Can a Chapter 13 Bankruptcy Help to Forestall a Foreclosure?
Video Summary
Can a Chapter 13 forestall a mortgage foreclosure action? You betcha it can! Because once you file any kind of bankruptcy action, it is a federal court, and so it immediately stays the foreclosure action. And even if it’s scheduled for foreclosure sale, the Chapter 13 will stop the foreclosure sale if it’s filed just before the sale date after it’s already been going through a foreclosure.
I don’t do bankruptcies; however, my understanding of a Chapter 13 is that you basically say that I can make the payments, and I’m a little bit behind on my other payments, so the bankruptcy court – this is my understanding – will take your deficiencies or the payments that you’re behind, and let you spread that out over a 60-month period, but that means you’ve got to make your regular payment, as well as one-sixtieth of the back payments. And if you don’t make those payments, well, you get kicked out of a Chapter 13.
Now sometimes it’s sort of frustrating if you’re trying to foreclose a mortgage where people will file more than one 13. We call those a Chapter 26 or Chapter 39 if they keep filing, you know, several times after you go through the foreclosure process, but it can be very useful.
Also, if you file bankruptcy action, you have a good chance of possibly working out a mortgage modification in the federal bankruptcy court. So if you need a referral to a good bankruptcy lawyer, well, give me a call and I’ll be happy to give you the name of an attorney who will be glad to try and help you or refer you to someone that will do a Chapter 13 for you.
My phone number is 727-847-2288.
- Published in Real Estate - Foreclosure, Videos
What Can a Tenant Do if the Landlord Refuses to Fix the Property?
Video Summary
What can a tenant do if a landlord refused to repair the property? Well, the Landlord-Tenant Statute provides that you can give the landlord a seven-day notice to repair the property, and if they don’t, well, then you’re in a position to terminate your lease and vacate.
What I have found in talking with many tenants is they just want them to fix the property. They really don’t want to move out or can’t afford to move out and probably the landlord would be tickled to death if the tenant moved out, but the remedy that you have is to give a notice to the landlord that he’s got seven days in which to repair the problem and if they don’t, well, then you’re in a position of terminating the lease.
I have done this for some of my tenants in apartment complexes and although they’ve done it properly in my opinion, the apartment complex still has turned over this matter to collection agencies and turned them over to credit bureaus, which you can then contest, but that’s about the only remedy you have, and so if you have some problems, well, you can give me a call at 727-847-2288.
- Published in Real Estate, Videos
How Long Can I Stay in My Property if I Stop Paying the Mortgage?
Video Summary
How long can I stay in my property if I quit making my mortgage payments? Well, you can stay in it until such time as the mortgage foreclosure action is concluded, which is the sale of your property. It’s a public sale or auction, and even after the sale, then whoever purchases it must wait approximately 14 days before a Certificate of Title is issued. You can stay in there for that long, and then even after that time period because then the lender or whoever holds your mortgage must apply for a Writ of Possession, and then if they get a Writ of Possession, then the sheriff will serve that on you and then you have 24 hours to vacate.
I realize I have not given you a timeline as far as whether it’s nine months, a year or two years, and that’s because there isn’t a pat answer to that. It depends on the lender. I’ve talked to people who haven’t made payments for two or three years, and the lender has not filed a mortgage foreclosure action, and even when a mortgage foreclosure action has been filed, many of them languish in the court for years and not be pushed forward.
Also, if you retain the services of our law firm, we’ve been able to assist people in staying in their home for a considerable length of time, even after the foreclosure action, and try and work on trying to get a mortgage modification or resolving the foreclosure action without a deficiency judgment. Also delay it long enough if you want to try and affect a short sale.
So the amount of time as far as days and years or months is dependent upon how quickly your lender moves as far as referring the matter to a law firm to foreclose on you, and then how quickly the law firm proceeds with a mortgage foreclosure action, and even after filing the foreclosure action, how quickly they move the proceedings along. So I tell people if you don’t do anything after you’ve been served with a mortgage foreclosure complaint, you probably have about nine months to a year before they will be able to put you out of the property.
So if you get sued in a mortgage foreclosure action and would like some assistance, give me a call at 727-847-2288.
- Published in Real Estate - Foreclosure, Videos
What are My Duties as a Trustee of a Trust?
Video Summary
What are the duties of a trustee named in a trust? The most common scenario we see is whenever someone comes in and they set up a trust during their lifetime, which is called a living trust or a revocable trust, where they name themselves, and then they provide who their assets are going to be distributed to under the provisions of the trust, and name a successor trustee.
During the person’s lifetime they can pretty well treat the trust assets any way they want to since it’s for their benefit. Upon their death, the revocable trust becomes irrevocable, and the successor trustee then assumes the responsibilities, and they are to send a copy of the trust to all the beneficiaries, whether they be income beneficiaries, whether they like the beneficiaries or not, but they’re to send a copy of the trust to everyone.
They’re also to file a notice of trust in the public records. After having sent out the trust and recorded the notice of trust with the probate court, then they go about obtaining an inventory of all the assets that are in the trust. Once that’s accomplished, they need to obtain a federal identification number so that an accounting or a tax return can be filed by them so that they don’t have to pay any taxes.
Now during the lifetime of someone who sets up a trust for their own benefit, they’re not required to get a federal identification number, and can use their Social Security number. However, upon their death, the successor trustee has to have a federal identification number in order to file a fiduciary tax return, and that would govern how the people are to pay taxes on the money that they receive or the income that they receive from the trust, and that would be something that the successor trustee would want to consult with the attorney about, as far as the administration of the trust and the distribution of the assets, in particular, if there is homestead property involved, if there’s property in the name of the decedent, and we need to go through a probate proceeding in order to obtain those assets to be titled in the trust, and then the trustee must be very careful in reviewing the provisions of the trust to see what they’re directed to do. If it says simply, “Distribute out at my death as soon as possible to the named beneficiaries,” well, you need to make sure that the creditors are paid, and then have an accounting of everyone, as far as the inventory, to make distribution, and then file a fiduciary tax return with the Internal Revenue Service so that the income can be accounted for, and you can be compensated as trustee in order to be able to fulfill your duties as a trustee.
If this is a continuing trust, meaning that you must pay the income to a beneficiary for an extended period of time, then you need to consult with an attorney concerning your investment responsibilities and financial responsibilities, and that you’re governed under the Prudent Investor Act. There’s a whole trust code, a bunch of rules and laws as to what you’re obligated to do, and I would urge you to consult with an attorney about a trust administration.
If you have any questions, give me a call at 727-847-2288.
Thank you.
What Are The Rights of a Spouse in a Home When the Spouse Dies?
Video Summary
What are the rights of the spouse in a home when their spouse dies? We first have to look at how title is held to the property. If it is held in their joint names as husband and wife, then the property automatically goes to the spouse, and all that is needed is to record a death certificate.
If the title is just held in the spouse’s name alone who passes away, then it is considered homestead property, and is controlled by the Florida Constitution and the laws of the State of Florida. And if you’re survived by a spouse and minor child, then the spouse receives a life estate and a remainder interest vest in the children. You cannot devise it or leave it in your will to anyone else. The spouse does have an election to make, and they can elect to take a half interest in the property, but they must file that election within, I believe, six months of the date of death of the spouse. So if you do lose your spouse, you need to contact an attorney right away to discuss your rights in the property.
Now if your spouse leaves a will, and the deceased spouse is not survived by minor children, then the decedent can leave in his will the property to his spouse. That is the only person he can leave it to. He cannot provide for life estate or anyone, anything else, and so it is an improper devise to leave it to anyone other than your spouse, and then it would be controlled by law, which would mean that the spouse would have a life estate or elect to take a 50 percent interest in it, and the other remainder interest would pass to the adult children of the decedent.
So it’s a little bit complicated as far as homestead is concerned; misunderstood by a lot of attorneys. So if you lose your spouse and he owns the property in his name alone, I urge you to give me a call; set up an appointment, and let’s review the situation right away.
My phone number is 727-847-2288.