with Disabilities Abuse Prevention Act can be used to protect the victim from further abuse if the person has been subject to abuse in the last 180 days and if they are in immediate and present danger of further abuse. An elderly person or their representative can also sue the perpetrator for physical or financial abuse and receive a money award for the harm that was suffered.

1) Physical abuse is the use of force to threaten or injure; 2) Emotional abuse is verbal attacks, threats, rejection, isolation, or belittling acts that cause pain or distress; 3) Sexual abuse is sexual contact that is forced, tricked, threatened or otherwise coerced upon a vulnerable adult, including anyone who is unable to give consent; 4) Exploitation includes theft, fraud, misuse or neglect of authority, and use of undue influence as leverage to gain control over an older person’s money or property; 5) Neglect is a caregiver’s failure or refusal to provide for safety, physical or emotional needs; and 6) Abandonment is desertion by anyone with a duty of care.

Public officials and certain private individuals have a duty to report suspected abuse of a person over the age of 65 years old to the Department of Human Services or to a local law enforcement agency. However, any person may report suspected abuse.

Many people are not aware that elderly persons in Oregon have a Resident’s Bill of Rights which protects residents of most types of care facilities. The Resident’s Bill of Rights requires care providers to inform residents of all rights, services and treatment available to them. The care facility must provide residents with appropriate medical treatment and not transferred them within or terminate them from the facility except with proper notice and cause. The Resident’s Bill of Rights provides that residents have the right to be free from abuse, harassment and retaliation. If a resident is having difficulty enforcing their rights they should contact the Oregon Ombudsman’s office at 800-522-2602 or 503-378-6533 for assistance. They have volunteers available to respond to problems in Central Oregon.

Elderly persons are often victims of fraud or scams including telemarketing scams that trick an elderly person into sending money to a third party for a variety of reasons including paying for a product, winning a contest or helping someone in need. Some scams include contact by a person who promises to recover their losses from previous scams. An elder abuse restraining order can be obtained to protect against further harm from these scams. However, once a person’s money has been taken it is often difficult to retrieve it.

The best way to protect against abuse if you are elderly, or if you care about some who is elderly, is to ensure that there is a trustworthy person involved. The elderly person should have their estate planning documents prepared including power of attorney, advance directive and will or revocable living trust. Be wary of anyone who suggests that the elderly person should make significant changes to the beneficiaries of their assets. Having an estate plan in place with a lawyer who knows the elderly person may prevent a third party from exercising undue influence because the attorney can discuss the elderly person’s decisions with them before any change is made to their estate plan. In certain situations a guardian or a conservator is necessary to protect an elderly person from risk of abuse if that person is no longer capable of making their own decisions.

The final point in protecting the rights of the elderly is not to wait too long. Often elderly persons do not ask for assistance and children or other persons in their lives do not interfere for fear of upsetting them. However, if the elderly person in your life is acting out of their normal pattern, do some investigation to ensure that that person and their assets are safe and well protected.

For additional information, please contact Melissa Lande at lande@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Elder Law, Estate Planning and Probate

Oregon authorizes use of Transfer on Death Deeds

Posted on December 5, 2011 by

The Oregon Legislature recently passed a new law that allows an owner of real property to name a person to receive the property upon the owner’s death by signing a Transfer on Death Deed. The deed only becomes effective to transfer the property at the owner’s death, so the owner will continue to own the property during the owner’s life.  During the owner’s lifetime, the owner can change the beneficiary or revoke the deed.  The owner remains able to sell the property, in which event the Transfer on Death Deed would automatically be revoked as to the property that was sold.  For the deed to be effective, it must be designated as a Transfer on Death Deed, it must identify a beneficiary by name, and it must be recorded in the deed records of the County Clerk in the County where the property is located before the owner’s death.

Use of a Transfer on Death Deed provides a simple and inexpensive way for property to be transferred to a beneficiary after death without the need for more expensive alternatives such as probate or through a revocable trust.  Before using this type of deed, however, you should consider the following.  First, it may be difficult for a person receiving the property to sell it within 18 months of the owner’s death.  The new law allows an 18 month period for interested parties to commence a court proceeding to: (a) contest the capacity of the transferor; or (b) determine whether a transfer on death deed or an instrument revoking a transfer on death deed is void because it was procured by fraud, duress or undue influence. During this 18 month window it may be difficult to obtain title insurance from a title company, and therefore difficult to sell the property during that period.  Second, any encumbrance against the property, such as a mortgage, will continue to be an encumbrance after the owner’s death, so the transferee must continue to pay the mortgage, or risk the loss of the property through foreclosure.

If you intend to use a Transfer on Death Deed, you should be careful to use the correct form of deed.  Many states have similar statutes, but use of a deed which is effective in another state may not be effective in Oregon.  Also, the deed must be recorded in the county where the property is located before your death.  It is not sufficient to sign the deed and then file it away in a desk for someone to find after you die.  It must be recorded.

If you have any questions about the Transfer on Death Deed or need help preparing one, please contact John Sorlie at sorlie@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Estate Planning and Probate, Real Estate | Tagged , , , , , , ,

Residential Eviction Notices Must Include Specific Date and Time of Termination of Tenancy

Posted on November 1, 2011 by

The Oregon Court of Appeals recently issued a ruling that residential eviction notices must specify the date and time of the termination of the tenancy.  In Greenway v. Parlanti, 245 Or. App. 144, 261 P.3d 69 (2011), the landlord provided tenant with a 24-hour eviction notice after receiving threats of violence from the tenant’s son.  The notice indicated that the tenancy would end 24 hours from the time of personal service of the notice on the tenant.  The time the notice was served was included with the served notice.  After the trial court judge found in favor of the landlord, the Oregon Court of Appeals reversed finding that the applicable statute (ORS 90.396(1)) requires that the specific date and time of the termination of the tenancy be included in the notice.  Rather than “24 hours from the time listed below,” the landlord needed to specifically identify the termination time on the following day.  The court also reasoned that because service of eviction notices can be made in a number of ways, including mailing, ruling otherwise would, in certain circumstances, force the tenant to guess when the termination became effective.  To avoid uncertainty when serving residential eviction notices, landlords can identify a specific time and date that provides more notice than is required.  For example, a 72-hour residential eviction notice served at 9am on Tuesday, November 1, 2011 could indicate a termination date and time of 12:00 pm (noon) on Friday, November 4, 2011, despite that the termination time could be a little earlier that day.

For additional information, please contact Mark G. Reinecke at reinecke@bljlawyers.com.

“This advisory is published by Bryant, Lovlien & Jarvis, PC to provide a summary of significant developments to our clients and the community. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.”

Posted in Real Estate | Tagged , , , ,