< PreviousThe ugly truth of the COVID-19 Pandemic is that some busi- nesses will succumb to the im- pact it has had on their operations. These businesses do not have the “pockets” to weather this storm and owners are going to be faced with de- cisions that impact employees, their business and ultimately themselves. While a significant amount of atten- tion has been given to government programs that provide liquidity re- cent legislation and an update to the CARES act provide small business debtors with another form of bank- ruptcy protection. In 2005, amendments to the US Bankruptcy Code provides provisions designed to help small businesses un- der Chapter 11; however, the process will still expensive and confronted owners with hurdles in confirm- ing a plan that allowed for retention of ownership interests. In February 2020, the Small Business Reorgani- zation Act went into effect allowing small businesses to file under this new Subchapter V. This new provision al- lowed for significant cost savings by streamlining the process as well as allowing owners to maintain equity interests, even if no creditor votes in favor of the plan of reorganization. The Subchapter V’s cost savings are directly attributable to: • No creditor’s committee (or com- mittee professionals to pay for); • No US Trustee fees; and • Streamlining the process with a less complex plan and the use of forms to cut costs along with the removal of the requirement of a separate Disclosure Statement. Eligibility for the Small Business Reorganization Act is based on a modified definition of a Small Busi- ness Debtor. To qualify under the Act: • There is a requirement that not less than 50% of debtor’s pre-petition debts arose from the commercial or business activities of the debtor; • Excludes single asset real estate debtors; and • Excludes public companies and their affiliates. It is important to note that the CARES Act raised the debt limit from $2,725,625 to $7,500,000 until March 27, 2021 for Subchapter V cases. This only applies to those small businesses that are eligible and elected Subchap- ter V. Objections to eligibility may be raised and small businesses need to be aware of them. If you are an owner of a small business, you need to examine the total debt across all affiliated debt- ors to make sure it does not go over the $7,5000,000 level. Once eligibility is confirmed the small business will have to work with counsel and the financial advisor to develop a plan. The plan includes current financials, valuation of as- sets, solvency, a 13-week cash flow, lease analysis, projections, taxes and a petition, SOFA & First Day decla- ration. Under the plan the history of operations along with a liquidation analysis, debtor payment projections and submission of all or such portion of the future earnings/income of the debtor to supervision and control of the trustee as is necessary for its’ ex- ecution. Small business should seek counsel from an experienced bankruptcy at- torney as these plans move much fast- er and require in-depth knowledge of the bankruptcy plan. This is not a good option for an inexperienced at- torney or financial advisor to assist the small business client if they are new to the bankruptcy and reorgani- zation process. There are several legal requirements in addition to eligibility and submission of a plan that a skilled attorney can help a small business owner navigate. Attorneys and financial profession- als who may not be familiar with the Bankruptcy process need to be on the alert more than ever to assist clients who may need to consider bankrupt- cy as an option. The purpose of this article is to educate practitioners to identify if their small business client may be eligible to partici- pate in the Subchap- ter V process. JOSH SHILTS | Forensic Accounting Joshua Shilts is president of Shilts CPA, PLLC. Mr. Shilts’ practice is focused on assisting attorneys, individuals and businesses with complex financial matters and disputes... He has been involved with hundreds of forensic investi- gations dealing with a variety of matters involving personal and business disputes as well as the identification and mitigation of fraudulent activities. Mr. Shilts has provided expert testimony in commercial and family matters sur- rounding business valuation, economic damages, fraud and other applicable disciplines surrounding economic and accounting issues. He has been qualified as an expert witness in State court as well as testified in Federal court. Small Business Bankruptcy Process: Alternatives for Small Businesses AttorneyAtLawMagazine.com 21Now a notary for your docu- ments is merely a few clicks away, rather than a few miles away. This new capability has sprung forth from a marriage of technology and notarial law, but what is the legal framework upon which remote on- line notarizations rest? The legal framework that remote online notarizations are based on begins with the Uniform Electronic Transactions Act (“UETA”) and the Electronic Signatures in Global and National Commerce Act (The “E-Sign Act”) which was signed into law in 2000. UETA, which has been adopted by 47 states, with the remaining three states upholding similar legislation, provides a framework for states to de- termine the legality of electronic sig- natures. Along with some important required consumer disclosures, The Federal E-Sign Act made electronic records and electronic signatures the same as traditional paper records and wet signatures in terms of effective- ness and validity in the eyes of the law for any transaction that effected interstate or international commerce. The use and acceptance of electronic signatures and records, along with audio-visual communications tech- nology, allows remote online notari- zations to enjoy the benefits of being a fully digital experience. Since the re- cord and signature are electronic, the document can be uploaded, prepared, executed, notarized, tamper-sealed, and transmitted back to the principal signor for record- ing all in a matter of minutes. The next legal principle is the Full Faith and Credit Clause of the US Constitution, which states: “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” In the notarial world, this means that each state shall recognize a notarization performed in another state as if it were performed by a notary public of the recording State under the laws of that record- ing State. As an example, if eNota- ryLog abides by Florida’s remote on- line notarization laws and provides a valid Florida online notarization per- formed by a Florida notary to a resi- dent of Georgia, the party accepting that document in Georgia is to act as though the document was notarized by a Georgia notary according to the laws of a valid Georgia notarization. While UETA and the E-Sign Act laid the foundation for remote online no- tarizations to be digital, the Full Faith and Credit Clause allows notaries and signors to leverage remote on- line notarizations as a digital process. Through a remote online notariza- tion platform with the Full Faith and Credit Clause, a signor now has access to a national notary market. Likewise, a notary can service notarial transac- tions for signors nationwide. Finally, there are the remote online notarization laws themselves. The component that allows remote online notarizations to be “remote” is the re- defining of the concept of being “in the presence of the notary.” Tradition- ally for a valid notarization, the signor would need to be in the same room as the notary to satisfy this requirement, but with remote online notarization laws, “presence” is satisfied by unin- terrupted audio-video communica- tions technology of sufficient qual- ity to allow the signor and notary to communicate in real-time. Furthermore, each remote online notarization bill contains a “relation to other laws” provision which reaf- firms that remote online notarizations are a valid means of notarization un- der the state’s laws like this provision from Florida’s remote online notari- zation law, “If a provision of law re- quires a notary public or other autho- rized official of this state to notarize a signature or statement, to take an acknowledgment of an instrument, or to administer an oath or affirmation so that a document may be sworn, af- firmed, made under oath, or subject to penalty of perjury, an online no- tarization performed in accordance with the provisions of this part and any rules adopted hereunder satisfies such requirement.” This is an impor- tant provision that considers remote online notarizations to be the same in the eyes of the law as a traditional notarization, and it places remote on- line notarizations within the scope of interstate recognition. Remote online notarization laws have revolutionized the notarial act that remained mostly unchanged for hundreds of years, until now and they are quickly sweeping across the nation. There are 24 states with their own enacted RON laws with many more in the process of being passed. In response to the COVID-19 crisis, many states such as New York have passed emergency executive orders to permit some version of RON to take place to help facilitate the con- tinuation of commerce. This trend of spreading remote online notariza- tion laws across the country should continue as more and more states, notaries and signors recognize and appreciate the value of remote online notarizations and the legal framework which supports it. JAMES MITCHELL | Notary James Mitchell is a co-founder of eNotaryLog, a remote online notarization service provider headquartered in Tam- pa, Florida. He has a background in law working with law firms and tech companies and is a commissioned online notary public. James spends his time working at eNotaryLog as Chief Executive Officer and working with industry leaders to advocate for the widespread adoption of remote online notarization across the United States. Remote Online Notarizations: A New Concept We’re Getting Familiar With ATTORNEY AT LAW MAGAZINE · FIRST COAST · VOL. 5 NO. 4 22Forensic Video Law 904.716.5149 forensicvideolaw.com James R Jenkins James@forensicvideolaw.com Settlement Documentaries Day in the Life Exhibits Trial Exhibits Pain Management Injection Procedures CME/IME Documentation Deposition Testimony HD Drone Capture Documentation On-Site Inspections Accident Site Documentation Surveillance Enhancement $1.75 Billion in Success Increase the Value of Your Case!COKERLAW.COM | 904.356.6071 At Coker Law, we are proud to stand together as co-counsel in the courtroom. We know your reputation is your livelihood. That’s why we dedicate our own passion, experience and resources to your client’s fight for justice. You can count on our legal team - and your client’s case - to be trial-ready. Together, we are one. Together, we fight. Thank you for trusting Coker Law. It’s your reputation; We uphold it. OFFICES-JACKSONVILLENext >