Simon Law Group

Thursday, February 7, 2019

Things Remembered Files for Chapter 11 Bankruptcy Protection

53 –year old gift engraver and retailer, Things Remembered Inc., filed on Wednesday for Chapter 11 bankruptcy protection in the District of Delaware docket #19-10234. The chain operates more than 400 locations, nationally, and expects to close about 250 stores in its initial efforts to reorganize under the Bankruptcy Code.

Enesco, the giftware and home and garden décor company, is the stalking horse bidder to take approximately 130 of Things Remembered leases in the bankruptcy case with court approval. The stalking horse bid is $17.3 million.

This filing comes of the heels of the Charlotte Russe Holding, Inc. (“Charlotte Russe”) Chapter 11 bankruptcy filing also in Delaware docket #19-10234, earlier this week.

As more chains try to navigate the new world of omnichannel that encompasses online, direct mail, and B2B retail business, and brick and mortar stores, Chapter 11 filings are rising to address issues in one forum.

If you have a Charlotte Russe and Peek Children’s lease in your center, Stark & Stark’s Shopping Center & Retail Development Group can help.

Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Delaware, District of Minnesota and the Western and Eastern Districts of Pennsylvania regarding a variety of issues.

Our Group has been counsel to landlords and trade creditors in the Mattress Firm, Toys “R” Us, Payless, Eastern Outfitters (EMS Part 2), EMS, Golfsmith, RadioShack, General Wireless (RadioShack 2), Gander Mountain, A&P, Joyce Leslie, rue21, Central Grocers and Sports Authority chapter 11 bankruptcy cases.

For more information on how Stark & Stark can assist you, please contact Thomas Onder, Shareholder, at (609)219-7458 or tonder@stark-stark.com or Joseph Lemkinat (609)791-7022 or jlemkin@stark-stark.com.

from New Jersey Law Blog http://bit.ly/2Diunvb
via IFTTT

Interested Parties in Probate Litigation

During a Will contest, a question may rise as to who is an interested party with regard to an estate. This question is not quite as simple as it may appear at first sight. In fact, the interested parties may be substantially greater than the party initiating the Will contest might have anticipated. As discussed below, interested parties are not merely those who are listed under the Last Will and Testament.

In general, all of the Decedent’s family members are either interested parties or actual parties during a Will contest whether they are named as beneficiaries under the Last Will and Testament or not. As such, all surviving family members are potentially interested parties. In addition to these parties, all parties who are listed under the current Last Will and Testament, which has been offered for probate, are also interested parties to the litigation.

This group is easy to define as they are listed in the Will that is being challenged, and thus, are directly interested parties. In addition to the parties listed under the Last Will and Testament which has been offered for probate, if a previous Will exists than the individuals listed under the previous Will could also be interested parties who would have standing to participate in the litigation. As such, when initiating a Will contest, the Petitioner must determine who the interested parties are under any previous Last Will and Testament aside from family members, as they may also be interested parties.

It is important in the context of Probate litigation that the person contesting a Will, as well as the person defending a Will, determine who the interested parties are. This is because these parties have to be placed on notice and given an opportunity to participate in the litigation should they choose to do so.

The probate litigation attorneys at Stark & Stark are well versed in determining who are the potentially interested parties are, and whether they should be added as parties to the litigation.

from New Jersey Law Blog http://bit.ly/2BoFR01
via IFTTT

Tuesday, February 5, 2019

Charlotte Russe Files for Chapter 11 Bankruptcy Protection

Charlotte Russe Holding, Inc. (“Charlotte Russe”), the women’s fashion retailer filed for Chapter 11 bankruptcy protection in the District of Delaware docket #19-10201. The chain operates more than 500 locations, nationally, and is closing about 90 stores in its initial efforts to reorganize under the Bankruptcy Code.

CNN reports that it secured $50 million for initial bankruptcy funding to continue running about 400 Charlotte Russe and Peek Children’s stores for the next few months.

Court pleadings cite that the company plans to liquidate, if it cannot find a buyer by February 17, 2019.

The filing comes on the heels of last year’s falling sales – $928 million in 2017 to $795 million in 2018.

If you have a Charlotte Russe and Peek Children’s lease in your center, Stark & Stark’s Shopping Center & Retail Development Group can help.

from New Jersey Law Blog http://bit.ly/2UGwfVC
via IFTTT

What Income is Used to Determine Alimony & Child Support in New Jersey?

The fairness of the calculation of alimony and child support depends on the accuracy of both party’s respective incomes. Both alimony and child support are calculated using each party’s gross income.

Gross income may include income from the following sources:

compensation for services, including: wages, fees, tips, and commissions;
the operation of a business minus ordinary and necessary operating expenses;
gains derived from dealings in property;
interest and dividends;
rents (minus ordinary and necessary expenses);
bonuses and royalties;
alimony and separate maintenance payments received from the current or past relationships;
annuities or an interest in a trust;
life insurance and endowment contracts;
distributions from government and private retirement plans including Social Security, Veteran’s Administration, Railroad Retirement Board, deferred compensation, Keoughs and IRA’s;
personal injury awards or other civil lawsuits;
interest in a decedent’s estate or a trust;
disability grants or payments (including Social Security disability);
profit sharing plans;
worker’s compensation;
unemployment compensation benefits;
overtime, part-time and severance pay;
net gambling winnings;
the sale of investments (net capital gain) or earnings from investments;
income tax credits or rebates (excluding the federal and state Earned Income Credit and the N.J. homestead rebate);
unreported cash payments (if identifiable);
the value of in-kind benefits; and
imputed income.

Since both parties’ gross incomes are used to calculate alimony and child support, the first thing an attorney will do is determine what income to use for each party in the calculations. In some cases, the parties’ gross incomes can be easily determined, such as where both parties earn predictable salaries as W-2 wage earners.

However, the appropriate income to use for either or both parties may also be more complicated, especially when one spouse does not earn an income or in cases that involve incomes that fluctuate from year to year, which usually involve business owners or when one party receives either discretionary bonuses or fluctuating commissions.

In cases where a Court finds that either party is voluntarily unemployed or underemployed, the Court will usually impute income to that party based on their work history, earning capacity, educational background, etc. A Court may look to that party’s previous income, the average earnings for that occupation as reported by the New Jersey Department of Labor, or based on full-time employment at forty (40) hours per week at the New Jersey minimum wage.

In cases where a party’s income fluctuates from year to year, our Courts will generally include all sources of income for each party, including bonuses and commissions, and average that party’s income over a period of three (3) to five (5) years to determine the income for that party for purposes of calculating alimony and child support.

Although our Courts will usually average a party’s income if one or both parties’ income fluctuates, attorneys have the ability to be creative where our Courts do not. Typically, the payor spouse objects to calculating child support and/or alimony utilizing an income averaging approach, since their support obligations will be based on incomes, which may include discretionary bonuses or unpredictable commissions that they may not receive.

One common way attorneys are able to resolve a situation where one party’s income fluctuates is to negotiate a base child support or alimony figure on each party’s base salaries alone. Additionally, there is an additional Supplemental child support and/or alimony figure, which is usually a percentage of the payor’s bonus/commissions.

In any event, if you anticipate a divorce and will need either child support or alimony calculated, it is imperative that you consult with an experienced family law attorney.

from New Jersey Law Blog http://bit.ly/2S94Zm1
via IFTTT

Important Considerations for Leasing Cannabis Related Facilities

For any lease, there are always numerous potential concerns and pitfalls. However, when dealing with a cannabis lease, landlords must flesh out one significant concern that does not exist with traditional leases. This concern stems from the illegality of cannabis at the Federal level.

Typically, a landlord has already entered into many business relationships and documents pertaining to its property, years before contemplating leasing to a cannabis facility. The landlord has likely executed financing and insurance documents, which may be jeopardized by a cannabis lease. As discussed below, a landlord may inadvertently breach provisions in those documents by executing a lease for a cannabis facility.

The loan documents were probably executed well before it was ever envisioned that marijuana (whether medicinal or recreational) would be legal under various states’ laws. Those documents may very well contain a provision noting that the landlord/borrower will not use the property in connection with any illegal activity. As the cultivation and use of marijuana is illegal under Federal law, the mortgagee has an argument that leasing to a cannabis facility automatically breaches the loan documents.

Another possible concern relates to insurance policies. The landlord will generally hold various types of insurance policies related to property damage and liability. Those policies very likely have language excluding or limiting coverage for illegal or non-permitted activities. Therefore, those policies should be thoroughly reviewed and modified through endorsement to ensure full and adequate coverage.

It may also be the case that a landlord has existing leases on the property with other tenants containing certain restrictions or exclusives. Perhaps an existing tenant has a provision in its lease in which the landlord agreed that no illegal activity would be conducted on the property. Again, technically, the activity of having a cannabis facility is illegal under federal law and may give the other tenant the right to rescind or terminate its lease.

Everyone involved in the transaction should thoroughly consider the aforementioned issues before entering into a lease for a cannabis facility. The tenant needs to be aware that it may be required to sign a lease with the landlord in which the tenant remains responsible for any additional costs and liability incurred by the landlord as a result of the cannabis lease.

This is why both cannabis tenants and landlords should have the counsel of an experienced cannabis real estate attorney who can devise and recommend creative and balanced solutions for the legal issues and implications of entering into a cannabis lease.

from New Jersey Law Blog http://bit.ly/2UKcvAB
via IFTTT

Tuesday, January 29, 2019

Ewing Township NJ Revaluation – Commercial, Retail, and Industrial Owners Beware

Ewing Township’s revaluation has been a long time coming and appears to be done. Property owners in Ewing Township will be receiving their new real estate tax assessment notices in the next few weeks and will have a small window to meet with the revaluation company to discuss the new tax assessment or file a tax appeal.

The 2019 tax assessments will ultimately be used to calculate your real estate tax liability for 2019. Since New Jersey has one of the highest tax burdens in the United States, commercial, retail and industrial property owners, and tenants under net leases who pay real estate taxes, need to be diligent and closely scrutinize and review their new tax assessments.

Preparation and screening are key to a successful tax assessment challenge. Property owners need to gather crucial information and meet with an experienced tax appeal lawyer or appraiser in a timely manner in order to complete a careful review of the facts necessary to screen the merits of an appeal.

What should an owner or tenant (who pays real estate taxes) of a commercial, retail, or industrial property do?

First, obtain copies of all leases and assemble accurate financial statements for the property. It is very important to have a detailed breakdown of income and expenses for several years to allow a proper analysis using the income approach to valuation. If the property is owner-occupied, detailed expense information is crucial.

Second, request a copy of your property record card from your tax assessor. A property record card will have key information regarding your property, including measurements of the size of the building. Sometimes, the property record card contains mistakes. You can often lower your tax assessment by pointing out any mistakes on the property record card.

Third, meet with an experienced lawyer or appraiser to help you estimate the value of your property so you can compare the new tax assessment to the fair market value of the property. For 2019 tax appeals, the valuation date is October 1, 2018 – what was your property’s value on this date?

Fourth, if you think the assessment is too high, schedule an appointment with the revaluation company to discuss a reduction. Please note that revaluation companies often provide owners with a short time period to meet.

Finally, if all else fails, file a tax appeal. Although the normal tax appeal deadline is April 1, 2019 for a 2019 tax appeal, the deadline will be extended in Ewing Township to May 1, 2019, because of the revaluation.

In the event you have any questions concerning a revaluation of real estate tax assessments, please do not hesitate to contact Stark & Stark’s tax appeal attorneys.

from New Jersey Law Blog http://bit.ly/2Wv9TYT
via IFTTT

Did You Know: New Gender Identity Laws Go into Effect Feb. 1st

In an environment of uncertainty for transgender individuals, New Jersey is on the forefront of creating laws which are aimed to support New Jersey’s transgender community. In July of 2018, Governor Phil Murphy signed a package of bills into law which make important changes to records of vital statistics which are effective February 1, 2019.

These laws now establish New Jersey as one of only 17 states that allow residents to change their gender on birth certificates and death records in order to conform to their gender identity without submission of proof of surgery. New Jersey is also one of only 4 states that now include a gender-neutral option on birth certificates.

NJ A1718: Babs Siperstein Law

A1718, designated as the “Babs Siperstein Law,” requires the state Registrar of Vital Statistics to issue an amended birth certificate, upon submission of request, to a person born in the state which bears the transgender person’s name and sex. This law was named after Babs Siperstein, who was the first elected transgender member of the Democratic National Committee in 2012.

Prior to this, an amended certificate of birth was only issued upon the receipt of a medical certificate from the applicant’s physician, indicating the person’s gender had been changed through sexual reassignment surgery.

Now, a transgender person will only need to complete and submit a form which affirms under penalty of perjury that the request for change in gender, including female, male, or undesignated/non-binary, is made for the purpose of conforming with that individual’s gender identity and not for any fraudulent purpose. This change represents perhaps one of the most significant changes in the law as it recognizes that gender identity is personal, not anatomical.

In addition to this, two other bills were signed into law.

NJ A1726

A1726 allows the person planning the funeral of a transgender person to request the death certificate reflect the person’s identity. Documentation of a gender transition can include, but is not limited to, “the decedent’s written instructions, including in an advance health care directive; a court order approving a name or gender change; proof of clinical treatment for gender transition; or the gender marker on a birth certificate, or a state- or federally issued identification card.”

NJ A1727

The third law is A1727, which establishes a transgender equality task force “to assess legal and societal barriers to equality” and recommend future laws to prevent discrimination moving forward. Noted areas of concern include housing, healthcare, education, employment, and criminal justice.

Kudos to the New Jersey Legislature and Governor Murphy for moving the Garden State forward.

from New Jersey Law Blog http://bit.ly/2G56FFX
via IFTTT