Author Archives: Tom Sweeney

Lead-Safe Regulations Again Up in the Air For Minnesota Renovators and Remodelers

The Minnesota Department of Health’s initiative to replace the EPA’s Renovation, Repair, and Painting rule with its own is delayed once again. In response to the Trump Administration’s efforts to reduce federal regulatory burdens, Minnesota elected to take responsibility from the EPA for overseeing the RRP rule. The rule is meant to protect the public and contractors from the serious health hazards caused by disturbing lead paint when renovating pre-1978 buildings.

Last December, a federal court gave the EPA 90 days to update both its lead hazard standard for residential and child-care facilities and its definition of lead-based paint under the Toxic Substance Control Act. The EPA argued that it did not know when the 90-day clock started. On March 28, the court granted a 90-day extension, until June 26, giving the Inspector General  time to determine whether the EPA has an effective strategy and budget to implement and enforce its RRP rule.

Because the state rule must be at least as tough as the federal rule, MDH cannot finalize its rule until the court-ordered review of the EPA RRP rule is complete. The result is that the regulatory issue is effectively on hold at least through June.

BATC Housing First Minnesota is deeply engaged with MDH to ensure that the construction industry’s concerns are considered when drafting the rule. As chair of BATC Housing First Minnesota’s regulatory affairs committee, I will bring you timely updates as they become available. For now, Minnesota contractors should continue to follow the EPA RRP rule.

Lead Safety Costs and Consequences

The dangers of lead paint are better understood today than they were when the EPA promulgated its original rule. Health advocates are concerned that the current acceptable lead levels are too high and that lead-safe practices are too lenient to protect children, pregnant women, the elderly, and the construction workers themselves. They used the court to compel the EPA to re-evaluate both acceptable levels and lead-safe practices.

There is broad agreement that lead dust and chips generated by remodeling should be contained and properly disposed. However, the industry maintains that actual health risks should be balanced against the cost of implementing the rule on a property-by-property basis. The fear is that the additional cost of renovating structures containing lead paint will either make projects unaffordable or drive them underground to unqualified individuals to avoid the cost of complying with stricter regulations.

In addition to the Inspector General’s review and the second 90-day reprieve, the fall elections also could impact how Minnesota responds to the lead paint rule.

Courtney J. Ernston Joins Minnesota Construction Law Services

Attorney Courtney Ernston photoCourtney J. Erston joined Minnesota Construction Law Services this month as a full-time attorney. She had previoulsly worked with the firm on a contract basis and practiced law at her own firm for more than three years.

“I grew up in a family construction business, served as its general counsel and understand firsthand the business and legal challenges that contractors face. Bill, Shelley, and the way they work with clients are a perfect fit for my legal experience, interests, and personality,” the St. Paul lawyer said.

Courtney acknowledged that some contractors might wonder whether a woman knows enough about construction and can work with guys in the industry. She looks forward to putting those concerns to rest.

“I'm every bit as comfortable on a job site as in a courtroom,” she said.

Whether you're looking for advice about building codes, prevailing wage or contracts, or you're grappling with a DOLI investigation, an immigration question or a collections problem, Courtney’s got your back.

Here’s an example of how she thinks. Whether you know it or not, companies and online services that process pre-lien notices and file liens have no liability to get it right because they make you sign a waiver. However, the Supreme Court would hold Courtney responsible, as your lawyer, for the accuracy of the information in the notices, correct statutory language, and meeting stringent deadlines. When she handles your liens, she will verify everything and take responsibility. More importantly, she will ask questions to make sure that filing a lien is the best path to get you paid. Filing a lien can delay the collection process by a year or more. There may be a more effective route. Courtney will help you decide.

The point is, typical lien services just process paperwork. As your attorney, Courtney will help you get paid for your work using the best tools. And she will be held to rigorous standards and understand statutes and rules that non-lawyer lien services don't even know.

When you're ready to talk about liens or other legal and business challenges, call Courtney at 651-484-4412.

Bill Gschwind BRS photo

2016 BATC Builders & Remodelers Show features growing MNCLS legal team

Minnesota Construction Law Service's growing legal team was out in full force at the golf-themed 2016 BATC Builders & Remodelers Show at the Minneapolis Convention Center on April 7.  Attorney Bill Gschwind was joined by associate Hugh Mulligan and Courtney Ernston, of counsel, immigration at the annual Minneapolis Convention Center event.

A steady stream of Minnesota contractors stopped at the Minnesota Construction Law Services booth to discuss warranties, subcontractor agreements, collections, DOLI compliance and immigration issues.







MN Contractors Now Must Use Attorneys for Mechanic’s Liens

Based on a reason court decision, only licensed attorneys are allowed to prepare and record mechanic’s liens for Minnesota contractors. This means liens prepared and filed by non-attorney collection agencies may not be valid and future liens certainly will be affected. Watch this brief video to learn more. Then contact Minnesota Construction Law Services to collect what you are owed for your construction projects.


MN Contractors Should Act Fast to Collect Bad Debt

As Minnesota sits in the middle of winter, many general contractors use this time to reflect back on completed jobs from the previous year and start planning for 2016. Part of that reflection includes jobs that were completed but the balance remains unpaid. The Commercial Collection Agency Association says that the probability of collecting on delinquent accounts drops dramatically each month after the due date, from 81 percent after two months to 52 percent after six months. Here at Minnesota Construction Law Services, our attorneys have the tools to collect your debt quickly.

Deciding the Best Course of Action

Not all collection issues are the same. The amount of the debt, your business relationship with the debtor, and what documentation was used in procuring the contract must be considered. Ultimately, there are two approaches for collecting a debt: mechanic's liens and court action. Each approach comes with advantages and pitfalls. Mechanic's liens expire after a year and cannot be renewed. Further, if the property owner doesn’t pay, the contractor must initiate a foreclosure proceeding before the lien expires to recoup what’s owed them, a costly proposition at best. We covered the mechanic’s lien process in detail last month on this blog, read more about it here.

Court action happens after a non-response from a debtor or, if the debtor is dissatisfied with the work, a demand letter could open the door to potential litigation regarding the financial dispute. Extended litigation can prove costly and, depending on the amount unpaid by the debtor, may not be worth pursuing.

Putting the Law to Work for You

Minnesota Construction Law Services’ attorneys will first gather all the relevant information regarding the outstanding debt and discuss the best and most efficient course. Once we determine the best way to collect on an unpaid balance, we immediately move forward with collection activity.

If recording a mechanic’s lien is the best course of action, that process includes pulling an Owners and Encumbrances report, initiating a foreclosure action, and preparing and serving a summons and complaint. The goal is to get our client paid in full from the owner, but we’ll take the house and sell it to get the money from the proceeds if needed.

If proceeding via court action is the appropriate path, our concise process starts with communication via mail with a letter demanding payment. All of our communication with debtors follows the Fair Debt Collection Practices Ac. The etter from Minnesota Construction Law Services makes clear that further legal action is imminent if there is no response.

Many collection companies try to lean on debtors with multiple letters and phone calls. This is not only ineffective most of the time; it wastes valuable time and lowers the odds of  collection. If no payment arrangement is achieved after our letter, we move swiftly to obtain a court judgment, then garnish wages and bank accounts to collect the money you are rightly owed. Unlike a letter or phone call that can be ignored, a court summons motivates debtors.

Payment Options

If you are using Minnesota Construction Law Services’ contract sets, your clients should be responsible for costs incurred to collect a debt. Costs to collect a judgment are not collectible by law, but post judgment interest is.

We offer legal protection plans that may include debt and judgment collection with no additional cost. We also offer a contingent fee, which means there is no cost unless our you collect. While there is no fee if we don’t collect, the cost as a percentage of the collection may be a little higher than with an hourly fee. Our hourly fee could be less expensive as a percentage of the debt collected, but requires payment regardless of whether we are successful in recovering your money.

Regardless of which payment option our clients choose, they are always responsible for any litigation costs and attorney’s fees incurred.

Contact Our Attorneys to Get Started

If you completed a job and remain unpaid, contact one of the attorneys at Minnesota Construction Law Services today. By the end of a conversation with one of our attorneys, we’ll have a course of action and be ready to take the first step towards getting you paid. The longer the debt remains due, the less likely the chances are for a successful collection. Be sure to contact Minnesota Construction Law Services today so you can move forward with confidence that you will be compensated fairly for your work.

Hugh Mulligan, Minnesota Construction Law’s New Attorney

Hugh MulliganHugh Mulligan served as a law clerk at Minnesota Construction Law Services while in his third year at William Mitchell College of Law. After receiving his JD degree last year, he passed the Minnesota Bar exam on his first attempt and was sworn in on October 30. We talked with the young Minneapolis resident about how he got interested in business law and why he chose to develop his promising career at Minnesota Construction Law Services.

What were your career goals when you pursued your undergraduate degree in Communications at Marquette?
Growing up in Massachusetts, I was obsessed with professional sports. Baseball cards, starting lineup action figures, the whole deal. Part of what fueled my interest was how sports were covered, which meant many days reading the sports page and watching ESPN. I wanted to turn my passion into a profession so I went to Marquette with the intention of being at ESPN someday.

While in college I worked as the sports director for the college television station and turned an internship into a part-time sports producing job at the local ABC affiliate in Milwaukee. Those experiences actually soured me on the profession, even though the people I worked for and with were awesome. At the end of the day, I was too much of a fan to cover sports with no passion, which is what I noticed happened to many of the professionals I met.

How did you end up working in the Marquette admissions office after you got your undergrad degree?
While attending Marquette, I worked as a campus tour guide and really enjoyed it. I had a great experience there, so showing people around campus was a natural fit. The admissions office was in charge of tours. The staff was small so I interacted with everybody when I wasn’t giving tours. As my interest in sports broadcasting waned, an admissions counselor position became a more attractive option because I would be able to continue to promote Marquette on a much wider scale. Upon graduation, a couple of counselor positions opened up and I was lucky to land one of them.

When and why did you decide to pursue a law degree?
I always had an interest in law as it really is everywhere in pop culture. TV shows like “Law and Order” and movies like “A Few Good Men” are prime examples. I also paid attention to larger trials in the national news. Once things started getting serious with my girlfriend (now wife), she encouraged me to apply to law school. I took the LSAT the summer of 2011 and sent out applications for the fall 2012 enrollment cycle.

How did you think you would use your law degree when you enrolled in law school?
I knew going in that I wanted to actively practice law. I am comfortable with public speaking and enjoy the back and forth of a court setting. Outside of that I was pretty wide open to most areas of practice.

While in law school, I clerked at a personal injury firm in the summer of 2013 and was an extern for Minnesota State Colleges and Universities for the spring of 2014. I learned a lot from my clerkship at the PI firm but realized it was not for me. While externing, I had the chance to observe court appearances and read motions, which I enjoyed much more. I took the Business Organizations course in the summer of 2014 and that really helped narrow my focus to actively pursue business law.

What attracted you to business law as you began to take classes? How did you demonstrate your interest in business law during law school?
It was really taking business law classes that attracted me to business law. After their first year at Mitchell, students have a good deal of independence creating their course schedules. Part of my plan was to take as many courses as possible on potential bar exam subjects. That included Corporations. Mitchell’s Business Organizations class covers partnerships, LLCs, and corporations.

I really enjoyed the Business Organizations class taught by Professor Leanne Fuith, the director of Mitchell’s Center for Law and Business. I also took Professor Fuith’s Transactions and Settlements class the very next semester. Over time, via some assignment reviews and general after class discussions, Professor Fuith learned that my wife and I were expecting a daughter in October of 2014. With this constant talking point, we kept in touch. By the end of the Transactions and Settlements course I had taken a serious interest in business law and applied to be part of the Law and Business externship that Professor Fuith oversees. Professor Fuith and Bill Gschwind had been classmates at Mitchell. My application for the externship ended up in Bill’s hands. The rest is history.

How has William Mitchell prepared you to get right to work for your MNCLS clients?
Mitchell’s slogan is “A degree in practical wisdom.” The college offers many opportunities to get a feel for what its like to be in front of a judge or jury and what to expect when working with clients. The WRAP and Advocacy classes teach students how to hone their writing and get comfortable defending their work. I also took a practicum course my final semester that has exercises in settlement conferences, plea deals, motion practice, and a full jury trial with community volunteers as jurors.

I can’t speak to how other law schools prepare their students, but I can say I feel ready for just about anything as I begin practice. Plus, Mitchell did a nice job teaching me what resources to consult if I don’t know or can’t find an answer right away.

You are working for a small law firm that caters to small businesses. How does this suit you?
Working for a small firm that caters to small businesses is exactly what I am looking for as I begin practice. My previous professional career in admissions was driven by personal attention and catering to individuals' needs. Minnesota Construction Law clients will have different challenges and needs as their businesses grow.

One thing I have noticed as I have worked here is that we do a great job making sure each client’s needs are met. I look forward to helping MNCLS meet clients’ needs as they come up and helping the firm be proactive in driving clients’ business growth.

How did your Communication degree help you in law school and how will it serve you and your clients at MNCLS?
My communication degree gives me a nice base when it comes to writing. Legal writing is different than journalism. But having written thousands and thousands of words on a variety of topics, I feel comfortable in front of a keyboard.

Interpersonal skills also are a big part of a communications degree. Journalism is largely about how to communicate to the masses, but you can’t get a message across without first speaking to those with the story. I have always been social and outgoing and I believe my interpersonal skills will be helpful in working with our current clients, finding new clients, and advocating for all of our clients in any forum.

You’re fresh out of law school. How will you make this work for your clients? What does a newly minted attorney bring to the table?
A newly minted attorney brings an understanding of where the profession is heading. I spent a good deal of the last three years reading about how admissions are waning and how bar exam pass rates continue to fall across the country. Reading all of these stories and statistics helped me realize that the profession itself is changing. New attorneys have a chance to reshape the role of lawyer and figure out how we are going to fit in the digital age.

At one time only those in the legal profession were privy to court decisions and statutes. Now, the Supreme Court issues an opinion and anyone with an Internet connection can read it on SCOTUSBlog. I love that, but it creates a challenge for lawyers. How do we make sure we continue to provide value to our clients? This is the mindset I have fresh out of law school.

Bill has owned and operated a small business, has an MBA and has a special focus in construction law. What are your mentoring expectations?
My main expectation is to learn. I already know more construction language than ever, but I have a long way to go. Sometimes Bill can talk about a roofing job or a window install and I feel like I am at a contractors’ convention hearing the keynote speaker!

Bill’s knowledge of small businesses, both personally and academically, is vast. My hope is to continue to pick up insights from him. The more I understand about what it means to be a small business owner, the better it will be for our clients.