Legal Ground & the Statute of Frauds
The Statute of Frauds says that for certain types of contracts to be enforced, they have to be in writing. Real Estate is one of them. With Real Estate transactions, you have to prove that a contract exists and have it in writing. A handbag of cancelled checks for payments on the property might not do it. (And big checks could just be prepaid rent payments.) What does that check say? Is there a memo that shows a written agreement? Or is there writing of any kind, including emails? Or were you making highly philanthropic donations without realizing your own inflated altruism? Even if you do have a sketchy paper trail to piece a contract together, it is still going to mean litigation, and that is going to be more expensive than paying an attorney to write up a proper contract to start with. If you are paying for a piece of real estate and expect to actually own it, make sure there is a real estate contract in writing, unless you are being hyper-charitable without the tax write-off. Do not get caught on the wrong side of the Statute of Frauds without legal ground to stand on. Have a [...] Read More
Mistaken Identity in Foreclosure
Mrs. Widow Homeowner had paid her mortgage all her life, even after her husband passed away, and she was still making her payments on time every month. First, Woolworth Wealth sent her a foreclosure lawsuit, and then she received another foreclosure lawsuit from Montgomery Mortgage. You can imagine the Judge’s surprise when both plaintiffs showed up in the courtroom against Mrs. Homeowner, especially when Mrs. Homeowner arrived with a pocketbook full of cancelled checks from her regular payments. It happens. Banks and loan servicers do not always have their records right. Just because a bank or loan servicer has the experience of handling thousands of similar accounts, that does not necessarily mean they have yours right. You may need to seek legal counsel to defend you against mistaken identity. Read More
Florida: The Constructive Notice State
Florida is a state of sunshine, beaches, and Constructive Notice on property title. Most title companies try to make that gap between closing and the time a deed is recorded as small as possible…for good reason. If Christopher Crook sells a piece of property at Title Company A, and then an hour later sells the same property at Title Company B, who is the owner of the property? Answer: Buyer B. The buyer at the second closing does not have Notice if Title A has not made it to the courthouse yet. Once the deed is recorded, then Constructive Notice is given. Read More
Pay Your HOA…Even in Foreclosure
Debt management is often a matter of priority. Power bill—check. Water—check. Home Owners Association—huh? If you cannot afford your mortgage, why keep paying HOA fees? The answer lives right next door: your neighbors. Association fees, for homeowners and condo residents, go towards the infrastructure of your neighborhood or condominium and help to upkeep the amenities and common areas you and your neighbors enjoy. And the benefit lives where you do too: your credit score. You may have to move out of your house, but your credit score is coming with you wherever you go. Even in foreclosure, it is in the homeowner’s best interest to maintain the property—mow the grass, make repairs, and pay your association fees. Not only does this help to upkeep the property value of the area, but it may help you with a short sale, which could help you avoid a foreclosure on your credit report. Generally a judge will look more favorably on your foreclosure case if you show effort in trying to upkeep the property value. Your good intent could count even if you cannot put your money where your mortgage is. Read More
Blood & Alcohol
Cop cams add at least ten pounds of stupidity to your field sobriety test, especially when viewed in a courtroom. If you are pulled over for DUI, you seem to have two choices: get arrested with evidence, or without. In Florida, you do not have to take a field sobriety test. You will get arrested, but you do not have to give police all the funny footage of you doing stupid pet tricks on the side of the road. Or you can do the field sobriety test and get arrested anyway. If you are arrested for DUI, they can ask you to do a breathalyzer test. If you refuse the breathalyzer, you lose your license for four to six months period if it is your first time. The second time, it is a misdemeanor. However, if there is an accident with injury, that gives law enforcement probable cause to take a blood sample from you. A DUI charge means you probably got caught and there is evidence against you. It is a conviction with fingerprinting and a criminal record…and the prosecutors of this area are very professional at doing their jobs. The way to avoid a DUI charge is do [...] Read More
Exemptions & Collections in Debt Judgments
You may consider yourself unique, one-of-a-kind, invaluable—your credit card company may consider you an asset waiting to happen. So your credit card company sued you in small claims court. A debt judgment is just a piece of paper; they may as well print it on two-ply for all it is good for if you have no money. If there is nothing for them to collect from you, then there is nothing for them to collect. Either you are collectible or you are not, EXCEPT the creditor is going to watch your accounts for the next 20 YEARS. You may not always be broke. So you filled out your Fact Information Sheet—how much money you do NOT make, how many cars you do NOT own, and the Renoir you do NOT have in your basement. The creditor will go after cash first. They do not have to liquidate cash—it is liquid. If you have no cash, then they will look at other assets. If you have no other assets, then they will wait, and they will wait and wait, and watch your bank account to see if anything changes. The difference between exemptions and collections is about twenty years. You only have a [...] Read More
Quit Smoking without Jail Time
Some people use the patch to quit smoking or chew nicotine gum, but one California woman took a criminal approach: she slapped a cop. No smoking gun in this crime…no smoking at all in the Sacramento County jail, which was why she assaulted a uniformed Deputy Sheriff: so she could get locked up long enough to quit. Hopefully 60 days will do it. There are ways to quit smoking that do not involve the justice system, finger printing, and a criminal record. Generally if you are facing jail time or a fine, a defense attorney can help you work with prosecutors for the best possible resolution, but if you are trying to quit smoking, save the expense of legal fees. There is free online help at http://www.smokefree.gov/, as well as other resources. Read More
Second Look at HAMP with Expanded Eligibility
Are you employed but still struggling to make your mortgage payments? HAMP may be able to help, even if it could not in the past. HAMP is the Home Affordable Modification Program that modifies home loans for lower monthly payments. As of June last year, the Federal Government expanded the program so that more homeowners would be eligible. If your first look at HAMP turned you down, you may want to take a second look. As on their website, HAMP eligibility now includes: Homeowners who are applying for a modification on a home that is not their primary residence, but the property is currently rented or the homeowner intends to rent it. Homeowners who previously did not qualify for HAMP because their debt-to-income ratio was 31% or lower. Homeowners who previously received a HAMP trial period plan, but defaulted in their trial payments. Homeowners who previously received a HAMP permanent modification, but defaulted in their payments, therefore losing good standing. For more information about HAMP, go to http://www.makinghomeaffordable.gov. Read More
What You Read on the Internet About Foreclosure Defense
There is a lot of information about foreclosure defense online, and there is a lot of misinformation. If you believe everything you read on the Internet, then I am a French model. Bonjour. “Show me the note!” You say that in Clay County and they will show you the door. The question of “Whose loan is it?” is not as effective as a defense as it once was in some areas. Some court procedures are easier than others and a foreclosure defense is not one of them. Seek live legal counsel so you can ask and answer questions about your circumstances and what choices are available to you. Even the good information online may not be applicable to your case. Discuss it with a competent defense attorney. Read More
Estate Planning as a Matter of Life & Death
So you are being sued for credit card debt in small claims court, do you move everything into your wife’s name? This is where I like to encourage estate planning, not just to have your affairs in order at death, but also to be financially ready to deal with debt collection prior to assuming room temperature. Use the power of AND in your married relationship to spread risk to as many people as you can—like an insurance policy. You are joined by AND (not OR), and that is important. The Unity of Marriage subscribes to the legal fiction that husband and wife are one entity. If you get divorced later, you can divide the assets then, but while you are married, use the power of AND as Tenants by Entirety to secure your financial life. Read More