While divorcing couples frequently carry credit card debt, often little attention is paid to these debts beyond their being assigned to one spouse or the other in the divorce judgment attorney staten island.
Care must be taken that a spouse will not be held responsible for additional credit card debts incurred by the other, and that each spouse is protected to the maximum extent possible if the other fails to make payments and ultimately to pay off their share of any joint credit card debt.
Remember: Creditors are not obligated to respect the terms of your divorce judgment attorney staten island.
Assigning Responsibilty for Credit Card Debt
Often the parties to a divorce will assign to each spouse the responsibility for specific credit cards and their associated debt. To help ensure that all joint debts are identified, including any credit cards which may have been taken out by one spouse without the other's knowledge, it may be beneficial to get copies of the credit reports of the divorcing couple, and to make sure that the debt from any creditor not paid off in full is assigned to one spouse or the other.
Cutting Off Your Liability For Additional Debt
When you divorce attorney staten island, you should make sure that you either close any joint credit cards, or that at a minimum you have your name removed from any joint accounts which will continue to be used by your spouse. This will not end your liability for debts incurred up to that point, but should end your responsibility for any new debts incurred on those accounts by your spouse.
Similarly, if you hold any accounts in your own name for which your spouse is an authorized signer, you should revoke the authorization.
Saturday, March 20, 2010
Family Law
Family law attorney staten island issues usually arise in the context of divorce proceedings, child custody disputes, and child protective proceedings. Child protective proceedings arise when the state, acting to protect minor children, attempts to place children into foster care, or to terminate parental rights and to place the children for adoption.
When you are filing for divorce, or if a divorce has been filed against you, you will find that there are a wide range of attorneys who practice family law, and that the fees can vary enormously between law offices. The cheapest attorney is rarely the best, but in an amicable divorce you may find that all you really need is an attorney who won't stand in your way while you negotiate a settlement. You usually will not need to spend a lot on legal fees if you are in agreement on custody and property issues.
When there are disagreements, choose your attorney staten island carefully. If possible, get references from people you know who have recently divorced. As family law is very stressful, a great many attorneys do not practice in the area, and as a consequence it is relatively easy for attorneys with little skill or experience to develop a family law practice. While the most expensive option is not necessarily the best, when faced with contested divorce or custody litigation there is some truth to the old saying, "You get what you pay for." If you try to save money by hiring the cheapest attorney you can find, you may well learn that you gave up more in property, spousal support, or rights to retirement benefits than you "saved" by hiring the wrong lawyer for your case.
Most people do not need to hire the "best" divorce attorneys staten island, or the most expensive. However, if you have a large marital estate, if you have issues of abuse or domestic violence, if the marital estate includes a family business, stock options, or shares in a "closely held" corporation, or if there are other factors which will complicate the evaluation of your fair share of the marital estate, you should consider a specialist.
When you are filing for divorce, or if a divorce has been filed against you, you will find that there are a wide range of attorneys who practice family law, and that the fees can vary enormously between law offices. The cheapest attorney is rarely the best, but in an amicable divorce you may find that all you really need is an attorney who won't stand in your way while you negotiate a settlement. You usually will not need to spend a lot on legal fees if you are in agreement on custody and property issues.
When there are disagreements, choose your attorney staten island carefully. If possible, get references from people you know who have recently divorced. As family law is very stressful, a great many attorneys do not practice in the area, and as a consequence it is relatively easy for attorneys with little skill or experience to develop a family law practice. While the most expensive option is not necessarily the best, when faced with contested divorce or custody litigation there is some truth to the old saying, "You get what you pay for." If you try to save money by hiring the cheapest attorney you can find, you may well learn that you gave up more in property, spousal support, or rights to retirement benefits than you "saved" by hiring the wrong lawyer for your case.
Most people do not need to hire the "best" divorce attorneys staten island, or the most expensive. However, if you have a large marital estate, if you have issues of abuse or domestic violence, if the marital estate includes a family business, stock options, or shares in a "closely held" corporation, or if there are other factors which will complicate the evaluation of your fair share of the marital estate, you should consider a specialist.
False Child Abuse Accusations
The rise of false accusations of abuse in child custody proceedings attorney staten island is very disturbing. Courts often choose to "err on the side of caution," and refuse to grant custody to the accused parent. Sometimes, the accused parent cannot even obtain parenting time (child visitation), even after investigation finds no evidence of abuse.
Making a false abuse allegation is a horrible thing to do to a child. The child will often have to undergo unnecessary and intrustive medical and psychological examinations. If the allegations are of sexual abuse, the physical examinations of the child can be extremely embarrassing to the child. Also, depending upon the circumstances and the age of the child, the false accusations can cause a permanent rift between the child and the accused parent, the accusing parent, or both.
Historically, parents who complained of false accusations were ignored. However, recent studies illustrate how common false allegations are. In Ontario, an analysis of child abuse allegations attorney staten island in the Ottawa area revealed that 60% of accusations of abuse were related to marital breakup, and in two thirds of those cases there was no evidence of any abuse.
It is no longer professionally reasonable for a psychologist to presume the truth of abuse allegations made in the context of divorce. The irresponsibility of parents who make false accusations to hurt their spouse, or to stop a child custody action attorney staten island, has caused grave harm to children who actually are abused -- the significant numbers of false allegations make it less likely that true allegations will be believed.
Making a false abuse allegation is a horrible thing to do to a child. The child will often have to undergo unnecessary and intrustive medical and psychological examinations. If the allegations are of sexual abuse, the physical examinations of the child can be extremely embarrassing to the child. Also, depending upon the circumstances and the age of the child, the false accusations can cause a permanent rift between the child and the accused parent, the accusing parent, or both.
Historically, parents who complained of false accusations were ignored. However, recent studies illustrate how common false allegations are. In Ontario, an analysis of child abuse allegations attorney staten island in the Ottawa area revealed that 60% of accusations of abuse were related to marital breakup, and in two thirds of those cases there was no evidence of any abuse.
It is no longer professionally reasonable for a psychologist to presume the truth of abuse allegations made in the context of divorce. The irresponsibility of parents who make false accusations to hurt their spouse, or to stop a child custody action attorney staten island, has caused grave harm to children who actually are abused -- the significant numbers of false allegations make it less likely that true allegations will be believed.
Child Protective Law
If you are a parent, and are involved in child protective proceedings attorney staten island, you have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you.
If you are involved in child protective proceedings, exercise your right to counsel. Please do not assume that you can adequately represent yourself, or that the system is designed to protect your rights. You will be consistently warned throughout proceedings that you could face the permanent loss of your children as a result of the proceedings. That is no joke -- get a lawyer.
Be forewarned that litigation in this area can be expensive -- but remember that your family is at stake.
Defending Yourself
Typically, your best ability to defend agains this type of proceeding will be in its initial stages. This is when many people try to proceed without lawyers staten island, under the belief that if they consent to the court's taking jurisdiction over their children they will somehow improve their chances of securing the return of their children. The reality is usually quite different. Involving a competent lawyer at the start of legal proceedings can help ensure that your rights are protected, and may even result in the return of your children to your home.
Reforms in the 1990's have led to a system of laws in the United States that place a very high priority on permanence. If children have spent a year in foster care, courts and social workers are under considerable pressure to bring about a final resolution of their cases. At that time, if the parents are not ready to assume their responsibilities, or have not lived up to the court's demands upon them, it is likely that a proceeding will follow to permanently terminate parental rights.
While parents have a right to appeal from the termination of parental rights attorney staten island, it is rare for appellate courts to grant relief. Thus it bears repeating, you are best served by obtaining quality representation at the trial court level, at the earliest possible opportunity.
Effect on the Extended Family
When a relative's parental rights are terminated, the extended family's rights are terminated as well. If you have a relative whose children are at risk of being taken from their home, you should consult with an attorney in your state about possible options which might protect your relationship with the children. That may involve convincing the relative to voluntarily let you care for the children for a period of time while they get their act together. If the relative won't cooperate, it may involve petitioning a court for a guardianship over the children, giving you the right to care for the children until the parents remedy the problems in their home, but without the risk of the state terminating parental rights.
If you are involved in child protective proceedings, exercise your right to counsel. Please do not assume that you can adequately represent yourself, or that the system is designed to protect your rights. You will be consistently warned throughout proceedings that you could face the permanent loss of your children as a result of the proceedings. That is no joke -- get a lawyer.
Be forewarned that litigation in this area can be expensive -- but remember that your family is at stake.
Defending Yourself
Typically, your best ability to defend agains this type of proceeding will be in its initial stages. This is when many people try to proceed without lawyers staten island, under the belief that if they consent to the court's taking jurisdiction over their children they will somehow improve their chances of securing the return of their children. The reality is usually quite different. Involving a competent lawyer at the start of legal proceedings can help ensure that your rights are protected, and may even result in the return of your children to your home.
Reforms in the 1990's have led to a system of laws in the United States that place a very high priority on permanence. If children have spent a year in foster care, courts and social workers are under considerable pressure to bring about a final resolution of their cases. At that time, if the parents are not ready to assume their responsibilities, or have not lived up to the court's demands upon them, it is likely that a proceeding will follow to permanently terminate parental rights.
While parents have a right to appeal from the termination of parental rights attorney staten island, it is rare for appellate courts to grant relief. Thus it bears repeating, you are best served by obtaining quality representation at the trial court level, at the earliest possible opportunity.
Effect on the Extended Family
When a relative's parental rights are terminated, the extended family's rights are terminated as well. If you have a relative whose children are at risk of being taken from their home, you should consult with an attorney in your state about possible options which might protect your relationship with the children. That may involve convincing the relative to voluntarily let you care for the children for a period of time while they get their act together. If the relative won't cooperate, it may involve petitioning a court for a guardianship over the children, giving you the right to care for the children until the parents remedy the problems in their home, but without the risk of the state terminating parental rights.
Battered Woman Syndrome
Battered woman syndrome attorney staten island (BWS) was first proposed in the 1970's and was essentially based on the clinical observations of a single researcher. Nevertheless, the concept quickly caught on and became a popular way to justify behavior in some courts. However, while it initially enjoyed success in portions of the legal arena, BWS has not been established nor accepted in the field of psychology by serious and rigorous empirical researchers.
To be sure, clinical syndromes do exist, and BWS may indeed exist, but to date there is insufficient empirical evidence to show this syndrome meets the rigorous diagnostic criteria of psychology or the law. If BWS does exist, there is no reliable means to identify those who suffer from it from those who merely claim it as a legal defense.
BWS appears to be the product of legal advocacy and not science. BWS seems to owe its existence to the needs of legal attorneys staten island to support and justify claims by battered women who have killed. Given the lack of an established, empirical, scientific basis and its failure to achieve specific political and social policy goals for women, BWS may not be long for this world.
BWS has been employed in a wide assortment of cases, ranging from the prototypical self-defense case to the more novel prosecutorial use of the syndrome. In the former set of cases, courts define the syndrome's relevance variously, from supporting the honesty of the woman's belief in the need to use deadly force to her mental incapacity to form the requisite mental intent. In the latter set of cases, in which prosecutors use the evidence, the evidence's relevance is ostensibly offered to explain why a battered woman might change her testimony (i.e., commit perjury) and testify that she was not a victim of battering; in fact, BWS is probably used to buttress the prosecution's case by showing prior violent acts by the defendant that would otherwise be excluded by the rules of evidence.
BWS attorney staten island offers broad interpretations of conduct for which there is no empirical support. As courts begin to apply Daubert styled tests of admissibility that query the scientific basis for BWS testimony, they will discover the serious lack of scientific support for BWS. There are numerous non-specific signs that a clinician favorably biased towards BWS will "see" in the reports of a woman relating a history of battering. Such clinicians are quick to then label the clinical history as causing BWS, and the BWS as justifying or explaining the woman's subsequent unlawful conduct. The clinical error or trap lies in the fact that these signs are commonly seen in a variety of conditions, and none are specifically tied to BWS. Further, the patient can simply lie about or exaggerate their abusive history with a host of non-specific signs. There is a human tendency to accept ready explanations and BWS offers just that. This unreliable manner leads to inaccurate diagnosis. A principal tenant of science is there must first be reliability, and absent this, there can be no validity, that is, no trustworthy diagnosis. So, how can anyone determine who does and who does not suffer with BWS? The simple answer is, we cannot.
To be sure, clinical syndromes do exist, and BWS may indeed exist, but to date there is insufficient empirical evidence to show this syndrome meets the rigorous diagnostic criteria of psychology or the law. If BWS does exist, there is no reliable means to identify those who suffer from it from those who merely claim it as a legal defense.
BWS appears to be the product of legal advocacy and not science. BWS seems to owe its existence to the needs of legal attorneys staten island to support and justify claims by battered women who have killed. Given the lack of an established, empirical, scientific basis and its failure to achieve specific political and social policy goals for women, BWS may not be long for this world.
BWS has been employed in a wide assortment of cases, ranging from the prototypical self-defense case to the more novel prosecutorial use of the syndrome. In the former set of cases, courts define the syndrome's relevance variously, from supporting the honesty of the woman's belief in the need to use deadly force to her mental incapacity to form the requisite mental intent. In the latter set of cases, in which prosecutors use the evidence, the evidence's relevance is ostensibly offered to explain why a battered woman might change her testimony (i.e., commit perjury) and testify that she was not a victim of battering; in fact, BWS is probably used to buttress the prosecution's case by showing prior violent acts by the defendant that would otherwise be excluded by the rules of evidence.
BWS attorney staten island offers broad interpretations of conduct for which there is no empirical support. As courts begin to apply Daubert styled tests of admissibility that query the scientific basis for BWS testimony, they will discover the serious lack of scientific support for BWS. There are numerous non-specific signs that a clinician favorably biased towards BWS will "see" in the reports of a woman relating a history of battering. Such clinicians are quick to then label the clinical history as causing BWS, and the BWS as justifying or explaining the woman's subsequent unlawful conduct. The clinical error or trap lies in the fact that these signs are commonly seen in a variety of conditions, and none are specifically tied to BWS. Further, the patient can simply lie about or exaggerate their abusive history with a host of non-specific signs. There is a human tendency to accept ready explanations and BWS offers just that. This unreliable manner leads to inaccurate diagnosis. A principal tenant of science is there must first be reliability, and absent this, there can be no validity, that is, no trustworthy diagnosis. So, how can anyone determine who does and who does not suffer with BWS? The simple answer is, we cannot.
Before You Get Married
At common law, a marriage was created as the result of a voluntary agreement between a man and a woman to become husband and wife, without the necessity of certification by the church or the state.
Today, marriage law attorney staten island is usually regulated by nations or states, with rights and duties imposed by statute.
At present, most jurisdictions will permit marriage only between a man and a woman, and will not permit either to have multiple spouses. A legal marriage can be ended by death, divorce, or annulment.
Before You Get Married
Before you set your wedding date, it is important to learn the requirements for getting married in your jurisdiction. Usually the requirements will be made clear to you when you apply for a marriage license attorney staten island. Possible issues that may arise include:
•Blood Tests - some jurisdictions require blood tests for common sexually transmitted disease, before they will issue a marriage license;
•Pre-Marital Counseling - some jurisdictions mandate attendance at a counseling session, or a video presentation, meant to introduce some of the issues that a newly married couple might face, or counsel on avoidance of sexually transmitted disease;
•Age Requirements - if one or both would-be spouses are minors, it may be necessary to obtain parental permission before a marriage can proceed. If one or both would-be spouses are very young, typically below the age of 16, it may be necessary to also obtain approval from a judge. Typically, the marriage of a minor has the same effect as legal emancipation.
•Prohibited Marriage - almost all jurisdictions restrict who can get married, so as to prevent unions between close relatives. Sometimes these laws also extend to in-laws and step-relatives. Similarly, western jurisdictions prohibit marriage where one spouse is already married - and will hold a marriage invalid even if that spouse mistakenly thought that a prior marriage had been ended by divorce or annulment.
•Marriage License - for formal marriage, a marriage license is required. There is usually a modest license fee.
•Certificate of Marriage - At the time of the wedding ceremony, the person who performs the ceremony will ordinarily complete a certificate of marriage attorney staten island, which is signed by witnesses to the marriage, and which is filed with the state to record the completion of the marriage. In some jurisdictions the certificate of marriage is incorporated into the marriage license.
Today, marriage law attorney staten island is usually regulated by nations or states, with rights and duties imposed by statute.
At present, most jurisdictions will permit marriage only between a man and a woman, and will not permit either to have multiple spouses. A legal marriage can be ended by death, divorce, or annulment.
Before You Get Married
Before you set your wedding date, it is important to learn the requirements for getting married in your jurisdiction. Usually the requirements will be made clear to you when you apply for a marriage license attorney staten island. Possible issues that may arise include:
•Blood Tests - some jurisdictions require blood tests for common sexually transmitted disease, before they will issue a marriage license;
•Pre-Marital Counseling - some jurisdictions mandate attendance at a counseling session, or a video presentation, meant to introduce some of the issues that a newly married couple might face, or counsel on avoidance of sexually transmitted disease;
•Age Requirements - if one or both would-be spouses are minors, it may be necessary to obtain parental permission before a marriage can proceed. If one or both would-be spouses are very young, typically below the age of 16, it may be necessary to also obtain approval from a judge. Typically, the marriage of a minor has the same effect as legal emancipation.
•Prohibited Marriage - almost all jurisdictions restrict who can get married, so as to prevent unions between close relatives. Sometimes these laws also extend to in-laws and step-relatives. Similarly, western jurisdictions prohibit marriage where one spouse is already married - and will hold a marriage invalid even if that spouse mistakenly thought that a prior marriage had been ended by divorce or annulment.
•Marriage License - for formal marriage, a marriage license is required. There is usually a modest license fee.
•Certificate of Marriage - At the time of the wedding ceremony, the person who performs the ceremony will ordinarily complete a certificate of marriage attorney staten island, which is signed by witnesses to the marriage, and which is filed with the state to record the completion of the marriage. In some jurisdictions the certificate of marriage is incorporated into the marriage license.
Important Considerations for Legal Separation
•If your separation later turns into a divorce, the manner in which you have divided your personal property may well be the manner in which that property becomes divided for the purposes of the divorce. That is, it is not unusual for a divorce settlement attorney staten island or judgment to award separated parties the personal property that is in their own possession. If there are important belongings that, for one reason or another, you will leave with your spouse upon separation, you may wish to make specific note in your separation agreement that both you and your spouse intend that property to come to you in the event of divorce.
•If you contract for the division of property in your separation agreement, that contract will likely be binding upon you in the event of divorce. For example, if your separation agreement assigns the marital home to one spouse, and details how the equity will eventually be divided, absent a new agreement by both spouses it is likely that you will be bound by that earlier agreement upon divorce attorney staten island.
•Insurance companies make money when they deny claims. If you are separating for the purpose of maintaining insurance coverage which would terminate upon divorce, check the policy language carefully. Some insurance companies are now including language which will cause coverage to lapse in the event of a legal separation.
•Remember that separated couples remain married to each other. If you expect that you will wish to remarry, you will ultimately have to go to court to obtain a divorce.
•Remember to separate your finances. Ordinarily, the money in a joint bank account belongs to both people named on the account. That is, if you are placing money into the account, your spouse may have a legal right to withdraw all of that money even if you are separated. If your name appears on a lease or mortgage for the residence where your spouse will live, you will remain liable for payments. Similarly, if you continue to share joint credit accounts, including credit cards, or your name appears on any utility bills (phone, gas, electrical, etc.) you will ordinarily be liable for any debt incurred by your spouse even after separation. It is thus wise to separate your finances, and to obtain credit cards and bank accounts in the individual names of each spouse, as part of the separation process.
•Where pensions or government benefits are involved, it makes sense to consult with an accountant in relation to your financial situation as part of a legal separation attorney staten island, so as to make sure that you meet all of the necessary legal requirements to maintain your interest in those benefits
•If you contract for the division of property in your separation agreement, that contract will likely be binding upon you in the event of divorce. For example, if your separation agreement assigns the marital home to one spouse, and details how the equity will eventually be divided, absent a new agreement by both spouses it is likely that you will be bound by that earlier agreement upon divorce attorney staten island.
•Insurance companies make money when they deny claims. If you are separating for the purpose of maintaining insurance coverage which would terminate upon divorce, check the policy language carefully. Some insurance companies are now including language which will cause coverage to lapse in the event of a legal separation.
•Remember that separated couples remain married to each other. If you expect that you will wish to remarry, you will ultimately have to go to court to obtain a divorce.
•Remember to separate your finances. Ordinarily, the money in a joint bank account belongs to both people named on the account. That is, if you are placing money into the account, your spouse may have a legal right to withdraw all of that money even if you are separated. If your name appears on a lease or mortgage for the residence where your spouse will live, you will remain liable for payments. Similarly, if you continue to share joint credit accounts, including credit cards, or your name appears on any utility bills (phone, gas, electrical, etc.) you will ordinarily be liable for any debt incurred by your spouse even after separation. It is thus wise to separate your finances, and to obtain credit cards and bank accounts in the individual names of each spouse, as part of the separation process.
•Where pensions or government benefits are involved, it makes sense to consult with an accountant in relation to your financial situation as part of a legal separation attorney staten island, so as to make sure that you meet all of the necessary legal requirements to maintain your interest in those benefits
Why Get a Legal Separation?
Why People Seek Legal Separation attorney staten island
The reasons people ask about separation as opposed to divorce include:
•Religious Concerns - they may have a religious objection to divorce;
•Insurance Concerns - they may wish to ensure that one of the spouses has continued coverage through the other spouse's insurance provider;
•Trial Separation - they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;
•Divorce Waiting Periods - they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce attorney staten island;
•Tax Purposes - Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;
•Social Security and Pension Benefits - Sometimes spouses will wish to delay formal divorce attorney staten island until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits
The reasons people ask about separation as opposed to divorce include:
•Religious Concerns - they may have a religious objection to divorce;
•Insurance Concerns - they may wish to ensure that one of the spouses has continued coverage through the other spouse's insurance provider;
•Trial Separation - they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;
•Divorce Waiting Periods - they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce attorney staten island;
•Tax Purposes - Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;
•Social Security and Pension Benefits - Sometimes spouses will wish to delay formal divorce attorney staten island until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits
Legal Separations
Sometimes, when a divorce seems imminent, a married couple inquires about the possibility of "legal separation". Some states refer to legal separation attorney staten island by other names, such as "separate maintenance".
"Separation" versus "Legal Separation"
Usually, when people use the term "legal separation attorney staten island", they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony).
Typically, a court will have the power to resolve as part of a "legal separation" any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married.
Also, most jurisdictions require a waiting or "cooling off" period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of "legal separation attorney Staten Island or "separate maintenance".
It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek the assistance of a lawyer in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.
"Separation" versus "Legal Separation"
Usually, when people use the term "legal separation attorney staten island", they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony).
Typically, a court will have the power to resolve as part of a "legal separation" any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married.
Also, most jurisdictions require a waiting or "cooling off" period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of "legal separation attorney Staten Island or "separate maintenance".
It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek the assistance of a lawyer in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.
Monday, March 8, 2010
Predatory Lending
Lending can become predatory when aggressive tactics are used to convince a borrower to agree to unfair or abusive loan terms and conditions. Although there is no single definition for predatory lending, it generally occurs when a lending company, broker, or even home improvement contractor takes undue advantage of borrowers by deception, fraud, or manipulation.
Predatory lenders charge excessive fees, interest rates, and pre-payment penalties and often require balloon payments. Frequently, lending decisions are made without considering the borrower's ability to repay, and predatory lenders may permit repeated refinancing over a short period of time without any economic gain for the borrower.
Although predatory lending occurs across various demographic groups, predatory terms are often targeted at the elderly, minorities, and low-income homeowners. Victims of predatory lending practices often face financial crisis, including bankruptcy and home foreclosure, as a result of the deceptive conduct.
Anti-Predatory Lending Laws
Several laws are designed to protect consumers against predatory/abusive lending practices. On the federal level, the Truth in Lending Act (TILA) requires lenders to disclose the APR and loan terms, and the Home Ownership and Equity Protection Act, which is an amendment to TILA was specifically designed to identify predatory mortgage loans. In addition, other consumer protection laws such as the Federal Trade Commission Act (FTC Act), have provisions that deter predatory lending practices.
Moreover, many states have their own anti-predatory laws that are designed to address abusive mortgage lending by restricting the terms or provisions of certain loans. In addition, states have increased the registration or licensing requirements of mortgage brokers and mortgage lenders and have undertaken enforcement activities under existing consumer protection laws and regulations to combat abusive lending.
Numerous federal, state, and non-profit agencies offer assistance for victims of predatory lending practices, including the U.S. Department of Justice, Housing and Urban Development (HUD), state and local consumer protection agencies, state attorney general's office, debt counseling agencies, consumer protection agencies and other nonprofit organizations such as the AARP.
Are you a Victim of Predatory Lending?
Before borrowing money, particularly where your house is used for collateral, read all terms and conditions of the loan carefully and honestly evaluate your ability to repay the loan. Refuse to go through with a lending transaction if you can't afford the repayment plan, if the number of "points" (up-front interest) on the loan is high, or if the terms are changed at the last moment. If you have entered into a loan agreement with terms and conditions that appear predatory, it is important to act quickly to reduce the risk of harm. For certain transactions, you may have the right to rescind the loan if you act within 3 days of signing the agreement. Otherwise, you may need to take additional steps to manage your finances and protect your home against foreclosure.
Victims of predatory lending practices should report any predatory activity to appropriate federal, state, and local agencies. If your loan problem relates to an FHA mortgage origination, underwriting, appraisals or foreclosures, you can seek assistance from HUD National Servicing Center. For non-FHA mortgage problems, including non-disclosure of interest rates and finance charges, prepayment penalties, credit life insurance, fraud, deception, etc., you should contact the appropriate agency to file a complaint against the lender.
Predatory lenders charge excessive fees, interest rates, and pre-payment penalties and often require balloon payments. Frequently, lending decisions are made without considering the borrower's ability to repay, and predatory lenders may permit repeated refinancing over a short period of time without any economic gain for the borrower.
Although predatory lending occurs across various demographic groups, predatory terms are often targeted at the elderly, minorities, and low-income homeowners. Victims of predatory lending practices often face financial crisis, including bankruptcy and home foreclosure, as a result of the deceptive conduct.
Anti-Predatory Lending Laws
Several laws are designed to protect consumers against predatory/abusive lending practices. On the federal level, the Truth in Lending Act (TILA) requires lenders to disclose the APR and loan terms, and the Home Ownership and Equity Protection Act, which is an amendment to TILA was specifically designed to identify predatory mortgage loans. In addition, other consumer protection laws such as the Federal Trade Commission Act (FTC Act), have provisions that deter predatory lending practices.
Moreover, many states have their own anti-predatory laws that are designed to address abusive mortgage lending by restricting the terms or provisions of certain loans. In addition, states have increased the registration or licensing requirements of mortgage brokers and mortgage lenders and have undertaken enforcement activities under existing consumer protection laws and regulations to combat abusive lending.
Numerous federal, state, and non-profit agencies offer assistance for victims of predatory lending practices, including the U.S. Department of Justice, Housing and Urban Development (HUD), state and local consumer protection agencies, state attorney general's office, debt counseling agencies, consumer protection agencies and other nonprofit organizations such as the AARP.
Are you a Victim of Predatory Lending?
Before borrowing money, particularly where your house is used for collateral, read all terms and conditions of the loan carefully and honestly evaluate your ability to repay the loan. Refuse to go through with a lending transaction if you can't afford the repayment plan, if the number of "points" (up-front interest) on the loan is high, or if the terms are changed at the last moment. If you have entered into a loan agreement with terms and conditions that appear predatory, it is important to act quickly to reduce the risk of harm. For certain transactions, you may have the right to rescind the loan if you act within 3 days of signing the agreement. Otherwise, you may need to take additional steps to manage your finances and protect your home against foreclosure.
Victims of predatory lending practices should report any predatory activity to appropriate federal, state, and local agencies. If your loan problem relates to an FHA mortgage origination, underwriting, appraisals or foreclosures, you can seek assistance from HUD National Servicing Center. For non-FHA mortgage problems, including non-disclosure of interest rates and finance charges, prepayment penalties, credit life insurance, fraud, deception, etc., you should contact the appropriate agency to file a complaint against the lender.
Surprise Closing Costs
Once the negotiations are over and a buyer and seller come to an agreement over the purchase price for a home (or any type of real estate, for that matter), a contract is signed, and it's time to close the deal. In almost all real estate transactions, there are expenses and fees associated with the closing, or "closing costs." Closing costs are usually charged by the buyer's lender the bank that gave the buyer a mortgage to pay for the home-and typically include charges for things like fees for:
•Processing the mortgage
•The title company's search to make sure that no one else claims to own the property and that there are no liens against it
•Recording the deed with the appropriate government office in the county where the land is located
Usually, the sales contract states that each party, the buyer and the seller, is required to pay their own closing costs. But, if you're not careful, you could end up paying some costs and expenses that you weren't anticipating. To avoid these surprise closing costs, you need to read the closing papers carefully, or make sure that you have an experienced real estate law attorney at the closing with you.
Surprise!
How would you react if you sold property under a contract that called for the buyer to pay all of his or her closing costs, waited a month for the buyer to get financing, and then at the closing, found out that you were being charged for things like:
•Tax Service Fee $55.50
•Inspection Fee $35.00
•Photos $15.00
•Lender's Inspection Fee $80.00
•Document Review Fee $25.00
•Lot Review $25.00
•Appraisal Inspection $50.00
•Filing Fee $50.00
All of these fees were charged to sellers in actual closing statements, even though the contract called for the buyers to pay them. You can, or course, protest the charges, but chances are that the closing or escrow agent, who usually doesn't represent either the buyer or seller, will say, "Oh, HUD (or FHA or VA) requires the seller to pay these charges."
Well, that's not necessarily right. In fact, neither the Federal Housing Administration (FHA) (or its parent organization, the U.S. Department of Housing and Urban Development (HUD)), nor the U.S. Department of Veterans Affairs (VA) requires the seller to pay anything. Nor do they have the authority to require payment.
To be accurate, the closing agent should tell you that these agencies don't allow these charges to be assessed against the buyer-borrower, but they allow them to be charged to the seller.
Plan of Action
What if the seller doesn't want to pay for these expenses, which the lender supposedly incurred in making a loan to the buyer, because he feels that the sales contract was negotiated in good faith? Typically, the seller has agreed to pay:
•The sales commission, if a real estate agent is involved
•The cost of preparing the deed
•Pest inspection and clearance letter
•A title search (sometimes)
•One-half of the reasonable and customary attorney's closing fee
Even these items are negotiable. The buyer could agree to pay any and all expenses involved with the transfer of ownership. But, the law requires nothing except that the sales contract:
•Be in writing
•Reflects the true intent of the parties
•Is signed by parties, who are "competent," that is, of legal age and sound mind
So, why, then, do we find even carefully negotiated and expressly written purchase agreements being flagrantly misapplied by some lenders? While the federal government requires that lenders provide the buyer with a "good faith estimate of closing costs" well before the closing date, the seller gets no such estimate until the closing. The real estate agent may offer an estimate, but usually doesn't know what, if any, hidden or ambiguous "fees and inspections" may be added later because there is no consistency among lenders regarding fees assessed to the seller.
In the end, you need to ask about closing costs and get a written estimate. Some lenders, and particularly mortgage companies, as opposed to banks and savings and loan companies, have discovered that most sellers are either simply naive about closing costs or aren't about to kill the sale at the last minute because of a couple hundred dollars in excess charges they're bullied into paying.
•Processing the mortgage
•The title company's search to make sure that no one else claims to own the property and that there are no liens against it
•Recording the deed with the appropriate government office in the county where the land is located
Usually, the sales contract states that each party, the buyer and the seller, is required to pay their own closing costs. But, if you're not careful, you could end up paying some costs and expenses that you weren't anticipating. To avoid these surprise closing costs, you need to read the closing papers carefully, or make sure that you have an experienced real estate law attorney at the closing with you.
Surprise!
How would you react if you sold property under a contract that called for the buyer to pay all of his or her closing costs, waited a month for the buyer to get financing, and then at the closing, found out that you were being charged for things like:
•Tax Service Fee $55.50
•Inspection Fee $35.00
•Photos $15.00
•Lender's Inspection Fee $80.00
•Document Review Fee $25.00
•Lot Review $25.00
•Appraisal Inspection $50.00
•Filing Fee $50.00
All of these fees were charged to sellers in actual closing statements, even though the contract called for the buyers to pay them. You can, or course, protest the charges, but chances are that the closing or escrow agent, who usually doesn't represent either the buyer or seller, will say, "Oh, HUD (or FHA or VA) requires the seller to pay these charges."
Well, that's not necessarily right. In fact, neither the Federal Housing Administration (FHA) (or its parent organization, the U.S. Department of Housing and Urban Development (HUD)), nor the U.S. Department of Veterans Affairs (VA) requires the seller to pay anything. Nor do they have the authority to require payment.
To be accurate, the closing agent should tell you that these agencies don't allow these charges to be assessed against the buyer-borrower, but they allow them to be charged to the seller.
Plan of Action
What if the seller doesn't want to pay for these expenses, which the lender supposedly incurred in making a loan to the buyer, because he feels that the sales contract was negotiated in good faith? Typically, the seller has agreed to pay:
•The sales commission, if a real estate agent is involved
•The cost of preparing the deed
•Pest inspection and clearance letter
•A title search (sometimes)
•One-half of the reasonable and customary attorney's closing fee
Even these items are negotiable. The buyer could agree to pay any and all expenses involved with the transfer of ownership. But, the law requires nothing except that the sales contract:
•Be in writing
•Reflects the true intent of the parties
•Is signed by parties, who are "competent," that is, of legal age and sound mind
So, why, then, do we find even carefully negotiated and expressly written purchase agreements being flagrantly misapplied by some lenders? While the federal government requires that lenders provide the buyer with a "good faith estimate of closing costs" well before the closing date, the seller gets no such estimate until the closing. The real estate agent may offer an estimate, but usually doesn't know what, if any, hidden or ambiguous "fees and inspections" may be added later because there is no consistency among lenders regarding fees assessed to the seller.
In the end, you need to ask about closing costs and get a written estimate. Some lenders, and particularly mortgage companies, as opposed to banks and savings and loan companies, have discovered that most sellers are either simply naive about closing costs or aren't about to kill the sale at the last minute because of a couple hundred dollars in excess charges they're bullied into paying.
Loan Modification Attorney Facts
For HAMP, your loan must be under $729,750. But to refinance the loan, it must be serviced by either Fannie Mae or Freddie Mac. If you are looking for a loan modification, you may still be entitled to get one through your lender, but must still qualify in other ways.
If you can't get a loan modification under HAMP, you can try to talk to your lender about doing a custom loan modification, but I have no idea if they'll be willing or able to do anything. You're essentially asking them to cut off a huge hunk of principal and they might just say no. In that case, your best option would be to simply hand over the house to the lender, or do a deed-in-lieu of foreclosure if you can no longer afford the payments.
You're right - until you miss a payment your lender will likely be unwilling to do anything. So you'll be stuck with a destroyed credit history and credit score no matter what.
While it shouldn’t be that way, and lenders should be willing to modify loans that are not delinquent but might become delinquent in the future, lenders are busy working on loans that are delinquent and may not see a need to work with a borrower that is current on his or her loan.
When it comes to HAMP modifications, the success rate has been rather dismal. From what I have heard, only about 5 percent of all temporary loan applications have gone on to become permanent and only about 10 percent of all applications have been approved as trial loan modifications. With those numbers, it may not make sense to pay someone to help you with the loan modification.
The paperwork involved for a loan modification is similar to the paperwork you would deliver to a lender if you were refinancing your loan. You would, however, also need to present a hardship letter outlining why you believe the lender should give you the loan modification based on your circumstances.
Most trial loan modifications reduce the amount of interest that the borrower is paying, thus lowering the interest rate. Generally, principal reductions are not being done, but lenders will do forbearance agreements, where you simply don’t make payments for a period of time.
If you can't get a loan modification under HAMP, you can try to talk to your lender about doing a custom loan modification, but I have no idea if they'll be willing or able to do anything. You're essentially asking them to cut off a huge hunk of principal and they might just say no. In that case, your best option would be to simply hand over the house to the lender, or do a deed-in-lieu of foreclosure if you can no longer afford the payments.
You're right - until you miss a payment your lender will likely be unwilling to do anything. So you'll be stuck with a destroyed credit history and credit score no matter what.
While it shouldn’t be that way, and lenders should be willing to modify loans that are not delinquent but might become delinquent in the future, lenders are busy working on loans that are delinquent and may not see a need to work with a borrower that is current on his or her loan.
When it comes to HAMP modifications, the success rate has been rather dismal. From what I have heard, only about 5 percent of all temporary loan applications have gone on to become permanent and only about 10 percent of all applications have been approved as trial loan modifications. With those numbers, it may not make sense to pay someone to help you with the loan modification.
The paperwork involved for a loan modification is similar to the paperwork you would deliver to a lender if you were refinancing your loan. You would, however, also need to present a hardship letter outlining why you believe the lender should give you the loan modification based on your circumstances.
Most trial loan modifications reduce the amount of interest that the borrower is paying, thus lowering the interest rate. Generally, principal reductions are not being done, but lenders will do forbearance agreements, where you simply don’t make payments for a period of time.
HOAs and Real Estate Attorneys
The point of mediation frequently is to avoid using attorneys and reduce costs. Even if you want an attorney present, some mediation rules may prevent you from having one with you to present your case.
You need to find out what the rules for the mediation are and what restrictions there are in using an attorney. If you find out that you can’t have a New York real estate attorney represent you, you might still want to talk to one to determine how you should proceed.
Make an appointment with the New York Real Estate Attorney attorney, bring your documents and listen to what he or she has to say about your situation. You should be able to use your time with the attorney to develop a strategy for the mediation and understand your rights and options.
If you don't know a good New York real estate attorney, you should contact your local bar association and ask for the head of the real estate committee. The person who chairs that committee will be a good real estate attorney and, more importantly, should be able to guide you to the best person for the situation.
If you decide not to use a real estate attorney, you should learn as much as you can about your issue. Determine where exactly the fence is located and read the documents that govern your homeowner’s association to determine what rules those rules. Once you’ve done your homework, you should be in a better place going into the mediation.
You need to find out what the rules for the mediation are and what restrictions there are in using an attorney. If you find out that you can’t have a New York real estate attorney represent you, you might still want to talk to one to determine how you should proceed.
Make an appointment with the New York Real Estate Attorney attorney, bring your documents and listen to what he or she has to say about your situation. You should be able to use your time with the attorney to develop a strategy for the mediation and understand your rights and options.
If you don't know a good New York real estate attorney, you should contact your local bar association and ask for the head of the real estate committee. The person who chairs that committee will be a good real estate attorney and, more importantly, should be able to guide you to the best person for the situation.
If you decide not to use a real estate attorney, you should learn as much as you can about your issue. Determine where exactly the fence is located and read the documents that govern your homeowner’s association to determine what rules those rules. Once you’ve done your homework, you should be in a better place going into the mediation.
When to Use a Real Estate Attorney
Who needs a real estate attorney when you have a real estate agent working for you, right? Wrong! agents can be very helpful in showing you where to find the perfect home or selling the one you no longer need, but they are not attorneys.
Any time someone signs their name to a legally binding document, they should have an attorney look it over first. Once you sign your name on the dotted line of a contract, you are legally bound to it. Protect yourself by having a legal expert take a look at it first.
If you are buying a house, the New York real estate attorney will be able to do the following:
* They will advise you on the title documents and the best way to hold title of the property.
* They will make certain that you fully understand the sales contract and what it entails.
* They can look over mortgage terms, insurance liability and taxes. If a few more people had used real estate attorneys before they ended up with damaging hybrid mortgage arrangements, perhaps our country wouldn't be experiencing the current high rates of foreclosure.
* They will make sure that there are no problems with the title insurance
* They may attend the closing to scrutinize all paperwork before you sign it.
* If you are having a home built rather than purchasing an existing home, there are even more details that require an attorney's eye for details. The contract for a home being built is quite complex and includes deadlines, building material stipulations, zoning laws, etc.
If you are selling a house, the attorney will be able to do the following:
* Make sure the sales contract covers all details to protect you.
* Arrange for title and insurance certificates, if necessary.
* Attend the closing to look over documents, if necessary.
New York Real estate attorneys are well versed in federal, state and local laws and how they pertain to the buying and selling of property. They are able to help with other property issues, as well. They can advise a homeowner who is facing foreclosure or is involved with a property line dispute with a neighbor.
A real estate agent is helpful, indeed. But realtors are making a commission from a home being sold so they have their own agenda. A real estate attorney's agenda is to provide his or her client with protection. Don't you want one on your side when you are signing off on some of the largest financial transactions of your lifetime?
Any time someone signs their name to a legally binding document, they should have an attorney look it over first. Once you sign your name on the dotted line of a contract, you are legally bound to it. Protect yourself by having a legal expert take a look at it first.
If you are buying a house, the New York real estate attorney will be able to do the following:
* They will advise you on the title documents and the best way to hold title of the property.
* They will make certain that you fully understand the sales contract and what it entails.
* They can look over mortgage terms, insurance liability and taxes. If a few more people had used real estate attorneys before they ended up with damaging hybrid mortgage arrangements, perhaps our country wouldn't be experiencing the current high rates of foreclosure.
* They will make sure that there are no problems with the title insurance
* They may attend the closing to scrutinize all paperwork before you sign it.
* If you are having a home built rather than purchasing an existing home, there are even more details that require an attorney's eye for details. The contract for a home being built is quite complex and includes deadlines, building material stipulations, zoning laws, etc.
If you are selling a house, the attorney will be able to do the following:
* Make sure the sales contract covers all details to protect you.
* Arrange for title and insurance certificates, if necessary.
* Attend the closing to look over documents, if necessary.
New York Real estate attorneys are well versed in federal, state and local laws and how they pertain to the buying and selling of property. They are able to help with other property issues, as well. They can advise a homeowner who is facing foreclosure or is involved with a property line dispute with a neighbor.
A real estate agent is helpful, indeed. But realtors are making a commission from a home being sold so they have their own agenda. A real estate attorney's agenda is to provide his or her client with protection. Don't you want one on your side when you are signing off on some of the largest financial transactions of your lifetime?
Divorce and Real Estate Consequences
One of the biggest issues that comes up during any divorce proceedings is the division of property. Every item you own has to be divided up between you and your spouse. If you're like many couples, the most valuable property you own is in the form of real estate - houses, condos, vacation homes, even businesses. You're probably wondering, "what happens to these investments?"
Before you make any decisions involving the division of real estate property, you need to carefully examine your financial situation both prior to the divorce, and after the divorce. Can you afford the property now? Will you be able to afford the property later? Is it practical for you to continue paying the expenses associated with owning a piece of real estate?
In addition to pragmatically evaluating your financial situation, you need to evaluate your emotional ties to the property. While it may be financially beneficial for you to retain possession of a particular piece of property, the painful memories associated with it may be too strong. It's impractical to think that the emotions associated with marital property don't exist.
The Law
The way you decide to divide any real estate property following your divorce is subject to the divorce laws in your particular state. Some states, such as California, believe that property division should be equal as well as equitable, meaning that the overall value of the property given to both parties should be roughly the same. Other states take into account only equitability, meaning that the general overall value of the portions should be comparable.
In general, there are three things that you will be determined about the house during a divorce:
· Which spouse will receive the house following the divorce.
· What that spouse gives up in order for the property division to be equitable.
· Whether or not the house will be sold to a third party.
If you plan on keeping the house following the divorce, you will have to buy out the other spouse's share in the house. This usually involves taking out a new mortgage on the house. Other reality follows similar rules. If you cannot afford to take out a new mortgage on the property, it will most likely be sold to a third party.
Before you make any decisions involving the division of real estate property, you need to carefully examine your financial situation both prior to the divorce, and after the divorce. Can you afford the property now? Will you be able to afford the property later? Is it practical for you to continue paying the expenses associated with owning a piece of real estate?
In addition to pragmatically evaluating your financial situation, you need to evaluate your emotional ties to the property. While it may be financially beneficial for you to retain possession of a particular piece of property, the painful memories associated with it may be too strong. It's impractical to think that the emotions associated with marital property don't exist.
The Law
The way you decide to divide any real estate property following your divorce is subject to the divorce laws in your particular state. Some states, such as California, believe that property division should be equal as well as equitable, meaning that the overall value of the property given to both parties should be roughly the same. Other states take into account only equitability, meaning that the general overall value of the portions should be comparable.
In general, there are three things that you will be determined about the house during a divorce:
· Which spouse will receive the house following the divorce.
· What that spouse gives up in order for the property division to be equitable.
· Whether or not the house will be sold to a third party.
If you plan on keeping the house following the divorce, you will have to buy out the other spouse's share in the house. This usually involves taking out a new mortgage on the house. Other reality follows similar rules. If you cannot afford to take out a new mortgage on the property, it will most likely be sold to a third party.
Homeowners and Foreclosure Attorneys
I often wish that people had come to me sooner, before it becomes too late - or at least very difficult - to help them with the potential foreclosure of their New York home. Although I cannot speak to the legal options and consequences in other states, I am sure that most foreclosure lawyers would agree that homeowners who need help with foreclosure-related issues should speak to a lawyer sooner rather than later.
In these days of economic uncertainty it is not uncommon for people to arrive in a lawyer's office just a day or two before an impending foreclosure, or sometimes even after the foreclosure has occurred, looking for help to stop or reverse the foreclosure. Although there is often little that can be done to stop a foreclosure, sometimes there are problems with the mortgage loan or the servicing of the loan that may provide some relief to homeowners. Unfortunately, if those issues are not raised before the foreclosure occurs, the homeowner may lose their home and be left with no recourse to recover the home. In New York, in most cases, if the homeowner fails to go to court to try and stop the foreclosure before it happens, there is simply no mechanism for undoing the foreclosure as long as the procedural prerequisites have been complied with.
For the proactive homeowner, on the other hand, seeking the assistance of a foreclosure lawyer well in advance of a scheduled foreclosure may offer many options. Provided there are defenses to the foreclosure or affirmative claims related to problems with the loan or its servicing, an injunction may be obtained to prevent the foreclosure. Moreover, if there is time to avoid embarking on expensive litigation, a lawyer may be able to negotiate a resolution with the lender to save your home.
At the end of the day, if you are facing foreclosure it is never a bad idea to seek help from a foreclosure attorney sooner rather than later. A brief consultation will usually confirm whether there is a reason to retain the services of the lawyer to deal with your foreclosure problem. Even if there is nothing that can be done legally to avoid the foreclosure, an New York foreclosure lawyer can explain your rights and obligations, including the option to pay the amount owing and reinstate the loan, and the potential liability for a deficiency if the home is eventually foreclosed on.
In these days of economic uncertainty it is not uncommon for people to arrive in a lawyer's office just a day or two before an impending foreclosure, or sometimes even after the foreclosure has occurred, looking for help to stop or reverse the foreclosure. Although there is often little that can be done to stop a foreclosure, sometimes there are problems with the mortgage loan or the servicing of the loan that may provide some relief to homeowners. Unfortunately, if those issues are not raised before the foreclosure occurs, the homeowner may lose their home and be left with no recourse to recover the home. In New York, in most cases, if the homeowner fails to go to court to try and stop the foreclosure before it happens, there is simply no mechanism for undoing the foreclosure as long as the procedural prerequisites have been complied with.
For the proactive homeowner, on the other hand, seeking the assistance of a foreclosure lawyer well in advance of a scheduled foreclosure may offer many options. Provided there are defenses to the foreclosure or affirmative claims related to problems with the loan or its servicing, an injunction may be obtained to prevent the foreclosure. Moreover, if there is time to avoid embarking on expensive litigation, a lawyer may be able to negotiate a resolution with the lender to save your home.
At the end of the day, if you are facing foreclosure it is never a bad idea to seek help from a foreclosure attorney sooner rather than later. A brief consultation will usually confirm whether there is a reason to retain the services of the lawyer to deal with your foreclosure problem. Even if there is nothing that can be done legally to avoid the foreclosure, an New York foreclosure lawyer can explain your rights and obligations, including the option to pay the amount owing and reinstate the loan, and the potential liability for a deficiency if the home is eventually foreclosed on.
More Protections Under Tenancy
Check that your deposit has been placed in a Tenancy Deposit Protection scheme
Since April 2007 landlords or managing agents are obliged to place a deposit paid by a tenant into Tenancy Deposit Protection scheme.
This is an authorised scheme which protects the deposit and minimises the risk of landlords unreasonably pocketing your deposit at the end of the tenancy.
Your landlord or agent must tell you within 14 days of you handing over the deposit which one of the three authorised schemes your deposit is protected by and provide you with details of the scheme. The three schemes include:
- The Deposit Protection Service which offers a free-to-use system funded from the interest earned on the money deposited
- Tenancy Deposit Solutions Ltd which is a partnership run by the National Landlords Association (NLA) and Hamilton Fraser Insurance
- The Dispute Service
If your landlord or agent fails to place your deposit within one of the protection schemes they could be liable to pay you up to three times the amount of your deposit.
I know the person who is letting the property to me therefore I don't need to sign a tenancy agreement.
Oral agreements can be difficult to enforce because there is often no proof of what has been agreed. If a particular problem arises it will be difficult to enforce what may not have been discussed. Nevertheless a tenancy agreement exists even if there is only an oral agreement between you and your landlord. For example, you may have agreed with your landlord at the beginning of the tenancy how much rent you would pay and when it is due, whether fuel and bills are included, and if your landlord has the right to say who else can live in the property. If you have a dispute with your landlord or you are trying to enforce an oral agreement with your tenant or landlord you should consult an experienced landlord and tenant solicitor.
I have not read the tenancy agreement so I can't be bound to its terms.
The tenancy agreement (or lease) is a legally binding document. You should be aware that by signing the agreement you will be bound for the full term of the tenancy and will not be released from your obligations (for example, to pay rent) before the tenancy expires without the consent of the landlord. The landlord should also sign the tenancy agreement. When he signs the tenancy agreement, the landlord is transferring possession of the property to you. A landlord will not be able to repossess the property before the tenancy expires unless you give up the tenancy or break the tenancy agreement; in the latter case a court order is required.
Before you arrange a date and time to sign the tenancy agreement, make sure that you (and all the other tenants if you are in shared accommodation) have seen a copy and read it through so that everyone including the landlord understands their obligations. Ask questions to clarify anything that you are unclear about.
To safeguard your position on any tenancy, consider running any questions you may have past a solicitor experienced in this kind of work.
Since April 2007 landlords or managing agents are obliged to place a deposit paid by a tenant into Tenancy Deposit Protection scheme.
This is an authorised scheme which protects the deposit and minimises the risk of landlords unreasonably pocketing your deposit at the end of the tenancy.
Your landlord or agent must tell you within 14 days of you handing over the deposit which one of the three authorised schemes your deposit is protected by and provide you with details of the scheme. The three schemes include:
- The Deposit Protection Service which offers a free-to-use system funded from the interest earned on the money deposited
- Tenancy Deposit Solutions Ltd which is a partnership run by the National Landlords Association (NLA) and Hamilton Fraser Insurance
- The Dispute Service
If your landlord or agent fails to place your deposit within one of the protection schemes they could be liable to pay you up to three times the amount of your deposit.
I know the person who is letting the property to me therefore I don't need to sign a tenancy agreement.
Oral agreements can be difficult to enforce because there is often no proof of what has been agreed. If a particular problem arises it will be difficult to enforce what may not have been discussed. Nevertheless a tenancy agreement exists even if there is only an oral agreement between you and your landlord. For example, you may have agreed with your landlord at the beginning of the tenancy how much rent you would pay and when it is due, whether fuel and bills are included, and if your landlord has the right to say who else can live in the property. If you have a dispute with your landlord or you are trying to enforce an oral agreement with your tenant or landlord you should consult an experienced landlord and tenant solicitor.
I have not read the tenancy agreement so I can't be bound to its terms.
The tenancy agreement (or lease) is a legally binding document. You should be aware that by signing the agreement you will be bound for the full term of the tenancy and will not be released from your obligations (for example, to pay rent) before the tenancy expires without the consent of the landlord. The landlord should also sign the tenancy agreement. When he signs the tenancy agreement, the landlord is transferring possession of the property to you. A landlord will not be able to repossess the property before the tenancy expires unless you give up the tenancy or break the tenancy agreement; in the latter case a court order is required.
Before you arrange a date and time to sign the tenancy agreement, make sure that you (and all the other tenants if you are in shared accommodation) have seen a copy and read it through so that everyone including the landlord understands their obligations. Ask questions to clarify anything that you are unclear about.
To safeguard your position on any tenancy, consider running any questions you may have past a solicitor experienced in this kind of work.
Tenancy Agreements
When signing a rental contract, be careful to take the following simple steps to ensure that you are covered both financially and personally.
1. Take out your own insurance
It is not safe to assume that the landlord's house insurance will cover theft of any of your personal possessions. More often than not the landlord's insurance policy will only cover the buildings and his or her possessions. Check the position of your lease, but unless it clearly indicates that your landlord will be responsible for insurance of your personal possessions, you should therefore look to take out your own insurance policy for any valuable possessions that you will have in the property.
2. Check whether the property is safe
You should check and get assurances or certificates from the landlord that the property complies with the following regulations:
- Furniture and Furnishings (Fire) (Safety) Regulations 1988, amended in 1993
- Gas Safety (Installation and Use) Regulations 1998
- Smoke Detectors Act 1991 (if the property doesn't have smoke alarms ask if they can be installed)
- Electrical Equipment (Safety) Regulations 1994.
You are also recommended to find out if the landlord has PAT checked (Portable Appliance Testing) the electrical appliances.
The regulations place a legal obligation on the landlord to supply you with copies of the requisite certificates. If your landlord refuses to do so then you should write to him informing him of his legal duty under the regulation to furnish you with a copy at the start of your tenancy. Failing this, you should make a formal written complaint to your local Health Safety Executive which can be found via their website.
1. Take out your own insurance
It is not safe to assume that the landlord's house insurance will cover theft of any of your personal possessions. More often than not the landlord's insurance policy will only cover the buildings and his or her possessions. Check the position of your lease, but unless it clearly indicates that your landlord will be responsible for insurance of your personal possessions, you should therefore look to take out your own insurance policy for any valuable possessions that you will have in the property.
2. Check whether the property is safe
You should check and get assurances or certificates from the landlord that the property complies with the following regulations:
- Furniture and Furnishings (Fire) (Safety) Regulations 1988, amended in 1993
- Gas Safety (Installation and Use) Regulations 1998
- Smoke Detectors Act 1991 (if the property doesn't have smoke alarms ask if they can be installed)
- Electrical Equipment (Safety) Regulations 1994.
You are also recommended to find out if the landlord has PAT checked (Portable Appliance Testing) the electrical appliances.
The regulations place a legal obligation on the landlord to supply you with copies of the requisite certificates. If your landlord refuses to do so then you should write to him informing him of his legal duty under the regulation to furnish you with a copy at the start of your tenancy. Failing this, you should make a formal written complaint to your local Health Safety Executive which can be found via their website.
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