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When Is An LLC Needed

When Is An LLC Needed

When Is An LLC Needed

Want to Get your LLC Drafted?

When is an llc neededWe want to help you out on your business journey and explain to you when a corporate liability shield, like an LLC or corporation is needed or not.

As small business owners it can be extremely valuable to find guidance in what you should be doing for your business and when.

We are going over when you need to get a liability shield for your business.

There is no requirement that you create an LLC before you go into business, it can be a smart move and highly recommended sometimes but is not necessary to have your business running.

You can just start sending out invoices and creating value from your labor or sales of goods. Start helping people and charge appropriately.

Needing or not to create an LLC will depend on the type of business you own and its structure.

If you are wondering if you should have an LLC for your business and if the benefits will outweigh the cost and hassle of setting one up, this will definitely interest you:

 

Want to Get Your LLC Drafted?

What is an LLC

 

LLC stands for limited liability company. It’s a business structure that provides a business with limited liability. Although the structure is similar to corporations, the LLC is easier to establish and simpler to maintain.

The key aspect of LLCs is that it  provides protection to the LLC owners by limiting the owner’s personal liability

Meaning that debts owed by the business, and other claims, like liens and lawsuits, are limited to the assets of the business itself, and in no case to the owner’s.

Therefore the personal assets of the business owners, under most circumstances, are protected and cannot be pursued.

Be careful, that does not mean owners are protected from negligence or  illegal acts committed in the name of the LLC.

 

What would an LLC do for your business?

 

An LLC gives your business a legal identity on it own. It becomes a separate “person” in the eyes of the law and it can own money, have a bank account, make agreements, buy property, sue and be sued.

Not having an LLC means that you and your business aren’t legally separate, and everything you own is at risk if your business is facing liens lawsuits or others

 

Does My Business Need an LLC?

The first thing you should do to see if it is time to start an LLC is: examine your business. Ask yourself these questions:

 

  • Do you have partners?
  •  Do you have high risk transactions?
  • Do you sell food?
  • How about anything where you have locations that could be sites of slips and falls?

 

If you need to form an LLC yet or not will mostly depend on your liability and taxes.

when is an llc needed

Many businesses are sole proprietors, so they cannot have all the disputes that partnerships can. Therefore, they are less likely to need an LLC until we look at what they are doing and how much they are making.

 

How about your blog that you have monetized with advertisements and merch, or online courses.  Does that business need an LLC?  Not until they are making tens of thousands of dollars a year.

 

In that case the transactions are all at a low price point.  A few dollars for online ads and some sales of merchandise money. There is not much risk there. Someone is not going to have a slip and fall on your website. No one is going to get food poisoning from your online course. There is no liability benefit from splitting the cash flows away from the owner.

 

In this situation, it does not make sense to form an LLC until you get enough money each year to get hit on taxes so much that it makes more sense to become an s-corp so that you can work for yourself and get a paycheck from your own company and earn lower tax on the dividends. But that’s a tax question that can change over time.

 

What if you are the sole proprietor of a bar & restaurant? You need an LLC immediately. You have huge risks. Slip and falls, food poisoning, over serving a customer that gets in a car accident on the way home from your place. An LLC allows the owner to be a legally separate person than the cash flows.

 

How about an independent contractor that does home improvements? Then you want the liability shield because your job to redo a kitchen and bath could be 40 grand or more. You want that to be the company’s problem, not the owners. Large transactional liability is another reason to form the LLC. So if you are in enterprise sales, get an LLC.

 

Finally, partners complicate things far more. When you break up the ownership all sorts of things arise. How do partners exit the business; how do new people get into the business; what duties do the owners have to the business; and much more. Multiple owners of any business, as far as I’m concerned, always should have an LLC.

 

Want to Get Your LLC Drafted?

Key Points to consider when doubting to create or not an LLC

 

  • You need an LLC when you have premises liability, brick and mortar stores.
  • You need an LLC when you have transactional liability. Protect the big fat contract checks.
  • You need an LLC when the tax man says you earn too much as a sole proprietor so get an accountant.
  • You need an LLC when you have partners. Be smart, have an exit plan before you start with any partners.

 

How to Start an LLC 

Now that you know when you need an LLC – let’s talk about how to form one.  Make sure you you follow us for future content! 

Filing with the State

If you are a small business, it would probably make more sense to start your LLC in your home state.

But you should know that there are other states to fill your LLC that may be more favorable  due to beneficial tax laws and business infrastructures. 

If you serve a local demographic you should file in that state, but for cyber or internet type of business the location has no real importance and you could research the state regulations that fit your business model best.

Each State has its own process when it comes to filing the articles of organization for an LLC.

Most of them offer to file online making the process easier, otherwise, you’ll have to fill out the articles of organization by hand and send it to your Secretary of State’s Office.

 

Determining If You Want To Be Manager or Member Managed

There are two forms of management for an LLC, it can be managed by the members or managed by a manager:

manager-managed LLC: Creates a manager role separated from the ownership. The manager has the authority to decide on the day to day operations. But the owners have authority for higher level decisions.

Member-managed LLC: the owner or one of the owners is the manager and handles operations accordingly.

 

Getting a Registered Agent

A Registered Agent is a person that could be a member of the LLC, or a third-party who acts on behalf of the LLC to collect legal notices from the State or other. 

The registered agent needs a physical address in the State in which the company is registered. 

If you do decide to incorporate an LLC in a different state from where you live, you will need to find a Registered Agent that resides in the same state where you incorporated your business. 

 

Drafting an Operating Agreement 

Next step is to draft your LLC Operating Agreement which is intended to be kept for internal record-keeping. This is where the ownership percentage of the company is outlined. Here are a few important things you should include in your LLC Operating Agreement:

  • Names of all Members and all their signatures
  • Members’ Percentage Interests and Capital Contributions
  • Date of Annual Meetings

Once your LLC Operating Agreement is complete, each Member should have a copy.

 

Getting an FEIN Number

A FEIN is a Federal Tax Identification Number, also heard of as an Employer Identification Number (EIN), is issued to companies that do business in the United States. It iis a unique nine-digit ID number, like a security number but for companies. 

  • A FEIN is a way for government entities to identify and track businesses tax and financial activities.
  • A FEIN is required to file tax returns, and to set up accounts to offer benefits to employees

Not every small business needs a FEIN, but the following do:

  • Any business with employees.
  • Any business that operates as a corporation or a partnership.
  • Any business that pays employment, alcohol, tobacco or firearms tax returns.

You can apply for a FEIN

  • By phone.
  • By fax or mail:
  • On the IRS website

Even if your business is not required to have a FEIN, you may decide to get one. There is no charge, and you never know when your business circumstances change.

 

Thomas Howard

Thomas Howard

Real Estate Lawyer

Whether this is your first land use issue or most recent, our office has helped people and businesses alike.

Thomas Howard was on the ball and got things done. Easy to work with, communicates very well, and I would recommend him anytime.
R. Martindale

Need A Business Lawyer?

Call our law offices with your legal questions for help on:

  1. real estate contracts
  2. business contract disputes
  3. Shareholder litigation
  4. cannabis business
  5. fraud actions
  6. mechanic's liens

 

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    How To Stop Check Kiting Scams

    How To Stop Check Kiting Scams

    How To Stop Check Kiting Scams

    How To Stop Check Skitting ScamsCheck kiting is one of the many ways your financial securities can be violated.

     

    It constitutes a type of bank fraud very popular in the early 2000’s, that was in its majority shut down by a regulation called check 21 act. 

    Even though not as common as it used to be, check kiting is still present in many fraudulent transactions. Here we explain to you everything there is to know about this illegal procedure 

     

    Definition of Check Kiting

    Check kiting is the fraudulent procedure of deliberately issuing  a check for which there is not sufficient money to pay the stated amount.

    The scheme usually involves several checking accounts at different banks. In effect, a bank deposits accessible money into an account while waiting for cash to be processed from an account at another bank when in actuality the other account holds no money.

    Check kiting is always intentional. Those engaged in kiting have a detailed understanding of the bank’s timing, and will take advantage of it to withdraw cash just before the bank discovers that there is something wrong,  keeping ahead of the funds-clearing mechanism.

    Check kiting schemes have resulted in multi-million dollar losses.

    Elements to Check Kiting:

    • Having checking account A, and checking how to stop check skiting scamsaccount B from different banks,
    • Writing a check from checking account A, for which there is not sufficient cash in the payer’s account.
    • Deposit the fraudulent check in checking account B.
    • Withdraw the funds from checking account B.

     

    Examples of Suspicious Circumstances That could lead to check kiting

     

    This examples have been provided by regulatory agencies to help the identification of suspicious transactions that may indicate check kiting:

    •  Several accounts with similar names, owned or controlled by the same individual
    •  Regular or excessive drawings against uncollected funds
    •  Frequent daily negative ending balances or overdrafts
    •  Deposits of large checks drawn on nonlocal banks or foreign banks
    •  Frequent, large deposits drawn on the same institution
    • A large number of check deposits each day
    • A large proportion of cash in an account that has not yet cleared the paying bank
    • Deposits being made through multiple bank branches
    •  A low average daily balance in relation to deposit activity
    •  A low collected funds balance in relation to the book balance
    •  A volume of activity or large debits and credits inappropriate in relation to the nature of the business

    Is check kiting the same as playing the float.

     

    You may have heard of the expression playing the float, and don’t worry it’s not the same as check kiting.

    Float refers to the amount of time it takes for money to move from one account to another. Meaning, Playing the float is the process of writing a check with no bank balance covering it, expecting the fund to be in the bank when the check clears.

    In the past, it was easier to play the float, because the period of time between when a check was written by the payer and when the funds were transferred to the payee was longer. The Check 21 law had the practical effect of shortening that opportunity.

    There is a fine line between playing the float and actual check kiting. Check kiting is the illegal act of knowingly writing a check from a bank account without sufficient funds and depositing it into another bank account. While playing the float is taking advantage of the funds-clearing time period to have to receive the sufficient funds to cover the check.

    Check kiting is a fraud, playing the float is not. Playing the float doesn’t result in harsh penalties, while check kiting does.

     

    Check 21 Act

     

    Check 21 law, is a federal law to combat check kiting that became effective on October 28, 2004.

    The Check Clearing for the 21st Century Act, or Check 21, is designed to enable banks to handle more checks electronically, instead of moving the original paper checks from the bank where the checks are deposited to the bank that pays them, making check processing faster and waymore efficient.

    Check 21 act may seem like a very subtle and expected change, but its consequences are enormous.

    It meant that not only could banks exchange the images between themselves, customers could deposit an image instead of a paper check as well.

    Since its passing, the services have evolved exponentially, and the necessary computer hardware has improved and become less expensive and more available for all americans.

    More importantly, Check 21 has allowed us to receive and have access to our funds sooner.

     

    How to prevent Check Kiting

     

    The entity harmed by check kiting is mostly the bank that has allowed funds to be withdrawn from the new checking account without first waiting for funds to arrive.

    Banks fight  this by not allowing funds to be withdrawn from an account until a certain number of days have passed, by which time the lack of funds in the payer’s account will have been discovered.

    But any individual could be subject to check kiting, as well. Here are some tips to prevent becoming a victim of check kiting:

    1 . Only accept checks for the exact amount owed to you.

    • If a customer offers you a check for more than the amount they owe, then asks you to give them cash for the difference, and you accept and then the check is returned by the bank, you can become a participant in a check-kiting scheme unintentionally .
    • For online transactions a check kiter might send you payment, then inform you that they “accidentally” overpaid you. They’ll ask for you to pay the difference by wiring transfer or cash.

     

    2. Wait until the check clears to refund the overpayment.

    • If someone overpays you with a check and wants a refund, tell them that you’ll gladly do it after the check clears.
    • Refuse to pay any refund until the check no longer says “pending” in your bank account.

     

    3. Look into checks that clear your bank account out of sequence.

    • Checks out of sequence might indicate that someone has stolen a checkbook and is using your bank account for a check-kiting scheme.
    • Checks out of sequence could also indicate that someone has ordered checks on the account starting at a different number than the ones you’re currently using.

     

    4. Restrict access to company checks if you’re a business owner.

    •  A check kiter can use your company checks for its check-kiting scheme without your knowledge
    • Keep all blank checks in a locked safe with restricted access.

    How To Stop Check Skitting ScamsPenalties to Check kiting

    Penalties for check kiting always vary depending on the case, but millions of dollars cases can end with sentences of more than 10 years in prison and enormous  fines. Smaller or first-time infractions can result in harsh penalties.

     

    Thomas Howard

    Thomas Howard

    Real Estate Lawyer

    Whether this is your first land use issue or most recent, our office has helped people and businesses alike.

    Thomas Howard was on the ball and got things done. Easy to work with, communicates very well, and I would recommend him anytime.
    R. Martindale

    Need A Business Lawyer?

    Call our law offices with your legal questions for help on:

    1. real estate contracts
    2. business contract disputes
    3. Shareholder litigation
    4. cannabis business
    5. fraud actions
    6. mechanic's liens

     

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      Why Do You Need a Buy Sell Agreement Lawyer

      Why Do You Need a Buy Sell Agreement Lawyer

      Buy Sell Agreements

      Buy Sell Agreement Lawyer

      Why Do You Need a Buy Sell Agreement Lawyer?

      A buy-sell agreement is a legally binding contract between the owners of a business where they agree on what happens to a partner’s shares in the event of life-changing situations that may result in chaos that could potentially ruin the business and bankrupt its owners, assuring the remaining owners that the business will carry on successfully.

      A Buy Sell Agreement Lawyer Helps Transition the Business Ownership.

      The Buy Sell agreement is also heard of as a buyout agreement, a business will, or a business prenup. Comparing a buy sell agreement with a prenuptial agreement is the most accurate comparison: In a prenuptial agreement, you can get out of the marriage under certain conditions. 

      At the same time, you can protect your financial operations. A buy sell agreement offers the same rights, just with one small difference. In a Buy Sell agreement you can cover all the financial transactions between the business partners. This makes a buy sell agreement more reliable and more effective in terms of financial stability.

      A buy sell agreement defines your rights when it comes to difficult situations.

      Your partner can fall ill or become unable to operate the business the right way. In that case, a buy-sell agreement lowers your financial risks of bankruptcy or debt. You can protect yourself by signing an agreement that will keep your business intact.

      Two Common Types of Buy Sell Agreements Are:

       

      • Cross-purchase agreement, and
      • Redemption agreement
      • A cross-purchase agreement happens when the remaining owners decide to purchase the shares of the business that is for sale. In this matter, it is important to know that the mechanism relies on a life insurance policy.
      • A redemption agreement is another form of a buy sell agreement. Here, we have a situation when the business entity buys the shares of the business. With a redemption agreement, the contract limits the ability of business owners to sell or transfer their ownership stakes in the business.

      Some businesses decide on a mix of the two forms of agreements, with some portions available for purchase by individual partners and the remainder bought by the partnership. The importance of a buy sell agreement covers most of the financial risks that may occur in the business.

      How to Know If a Buy Sell Agreement Is Right for Me

      If you plan to start a business with a partner, a buy sell agreement can offer many protective points that can change your business perspective.

      Many life situations are inevitable and we can rely on this kind of contract when the official regulations are necessary for business operations.

      Your business partner may go ill or die, and that is when a buy sell agreement comes into effect. Your business capital will be protected and you can continue all the future business operations.

      Here are some potential situations that a Buy Sell Agreement would prepare you for:

      1.  Personal Bankruptcy of one of the owners;
      2.  Business owner’s retirement;
      3.  Disability of one of the owners;
      4.  Irreparable disagreement between partners;
      5. Death of one of the owners.

      Cross-purchase buy and sell agreements contribute to the rights of the business owners.

      As a remaining business owner, you can buy the interests of the selling owner. This applies when a selling owner is no longer capable of maintaining their business obligations. 

      Buy and sell agreements are also important in the method of determining the overall business value at the beginning of the business as well as when one of the business owners remains the only owner.

      Careful drafting of a buy sell agreement can also eliminate or lower any potential estate taxes that apply at your death.

      In the situation when you want to pass your ownership interest to one of your family members at your death, avoiding the estate tax is one of the possible outcomes.

      What Can I Get From A Buy Sell Agreement?

      A Fair Value Price for Shares

      A Buy Sell Agreement is a perfect way to establish the Fair Value of your business individual stake. This agreement sets the figure ahead of time, preventing disagreements between partners about whether a buyout is or not fair.

      Facilitates the break up of the partnership 

      The Buy Sell Agreement minimizes the stress of the disintegration of the partnership, having designed a legally binding strategy to be followed in the case a partner exits the company 

      Lets owners decide on the future of the shares

      The Buy Sell agreement specifies who is entitled to your stake if you exist, preventing owners fighting over shares or third parties deciding on the future of your company. The uncertainty can be avoided with a well-crafted agreement.

      Do I Need a Buy Sell Agreement Lawyer?

      A buy sell agreement lawyer is necessary if you want to avoid state taxes and protect your business capital and operations. With a buy sell agreement, you will be able to buy shares of the business and prolong your business perspective.

      A good buy sell agreement lawyer can help you draft the buy sell agreement that protects both your business partner’s interests and your interests. You will have the right to continue the business operations even in the case of illness or death of your partner. 

      It is possible to stay protected and define a new business strategy with a buy sell agreement. A good buy and sell lawyer can help you craft and improve the right contract that protects you in the case of inevitable circumstances.

       

      When Should I Make a Buy Sell Agreement?

      The perfect moment to create a Buy Sell Agreement is way before the ownership transition, when all the owners are equally involved and an orderly transition can be planned for. 

      Since at the time the buy sell agreement is being executed the owners may not even know who would be bought out, when and why. Hence, relationships between the owners would be presumably good so they would most likely come to an objective consensus on the terms.

      If you wait for the triggering events to occur, relationships may be strained, and not having a solid buy sell agreement may result in conflict, potentially becoming extremely expensive for all the parties. 

      Making sure that the terms of the buy-sell agreement are in writing and having the owners agree to those terms beforehand helps to eliminate the potential conflict. 

      The buy sell agreements doesn’t need to be a separate document. It could be included in the company’s shareholders agreement or in the partnership agreement. 

      The important thing is not to assume that you have one, and always make sure to keep it updated and clear in what your specific intentions are, amending the existing agreement or creating a new one if necessary. 

      Do I Need a Buy Sell Agreement if I Am the Sole Proprietor of My Business?

      Even if you are the only shareholder in your business, you should still consider to have a Buy Sell agreement to make sure your assets are protected in the face of any eventuality. 

      The Buy Sell Agreement is a clear outline of your intentions for the future of your company that will be taken into consideration once you no longer have the power to voice it. You certainly would be saving your heirs, and employees unnecessary trouble.

      What Important Things Should I Consider in My Buy Sell Agreement?

      Avoid the use of Ambiguous Language

      Since the purpose of your Buy Sell Agreement is to prepare for any possible eventuality involving one of the owners, you should make sure the statements in the agreement are the clearest possible so you prevent conflict between the stakeholders the moment the sale is executed. 

      Unclear language in contracts tends to represent further conflict between the parties involved, which can only mean negative financial repercussions for you.  

      Worst Case Scenarios Must be Considered

      It doesn’t matter if probabilities are very low, you should have a Buy Sell Agreement that takes into consideration all the possible scenarios. You want to have every precautionary clause possible to assure you the best outcome.

      Set the Objectives Of Your Business Straigh

      All of the owners should not only understand, but also agree with the short and long term objectives of the company. If this concordance doesn’t happen and the owners have varying objectives it may be difficult to outline a good Buy Sell Agreement.

      Beware of Taxes

      You should get assessment on the tax consequences of shares exchanging, to prevent you and your business from losing a lot of money. A good Buy Sell Lawyer can guide you to make the right moves when it comes to avoiding getting wrecked by taxes.

      If you are looking for a Buy Sell Agreement Lawyer don’t hesitate to contact us.

      Thomas Howard

      Thomas Howard

      Real Estate Lawyer

      Whether this is your first land use issue or most recent, our office has helped people and businesses alike.

      Thomas Howard was on the ball and got things done. Easy to work with, communicates very well, and I would recommend him anytime.
      R. Martindale

      Need A Business Lawyer?

      Call our law offices with your legal questions for help on:

      1. real estate contracts
      2. business contract disputes
      3. Shareholder litigation
      4. cannabis business
      5. fraud actions
      6. mechanic's liens

       

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        Practicing Law Without A License

        Practicing Law Without A License

        Practicing Law Without A License

        Practicing Law Without A License

        Practicing law without a license is a terrible idea that happens to some professionals, consultants or real estate agents may go over the line.

        Be careful when carrying out your professional relationships and know where the line is for what your jurisdiction considers the unauthorized practice of law.  

        In this article – we cover when some professional may enter into the unlicensed practice of laws and how to avoid it.

        Unauthorized Practice of Law

        Illinois, like all states, prohibits the practice of law by individuals not admitted to practice in the state. Illinois sets this forth in the Attorney Act, 705 ILCS § 205/0.01 et seq. Section one of the Act provides that:

        “No person shall be permitted to practice as an attorney or counselor at law within [Illinois] without having previously obtained a license for that purpose from the Supreme Court of this State[.]”

        The Illinois State Bar Association provides a wealth of Ethics Opinions on this topic. 

        The Illinois Supreme Court has long held that the practice of law involves giving advice or rendering of services which require the use of legal skills or knowledge. People ex rel. Illinois State Bar Assoc. v. Schafer, 404 Ill. 45, 87 N.E. 2d 773, 776 (1949). That is, the “practice of law” is much more than simply going to court or representing someone in litigation. Here are just a few samples of activity which constitutes the “practice of law” in Illinois:

        1. Representing someone in an arbitration, even if the arbitrators aren’t lawyers (ISBA Opinion No. 12-17)
        2. Assisting or advising someone in completing corporate documents, even documents provided by the Secretary of State (ISBA Opinion No. 95-7)

        Representing someone in a property tax appeals in many Illinois jurisdictions (In re Yamaguchi, 118 Ill. 2d 417, 515 N.E.2d 1235 (1987)

        What Crosses the Line for Unauthorized Practice of Law?

        The line for unauthorized practice can get especially blurry with high volume practices like residential real estate and consumer bankruptcy, in which lawyers rely heavily on paraprofessionals to process a large volume of often duplicative paperwork. The important distinction for these kinds of practices is that non-lawyers can perform administrative tasks like simply filling out information (names, addresses, etc.), but once they start making changes to the forms themselves, they may be stepping over the line and into unauthorized practice. This risk is especially serious for lawyers working in high volume practices, and lawyers who work frequently with other professionals like accountants and financial planners.

        Here are some simple tips for staying on the safe side of the law.

        1. ALWAYS ask first. If you have any questions as to whether sometimes constitutes the practice of law, then ask. Lawyers should foster a culture in which paraprofessionals never hesitate to err on the side of caution.
        2. Let your clients know. Make sure they are clear on what kind of services they are receiving, and make sure there’s no confusion as to who is and is not a lawyer. If you work with another professional services firm, make sure to use distinct letterhead.
        3. Create clear Roles, Responsibilities, and Expectations (RR&E, in business lingo). Administrative staff should understand that they’re doing administrative tasks. E.g., they might be filling out information in a form, but they should not be drafting forms.
        David Silvers

        David Silvers

        Regulatory Lawyer

        Whether this is your first land use issue or most recent, our office has helped people and businesses alike.

        Thomas Howard was on the ball and got things done. Easy to work with, communicates very well, and I would recommend him anytime.
        R. Martindale

        Need A Business Lawyer?

        Call our law offices with your legal questions for help on:

        1. real estate contracts
        2. business contract disputes
        3. Shareholder litigation
        4. cannabis business
        5. fraud actions
        6. mechanic's liens

         

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          What to Know about Good Faith or Bad Faith – an illustrated easy guide

          What to Know about Good Faith or Bad Faith – an illustrated easy guide

          Good Faith Is Business

          What Does Good Faith Mean?

          good faith

          good faith

          The implied covenant of good faith and fair dealing is implied in every contract.  The implied covenant of good faith and fair dealing is what makes business work.  It requires people to deal with one another fairly.  Businesses and people can trust each other to enter into contracts because good faith requires them to help them get the benefit of their bargain.

          Attorney Thomas Howard has helped clients for years enforce their rights under contracts.  And each and everyone of those contracts had something in common – but it was not a term written into any of the contracts.  Our business attorney have helped countless clients with their contracts, below he explains good faith in an easy to understand and Illustrated way.   You can call him at (309) 740-4033.

          General Duty of Good Faith and Fair Dealing

          A duty of good faith and fair dealing is a tenant of contract law, which often comes up in insurance. Insurance is basically the business of selling contracts that protect against risk. Here’s some relevant case law regarding good faith insurance contract, a well litigated issue:

          • Therefore, an insurer has a duty to act in good faith and fairness to its insured, which requires that it not elevate its own self-interest above the interest of the insured. Monical v. State Farm Insurance Co., 211 Ill.App.3d 215, 569 N.E.2d 1230, 155 Ill.Dec. 619 (4th Dist. 1991).
          • “The insurer’s duty to deal fairly with the insured arises out of the contractual relationship, and thus an insured may sue his insurer for breach of that duty.” Garcia v. Lovellette, 265 Ill.App.3d 724, 639 N.E.2d 935, 937, 203 Ill.Dec. 376 (2d Dist. 1994).
          • While a fiduciary relationship exists between an insured and a broker who acts as the agent for the insured, Illinois law does not classify an insurer as a fiduciary of its insured. Robacki v. Allstate Insurance Co., 127 Ill.App.3d 294, 468 N.E.2d 1251, 1253, 82 Ill.Dec. 471 (1st Dist. 1984); Nielsen v. United Services Automobile Ass’n, 244 Ill.App.3d 658, 612 N.E.2d 526, 531, 183 Ill.Dec. 874 (2d Dist. 1993).
          • Thus, it is not the duty of the insurer to inform the insured of his or her duties. Foamcraft, Inc. v. First State Insurance Co., 238 Ill.App.3d 791, 606 N.E.2d 537, 539, 179 Ill.Dec. 705 (1st Dist. 1992).
          • Likewise, the law has not imposed on an insurer the duty of reviewing the adequacy of an insured’s coverage. Connelly v. Robert J. Riordan & Co., 246 Ill.App.3d 898, 617 N.E.2d 76, 79, 186 Ill.Dec. 837 (1st Dist. 1993).
          • A property insurer similarly has no duty to sell its insured full coverage. Nielsen, supra, 612 N.E.2d at 529.
          Thomas Howard

          Thomas Howard

          Distressed Assets Lawyer

          Whether you’re a bank or distressed asset purchaser, Thomas Howard can help you quickly recover on your loans.

          Peoria Office Address

          A commercial loan workout attorney with over ten years experence – Thomas Howard answers your questions in the video below.

          The Duty of Good Faith & Fair Dealings

          Any party to a contract has an unwritten duty to help the other party obtain the benefit of their end of the bargain.  A benefit of the bargain is what you get out of the deal.  Let’s take a quick second to explain the very basics of what forms a contract.

          A contract had 3 basic elements

          Contract Basics Offer Consideration Acceptance

          • Offer & Acceptance: This is what you buy. Pizza, coffee, plumbing, Netflix, or even legal services.  The offer is what the seller in the contract brings to the table.  It brings the buyer in the door.  The Buyer is accepting the offer.
          • Consideration: This is often money.  In the picture, the coffee is $3.50.  The consideration is two-way, however.  The offer is a consideration as well.  The pizza is half the deal, so is the NetFlix subscription.  Very often the consideration is goods or services in exchange for payment of money.
          • Meeting of the Minds: This is the most complex of the three basic contract elements, and where Good Faith resides.  The intent of the parties to the contact is important. Both intended to get what is called the “benefit of their bargain.” This means you do not get tricked into the deal. You are not making a mistake regarding the terms of the contract.

          Meeting of the Minds and Good Faith

          Would you enter into a deal to buy a house if you knew every time it rains the basement floods with 3 feet of water?  Perhaps you would if you negotiate a discount for installing a dewatering system.

          But would you buy the house with the leaky basement if you did not know about it?  That’s where people get into trouble because they feel as if they are tricked. 

          They lacked the requisite meeting of the minds on the deal because if the buyer knew about the basement flooding, he never would have purchased the house.  That is a lack of meeting of the minds that gets to the heart of contract formation.

          What if the seller knows about the water in the basement, and lies on the disclosures and says that to the best of his knowledge there is no water in the basement? 

          That is fraud, a/k/a bad faith.  The Seller lying about the leaky basement injured the Buyer.  The Buyer can sue the seller for fraud and recover the damages.  The damages would be the cost of repairing the leaky basement.

          Interference in the Contract – Bad Faith

          The “duty of good faith and fair dealing requires the party vested with contractual discretion not to injure other parties to the contract by action or omission and not to act inconsistently with other parties’ rights.” Id, citing Brzozowski v. Northern Trust Co., 248 Ill.App.3d 95 (1993).

          Sometimes contracts have certain rights that may spring into effect.  These are called contingencies. For example, take your employer’s stock price.

          Imagine your job has a contract to that will pay you a bonus if you do a great job and the stock price rises above $100.  If that happens, your employer will pay you one-million dollars.

          one million dollars

          You have 3 months to get the stock price above $100, and you’re doing amazing!  But your company does not want to pay you. They notice that your contract requires their help. 

          Instead of helping you maximize profits, the company sits back and waits and takes no action. If the company does not do their part, you will fail and not get your bonus.

          The duty of good faith and fair dealing requires the company to help you hit your target when they must cooperate to do so. The company cannot interfere, not help, and put you in a position to fail, then say you did not earn your bonus. 

          That is performing the contract opportunistically to deprive you of your one million dollars.

          Good Faith Case Law Round up

          1. A party cannot take advantage of a condition precedent the performance of which he has helped render impossible. Barrows v. Maco, Inc., 94 Ill.App.3d 959, 966 (1st 1981).
          2. Bad faith, or opportunistic advantage-taking, is the lack of cooperation depriving the other contracting party of his reasonable expectation. Hentze v. Unverfehrt, 237 Ill. App.3d 606,(1992).
          3. A party that participated in the hinderance of the condition, and they may not now claim the benefit of the failure of the required event. Yale Development Co. v. Oak Park Trust & Savings Bank, 26 Ill.App.3d 1015 (2nd 1975).

          Good Faith Means You Do What You Promised

          To conclude, good faith helps our economy have trust in the trillions of dollars of contracts that we depend on in our daily lives. 

          As the American Bar Association said in their blog,

          The theory behind this principle is that a party cannot interfere with or fail to cooperate with your performance and then complain about it.

          From the pension funds, to pizza orders, and everything in between, all depend on good faith and fair dealing in their contracts.

          So if you ever get the advice to take a dive, or to not perform your end of the bargain – you may have to explain to the person that you have a duty of good faith and fair dealing to live up to your end of the bargain.

          You may also want to avoid doing business with them. 

          If you have a contract dispute, call our offices at (309) 740-4033.

           

          Thomas Howard was on the ball and got things done. Easy to work with, communicates very well, and I would recommend him anytime.

          R. Martindale

          What does Good Faith mean?| Good faith is for business| Tom Howard

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