Spring 2013
Fisher's Law Office

Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today.               ~ Click Here For PDF Version ~

Renewing your driver’s license in 2010? You’ll need additional documents proving who you are and where you live!

In order to renew your driver’s license beginning in 2010 you must bring a form of identification to the driver’s license office such as a birth certificate or passport.

You also must bring your Social Security card, pay-stub or form W-2 that has your social security number on it.

Lastly, you need to bring two documents that prove where you live such as the deed to your home, lease agreement, a voter registration card or a utility bill. Auto insurance policies and homeowner’s insurance policies that have your home address are also acceptable.

If your name has changed due to a divorce or legal name change, you also must bring a certified copy of the court order changing you name.
The foreclosure crisis in America is entering its third year. If you are having trouble making your mortgage payments consider the following:

1. The loan modification process is lengthy and difficult. Typically after the submission of requested documents the lender will give you a three-month “trial modification” during which you pay a lower payment. After three months the lender decides weather or not the modification will be approved.

The problem with most modifications is that the owner of the loan is not willing to reduce the principal amount owed on the mortgage. (Typically a successful modification requires that the balance on the loan be lowered to an amount lower than the value of the home so the homeowner has an incentive to continue making payments.)

2. If you are being sued in a foreclosure case and are in settlement negotiations with your bank be aware that the lawyer suing you may not be aware of the settlement negotiations.

Fisher’s Law Office recently had a case in which a client reached a full settlement with the bank to modify the loan. Unfortunately the bank’s lawyers were never told about the settlement! After we filed a motion, the court halted the foreclosure case.

Here are some other legal issues and trends in foreclosure cases:

In order to successfully foreclose on your home mortgage a bank needs to show that it owns the loan.

This is simple if the bank suing originated the loan. However, since most lenders sell their mortgage loans almost immediately after they are made, the new loan owner needs to show the court the original promissory note and an assignment.

We have noticed a disturbing trend in which the loan is not properly transferred to the new owner or the transfer occurs after the lawsuit is filed which makes the case subject to dismissal.

For example, in the famous case of Jeff Ray Corp. vs. Jacobson, 566 So. 2d 885, (Fla. 4th DCA 1990) the appeals court ruled that an assignment that occurs after the foreclosure suit is started must be dismissed.

What are some other legal issues in foreclosure cases?

In another famous case, Booker vs. Sarasota Inc. 707 So. 2nd 886 (1st DCA, 1998) the appellate court ruled the Defendant is entitled to a trial on the issue of whether the Plaintiff owned and held the note at the time the case was filed, even though the Plaintiff presented the note to the court.

The court went on to find that an “allonge” attached to the complaint showed an assignment of the note by an institution other than the loan originator. As a result, there was a question as to the chain of title regarding the note and the court denied the Plaintiff’s Motion for Summary Judgment and required the case to be tried in a full trial.

Bottom line? Have a lawyer review your foreclosure case paperwork. There may be something wrong that will allow you to have a legal defense in your case.

What are the three scenarios that a person facing foreclosure might face?

Most borrowers who fall behind on their mortgage fall into one of three categories:

Homeowner #1: This homeowner misses a few payments but the value of the house is more than the balance owed on the mortgage.  The homeowner has enough money to make up the missed payments. This person should stay in his house, make up the missed payments and continue to make payments in a normal way thereafter.

Homeowner #2: This homeowner is in a house that is “upside down”- the value of the house is much less than the balance on the loan. He is having trouble making payments on the loan which caries a high interest rate.  The homeowner has a good paying job.

This person should probably renegotiate the loan to lower the interest rate and attempt to lower the amount of the principal. If, after the modification, the house is no longer “underwater” and the interest rate is lower this homeowner may be able to stay in the home.

Homeowner #3: This homeowner lost his job. His house is worth hundreds of thousands of dollars less than the balance of the loan. The loan is an “ARM” –adjustable rate mortgage- and is subject to an interest rate increase in the next few months.

This person also has little money saved and is afraid of spending money on mortgage payments that are needed for food and other necessities. The bank has threatened foreclosure.

This homeowner should probably accept the fact that the house may be lost in a foreclosure. However, he should seek legal counsel to see if there are legal defenses that could be raised to buy some time to find another place to live or possibly renegotiate the loan with a lower principal balance.

Practice hint: In general you should not “spend down” all of your savings on mortgage payments if you don’t have a reserve to pay for food and necessities.

Do you own a corporation such as an S-Corp? If so, watch out for filing deadlines with the IRS

There are strict deadlines for filing State and Federal tax forms. These deadlines are being enforced. These rules apply corporations and other legal entities.

Some of the forms a small business owner should be aware of include form UCT-6 (Unemployment Tax), form 941 (Federal Employment Tax) and form 940 (Federal Unemployment Tax).

Typically you must file these forms within 30 days of an end of a quarter to avoid a penalty. Also, Federal Income Tax Form 1120S must be filed by March 31, 2010 for the 2009 year in order to avoid penalties.

The IRS is enforcing these penalties so you have been warned: if you have a corporation make sure you file all of your tax forms on time.

Credit Card Update:

If you have a credit card dispute you must tell your bank within 60 days or you cannot dispute the charge. You should keep all your invoices and other documentation in case of a dispute over the charge.

If you disagree with a charge on your card, object to the charge in writing to your bank within 60 days of the day of the charge.
How does the new law called the “Protecting Tenants Act” and how does it affect Writs of Possession?

A Writ of Possession is a legal document that allows the Sheriff to take possession of a residence.  This often happens after a foreclosure sale on the courthouse steps.

Under a recent change in the law, before a Writ of Possession can be issued, the party requesting the Writ must file a motion that includes a certification regarding the status of tenants on the property.

If there are no tenants other than the foreclosed homeowner’s family the lawyer should file a certification of no tenants. On the other hand if there are tenants, a Certification of Notice to Tenants must be provided to

the tenants and the court along with a Notice required by the Federal Protecting Tenants in Foreclosure Act.

The Notice to Tenants requires a hearing whereby a tenant can object to the issuance of the Writ.

Also, under the new law, the new owners of the property must honor any existing lease or, at the least, give 90 days notice to the tenants to vacate the property.

Credit Card rules for bankers have changed dramatically.

Under the Credit Card Accountability, Responsibility and Disclosure Act banks must apply payments to higher rate balances first. The law also restricts a bank’s right to raise interest rates on credit cards.

Banks will also be banned from using “universal defaults” – (declaring a card in default because another card from another bank has been defaulted upon) as a reason for declaring your card in default.

A bank will no longer be allowed to raise the interest rate on your credit card because of a missed payment from another lender. These changes will take affect on February 22, 2010.

What is the death tax and when did it expire?

The death tax is a U.S. Federal tax imposed on property owned by a person who dies. The tax applies to the dead person’s homestead, insurance policies, 401k plans and other assets owned at the time of death.

The death tax rate is zero (0%) in 2010!

However, on January 1, 2011 the tax will soar to 55% on all assets in excess of $1,000,000.
Many experts expect that the U.S. Congress will amend the law sometime during 2010 to impose a tax on estates greater than five (5) million Dollars.

For now, if your estate including the value of your home, properties, investments, and other assets exceeds one million dollars ($1,000,000), prepare to have your heirs pay an enormous tax when you die.

What is insolvency?

Insolvency simply means that the value of your assets is less than the value of your liabilities.

For example if your house is worth $100,000.00 and you owe $150,000.00 in credit cards, car loans and

mortgages, you are insolvent to the extent of $50,000.00.

Insolvency is important because if a creditor writes off a debt, you normally owe income tax on the amount written off. However, if you file form 982 with the IRS at the time that you file your U.S. income tax return you may not owe income tax on the debt that is forgiven to the extent that you are insolvent.

See a professional if this is your situation and remember, the receipt of a form 1099C for Forgiveness of Indebtedness does not necessarily mean that you owe income tax on the cancelled debt.

2010 is the year to get your financial affairs in order. Some of the things you need to do are as follows:

1. Write your will.

2. Put a list of all your passwords with your will so that your heirs can cancel your electronic accounts to Facebook, your email account and other accounts.

3. Make a list of all your properties and financial assets and keep the list with your will.

4. Make sure that your living will and durable family power of attorney are in order.

5. Have a conversation with the person you have named in these documents and tell her where you keep your will and other important documents.

                    FEES FOR SERVICES for 2010

General Legal Advice - $125 (for the first consultation)

Last Will & Testament - $350

Durable Family Powers of Attorney - $125

Uncontested Divorce - $3,000 plus costs

Contested Divorce - $300 an hour

General Litigation & Legal Work - $300 an hour

Personal Injury – Percentage of Recovery plus costs