Yesner and Boss, P.L. - Tampa Real Estate and Bankruptcy Law Blog

How Does Bankruptcy Affect My Credit?

2010-02-08T06:45:00.000-08:00

Bankruptcy and its affect on credit is unquestionably the biggest concern of most bankruptcy clients. The ironic aspect is that often bankruptcy, especially Chapter 7 bankruptcy, is the quickest road to credit recovery.

Everyone knows that credit score dictates a person’s ability to borrow. What many people do not realize is that credit score is only one element of lending criteria.

Lenders will tell you that credit score will “open the door” to getting a loan, but the single most important lending criteria is DTI, or, debt to income ratio.

DTI, in basic terms, is the percentage of a person’s monthly gross income that is utilized to pay their debts. If a person’s DTI is too high, that too much of their income is used to service debt, lenders will be very reluctant to continue to lend money.

Again, the irony of credit is that a person can have a credit score of 750 (which is excellent and would indicate a good potential borrower) but will be denied a loan because their high DTI ratio. For example,

Bob has a FICO credit score of 750 and DTI ratio of 85%. Bob wants to borrow money to purchase a vehicle. While Bob will be “pre-approved” based on credit score alone, the vehicle lender will likely decline Bob’s loan. Based on Bob’s DTI, the lender is concerned that Bob cannot continue to service his debts and will therefore be a substantial default risk.

I use the term ironic in describing credit because credit score is very often just a façade. While Bob’s score is high, it is still somewhat worthless – really no different than a person with a 550 credit score. Why? NEITHER CAN BORROW MONEY!!

Bankruptcy is often a very quick credit recovery because a person’s DTI is instantly and substantially reduced through the bankruptcy. Bankruptcy discharges the debt – instantly improving the DTI ratio, which again, are the single most important criteria evaluated by lenders when taking loan applications.

How Does Bankruptcy Affect Child Support?

2010-02-01T06:31:00.000-08:00

There are two facets to child support and alimony in a bankruptcy context; both the payment and receipt of child support and alimony.

Sometimes, child support and alimony debt can become so burdensome that the parent or ex-spouse believes that bankruptcy is the only way out. Bankruptcy is a bad alternative to eliminate child support or alimony; a family law court would be a better forum to have those obligations reduced, if appropriate. Bankruptcy might help reduce other unsecured debts that will allow the child support and alimony obligations to be more affordable however.

When the bankruptcy is filed, the automatic stay halts all collection activities, except those actions to establish paternity, and actions for domestic support, child custody or visitation. In addition, the automatic stay has no effect on the reporting of overdue child support to any consumer reporting agency.

Both domestic support obligations and debts owed to a spouse or former spouse pursuant to a divorce or separation agreement are non-dischargeable in bankruptcy. Therefore, those debts remain even after the bankruptcy is completed.

Finally, in order to file for bankruptcy protection, child support and alimony obligations must be current and must be kept current during the bankruptcy case.

Therefore, bankruptcy is ineffective as a tool to eliminate child support and alimony obligations, although it might be a good alternative to reduce other debts, thereby making child support and alimony easier to afford.

What happens, however, when the person receiving child support or alimony is forced to file for bankruptcy protection? For those bankruptcy filers that receive child support and alimony, both federal law and Florida law allow the receipt of child support and alimony to be exempt from creditors and from the bankruptcy trustee. Therefore, the receipt of child support and alimony has little effect on the amount the debtor may have to pay to unsecured creditors during the pendency of the bankruptcy case.

New Law Requires All Loan Modifiers to be Licensed but Lawyers Representing Clients Are Exempt

2010-01-26T07:45:00.000-08:00

On January 1, a new law took effect requiring that private businesses offering loan modification services to Florida homeowners must be licensed by the state of Florida. However that law does not apply to lawyers who are representing clients though a bona fide law office as outlined under the Rules Regulating the Florida Bar.

This law passed by the Legislature requires that all private companies and individuals must first be registered with and licensed by the state in order to offer help to troubled homeowners working with lenders. This law hopes to eliminate massive fraud that has taken place around the state, many of which have resulted in the Attorney General filing civil lawsuits on behalf of consumers.

The Florida Bar and the Office of Financial Regulation agreed that when there is an attorney-client relationship between the homeowner and the provider of modification services established by the attorney and not a third party, then the relationship is properly governed by The Florida Bar and the Rules of Professional Conduct. If there is no such attorney-client relationship, then the loan modification “mill” is just a business and should be licensed and regulated by OFR like any other nonattorney business within its regulation — even if attorneys own or are employed by the nonattorney business. Further, the bar took the position and the agency agreed that nonattorney staff members in a law office would not have to be licensed by OFR as the attorney remains responsible for their conduct.

Personal Bankruptcy Filings Rising Fast in Florida’s Middle District

2010-01-12T10:58:00.000-08:00

The number of citizens in the Middle District of Florida filing for bankruptcy rose by nearly 45% this past year. This drastic increase in filings is largely due to the number of foreclosures and unemployment.

Almost twice as many people are filing for Chapter 7 bankruptcy, which liquidates assets allowing filers to pay off some debts and absolving them of others. This figure is significant due to the number of federal bankruptcy laws enacted in 2005 with the purpose of encouraging Chapter 13 filings. Chapter 13 filings require filers to reorganize their debt and enter into repayment plans in exchange for keeping certain assets.

The idea behind the 2005 bankruptcy laws was to make it harder for people to completely dispose of their debt, particularly for Chapter 7 filings. In order to segregate those who had the means to repay their debt and those who did not, a “means” test was implemented. If the test establishes that a person is financially capable of satisfying at least part of the debt after it is restructured, they will not qualify for a Chapter 7 filing.

All together, personal bankruptcy filings in central Florida rose to 61,009 as of December 2009, according to United States Bankruptcy Court for the Middle District of Florida statistics. This figure is up 45% from 2008. This is also the highest number reported since 2005 when there was a dramatic increase in filings due to the new legislation which was about to take effect.

Chapter 7 filings were up more than 58% as of December 2009, compared with December of 2008, according to the Middle District. December is the most recent month with data available. Chapter 13 filings rose by 17% and accounted for 25% of the 2009 filings as of December. Judging by these numbers, it does not appear that the 2005 legislation is very effective or is achieving its purpose.

The massive amounts of foreclosures and the unemployment rate have caused people to file for bankruptcy who wouldn’t have otherwise. Nationwide statistics have shown more highly educated and affluent citizens have turned to bankruptcy. Some experts believe that bankruptcies peaked at some point in 2009, but it does not appear that the number of bankruptcy filings is going down whatsoever.

When Does My Bankruptcy End?

2010-01-04T06:55:00.000-08:00

I am often asked, “how long will this take – when will my bankruptcy end?” The answer depends on the congestion of the court’s docket and what type of bankruptcy is filed. Sparked by the great economic disaster of 2008 bankruptcy filing in the Middle District of Florida is up almost 50% from 2008, toping out at almost 58,000 according to the Tampa Bay Business Journal. The increase in filings in the Middle District of Florida is the second largest in the nation behind the Central District of California.

Despite the increased number of filings, a common chapter seven bankruptcy case in the Middle District of Florida takes anywhere from three to six months from the filing date until the date of discharge. Discharge being the conclusion of a bankruptcy case i.e. the Debtor is alleviated of the debt obligations. Considering the overwhelming number of filings and the second busiest bankruptcy court in the country, a Debtor can make their way through a chapter seven in a reasonable amount of time.

However, if a debtor files a chapter thirteen bankruptcy, the time frame is much different. In a chapter thirteen bankruptcy, the Debtor makes a monthly repayment to the Trustee over the life of a thirty-six or sixty month repayment plan. Once the Debtor makes the last payment in their chapter thirteen plan, the Debtor is then discharged. Depending on which plan, a chapter thirteen bankruptcy takes at least three years before discharge and in many cases five years before discharge.

Vincent C. LoBue, Esq.
Associate Attorney
Yesner & Boss, P.L.

The Bank Said My Foreclosure Sale Will Be Next Week! Help!

2009-12-21T07:12:00.000-08:00

We often receive frantic calls from homeowners because they’ve called the bank after having been served with a foreclosure lawsuit, only to hear from the bank’s representative that “Your foreclosure sale is December 22, 2009.” “How can that be?” the borrower thinks, “The lawsuit was first filed on November 12, and I’ve received nothing by mail from my lender.” In this blog, we will explain why this happens and what borrowers can do about it.

When the bank refers a case to its attorney, they require that attorney to stay within certain timelines. The speed and efficiency within which the plaintiff foreclosure firm can complete the foreclosure action, or the average time within which they can complete all cases referred to them, determines how many cases will get referred to that firm above their competitor plaintiff firms.

Although all lenders have their own internal timelines, one example is:

File Foreclosure -> 5 days from receipt of referral from the lender
Service of Process complete -> 30 days from filing
File Motions for Default & Judgment -> 30 days from Service Complete
Schedule Judgment Hearing -> 30 days from Filing Motions
Foreclosure Sale -> 30 days from Hearing
Certificate of Title Issued to Lender -> 10 days from Foreclosure Sale
Tenants / Homeowner Evicted -> 5 days from Certificate of Title

Pursuant to this timeline, the lenders expect that the foreclosure will be complete between 140 and 150 days. Further, the lender automatically creates this timeline upon referral of the case to its counsel so that they can track and monitor their attorneys’ speed and efficiency. Accordingly, the lender knows that if the file is referred on January 1, 2010, then the foreclosure sale should be on May 5, and all occupants evicted by May 21.

The problem is that each individual foreclosure action will vary in length based upon a number of factors: the judges’ or courts’ calendars (given the volume of foreclosures today, some judges have a wait time of between 3 and 4 months to get time on their hearing calendar); the number of defendants and their ease in being found (the more defendants or defendants who live out of the county where the case is pending may increase the time needed for service of process); foreclosure sale dates granted by the judge of 60 days or longer; and attorneys who file motions to challenge the lender’s foreclosure action on any number of legal grounds. When the actual timeline varies from the lender’s anticipated timeline, conversations like the one described above occur between lender and borrower because the lender’s computer system shows the anticipated timeline rather than the actual timeline.

What can borrowers do about this? First, do not panic. Second, consult with an attorney who is familiar with the foreclosure timeline and the lenders’ practices to come up with a plan to either save your home, or get rid of the house with minimal liability owed to the lender. Finally, inquire with an attorney as to whether this practice by the lender is a violation of the Fair Debt Collection Practices Act (FDCPA) or Florida’s Consumer Collection Practices Act (FCCPA). Pursuant to those two laws, it is improper for the lender to misrepresent any facts about your debt in furtherance of the collection of a debt. Clearly, telling a borrower that their foreclosure sale is set for a date certain that is physically impossible given the Florida Rules of Civil Procedure would violate both the FDCPA and FCCPA. However, as these types of cases are very fact specific, you should consult with an attorney before coming to any conclusion that the lender’s actions violate either of those two laws.

If you know someone who is facing foreclosure, and they contact the lender for information and the lender gives them a “foreclosure sale” date that seems unreasonable, it likely is based on an anticipated rather than actual timeline. That homeowner should follow up with the Clerk of Court, or a Florida licensed attorney before jumping to the often inaccurate conclusion that the sheriff is going to take their house away sooner than Florida Law allows.

Obama Guidelines Aim to Ease Short Sales

2009-12-08T06:53:00.000-08:00

In an effort to assist financially troubled borrowers attempting to sell their home, the Obama administration has laid out guidelines designed to encourage the use of short sales allowing the borrower to sell their home for less than what is owed on the loan. In effect this program also makes it easier for borrowers to voluntarily transfer ownership of properties through a "deed in lieu of foreclosure."

The program’s official name is the Home Affordable Foreclosure Alternatives Program (HAFA), and its part of the existing Home Affordable Modification Program (HAMP). HAFA will apply to loans not owned or guaranteed by Fannie Mae or Freddie Mac, which cover over half of all U.S. mortgages; however, Fannie and Freddie will issue their own versions of HAFA in coming weeks.

This is the latest addition to the Obama administration's $75 billion foreclosure-prevention plan, which includes incentives for mortgage companies and investors to rework troubled loans. The government first said in May that it would include short sales in the program, but it has taken months to finalize the details.

Under this plan, if a home is sold for less than the amount of the mortgage the borrower will receive $1,500 and the Mortgage-servicing companies will receive $1,000 upon completion of the short sale. The program is open to borrowers who may be eligible for the government’s loan-modification program but don’t end up qualifying, or are delinquent on their modification, or request a short sale or deed-in-lieu transaction.

Also under these new guidelines, second-mortgage holders can receive up to $3,000 of the sales proceeds in exchange for releasing their liens. Investors who hold the first mortgages, meanwhile, can collect up to $1,000 from the government for allowing such payments.

Of Critical importance, borrowers who complete a short sale under the program must be "fully released" from future liability for the debt, according to the HAFA guidelines.

While the goal of the HAFA is to simplify the process in the hopes of increasing the number of short sales and “deeds in lieu of foreclosure” the rules can be a bit complex, and it comes with 43 pages of guidelines and forms. To review these guidelines and forms please click here.

This program will not take effect until April 5, 2010 but servicers may implement it before then if they meet certain requirements.

How Do Common Credit Issues Affect FICO Scores?

2009-12-02T06:34:00.001-08:00

A common question we are asked during our client consultations is “How will a bankruptcy, foreclosure, and/or short sale affect my credit score?” One common answer is “We have no idea, but there is no way to protect your liability without some negative impact on your credit, which can recover over time.”

Probably a bad answer, but now we have a new answer.

On Thursday, November 26, 2009, FICO (Fair Isaac Corporation) revealed its “damage points” information. Previously, the company revealed only broad categories of factors influencing a consumer’s credit score, rather than the specific number of points at stake for credit mistakes.

FICO is the company that pioneered consumer credit scoring, and is most familiar to all consumers. FICO assigns a three-digit number from 300 to 850, depending upon how well consumers handle credit. Other companies offer consumer credit scoring systems, but FICO’s version is the most well-known and most widely used by lenders in determining whether a consumer can borrow, how much, and at what interest rate.

As the table at left demonstrates, those consumers with excellent credit (780 and above) may suffer a bigger point drop than those with an average credit score (680 points). For example, someone with excellent credit who has a 30-day late payment will suffer a FICO score drop of between 90 to 110 points, whereas someone with average credit will suffer a smaller FICO score drop of between 60 and 80 points.

Unfortunately, given the high rate of foreclosures, record-filings in bankruptcy, short sales, unemployment, and all of the other economic woes outside the control of many consumers, it is difficult to avoid these drops in credit. However, given the information provided last week by FICO, when faced with two difficult decisions it is now easier for consumers to take the least-worst decision, if FICO score is more important to the consumer than liability to any particular creditor.

Congress Extends Homebuyer Tax Credit Until April 30, 2010

2009-11-23T06:09:00.000-08:00

On November 5, 2009, Congress voted to extend the homebuyer tax credit program until April 30, 2010. The extension continues the $8,000.00 tax credit to first time homebuyers, and includes an additional credit for current homeowners of $6500.00. Further, by extending the Homebuyer tax credit, the Florida Homebuyer Opportunity Program will continue to provide loans to first time buyers for down payment and closing costs. The chart below provides a comparison of the benefits to homeowners under the original act and the new benefits under the extended program:

FEATURE

Jan 1 – November 30, 2009

Rules as enacted February 2009

November 7 – April 30, 2010

Rules as enacted November 2009

First-time Buyer

Amount of Credit

$8000

($4000 married filing separate)

$8000

($4000 married filing separate)

First-time Buyer

Definition for Eligibility

May not have had an interest in

a principal residence for 3 years prior to purchase

Same

Current Homeowner

Amount of Credit

No Provision

$6500

($3250 married filing separate)

Effective Date

Current Owner

No Provision

November 7, 2009

Current Homeowner

Definition for Eligibility

No Provision

Must have used the home sold

or being sold as a principal

residence consecutively for 5 of the previous 8 years

Termination of Credit

Purchases after November 30,

2009.

(Becomes April 30, 2010 on Date of Enactment.)

Purchases after April 30, 2010

Binding Contract Rule

None

So long as a written binding

contract to purchase is in

effect on April 30, 2010, the

purchaser will have until July 1, 2010 to close.

Income Limits

(Note: Increased income

limits are effective as of date of enactment of bill)

$75,000 – single

$150,000 – married

Additional $20,000 phase out

$125,000 – single

$225,000 – married

Additional $20,000 phase out

Limitation on Cost of Purchased Home

None

$800,000

November 7, 2009

Purchase by a Dependent

No Provision Ineligible

November 7, 2009

Anti-fraud Rule

None

Purchaser must attach

documentation of purchase to tax return

An IRS 1099-C Form Does Not Mean Debt Is Discharged

2009-11-03T07:35:00.000-08:00

A third circuit bankruptcy case recently decided that Form 1099-C does not establish that debt is discharged. A creditor typically issues a Form 1099-C to a debtor in bankruptcy to show cancellation of debt. The credit union in the case In re Bononi, had sent the Chapter 7 debtor zero-balance account statements and an IRS form 1099-C for “cancellation of debt.” After receipt of the form and the account statements, the debtor received money from the settlement of a personal injury action. The court found that despite the statements and the 1099-C form, the debtor still had an obligation to pay on the past debt. Additionally, the court found that even if a creditor issues a 1099-C form, the form does not prohibit the creditor from pursuing collection of the old debt. Only a discharge from the Bankruptcy Court has the effect of canceling the debt and removing the debtor’s liability for the debt. In re Bononi, 19 CBN 864.

Commercial RE Distress Will Have A Big Impact on Housing

2009-10-19T07:56:00.000-07:00

Below is a recent article written by John Burns Real Estate Consulting Vice President, Lesley Deutch regarding the potential impact on the housing market as the Commercial Real Estate Market becomes distressed.

We were lucky enough to present at an all day Commercial Real Estate Symposium at the Fed, where the preeminent industry experts from each real estate sector shared what is occurring in their industry. Prior to the meeting, we had been estimating that banks would not recover 20% of the commercial real estate loans outstanding. Now, we feel that the recovery will even be less.

This distress will certainly have an impact on housing, and one that will be both good and bad at the same time.

• Good: As soon as commercial real estate distress hits the banks in full force, solvent banks will need to dispose of residential assets to concentrate on commercial real estate distress. This will create land buying opportunities in the next several months. Builders acquiring land for cheap means the beginning of a recovery.

• Bad: Banks with high commercial real estate exposure are unlikely to lend to the residential sector, and many of these banks will be lucky to survive at all. To determine whether or not your bank has significant commercial real estate exposure, check out their balance sheet, which is usually in the investor section of their website.

The Problem
Property values are now down 35% from the peak, according to Moody's. We think prices will fall even more as leases expire and the tenants lease less space at a lower rent.

Why is this a problem? Commercial banks own nearly 45% of mortgage debt outstanding. By comparison, the banks own only 21% of the single-family mortgage debt outstanding.

The insolvency of several thousand banks will overwhelm the understaffed regulatory system and it will take at least 3 more years for a healthy banking system to emerge. We expect the government to intervene even more than it has in order to save the US banking system. When this occurs, it could indirectly benefit home builders by providing great distressed land buying opportunities, and by shoring up the banks so the better banks can start lending again soon.

Rise In Foreclosures Ensures That Housing Supply Will Continue

2009-10-09T12:11:00.000-07:00

According to the Center for Responsible Lending, a nonpartisan watchdog group based in Durham, North Carolina, there are more than 6,600 home foreclosure filings per day in the US, and with two million this year alone, the flood shows no signs of abating. Foreclosures, which started with subprime borrowers, have now moved on to the much bigger prime loan market on the back of mounting unemployment. Michael Barr, the Treasury Department's assistant secretary for financial institutions, said in congressional testimony last month that more than 6 million families could face foreclosure over the next three years.

As a result of the continued foreclosure increase, the housing market has a surplus of available properties. The shape of this second downturn is almost completely dependent on the level of government intervention that will take place.

For a number of reasons, banks have not been aggressively taking title to homes and selling them, which has resulted in very few distressed sales in comparison to the actual level of distress in the market. This delay in REO sales, along with historically low mortgage rates and an $8,000 tax credit, has helped to stabilize the housing market - temporarily.

It is very clear that price stabilization is temporary unless something is done. Here are some facts to help project what housing will be like in 2010:

13.54% of the 44.7 million mortgages tracked by the Mortgage Bankers Association are delinquent.
7.57 million homeowners are delinquent, applying the same percentage to the 11.2 million mortgages not tracked by the MBA (55.9 million total mortgages in the U.S.). That means that 10% of all homeowners in the country are delinquent.
Based on historical trend analysis by Amherst Securities, 6.94 million homes that are already delinquent will be liquidated, which is more than a one year supply of distressed sales poised to hit the market sometime in 2010 and 2011. During Q1 2005, that figure was only 1.27 million.
Defaults continue to grow at the rate of approximately 300,000 per month, assuring that the number of distressed sales will grow and will continue through 2012.

2009 Government Intervention

Government intervention to date has been extremely helpful in preventing an even more dramatic decline in home prices. As shown in the chart at right, housing demand has only fallen to "normal" levels and stabilized there. Without historically low mortgage rates, support for Freddie Mac, Fannie Mae and FHA, and an $8,000 tax credit, how far would sales have fallen this year and what would that decline in demand have done to pricing?

Conclusion

Demand needs to continue to be stimulated to bring down supply, particularly while the country continues to lose jobs. Without continued government intervention, home prices will plummet, banks and the GSEs will continue to lose money, and the economy has virtually no chance of increasing overall employment in 2010.

Property Owners Given the Opportunity to Challenge Their TRIM Notices Online

2009-09-11T05:47:00.000-07:00

According to Ken Burke, Clerk of the Circuit Court for Pinellas County, as of Monday, August 31, 2009 property owners who disagree with their property value assessments can file petitions to go before the Value Adjustment Board (VAB) online via the Clerk’s website www.mypinellasclerk.org. Along with the online petitioning feature, the Clerk’s website will now offer petitioners the ability to submit any supporting documents online.

Property owners who disagree with their assessments are given the opportunity to meet with the property appraiser’s office to further discuss their notices. If the outcome of this meeting is still to the dissatisfaction of the owners then they may file a formal challenge with the VAB.

The Value Adjustment Board acts as the decision-making authority between the property owners and the property appraiser when a disagreement arises over exemptions, valuations and classifications. Once this petition has been filed, a quasi-judicial hearing is scheduled with a special magistrate.

Previous methods of petitioning to go before the VAB are still available however the forms can now be easily accessed online and then mailed or filed in person at the Clerk’s Board of Records department. The forms can also be dropped off at any one of the following three Clerk branch offices: the St. Petersburg Branch at 545 First Ave. N., St. Petersburg; the Tyrone Branch at 1800 66th St. N., St. Petersburg or the North County Branch at 29582 U.S. 19, Clearwater.

On Monday, August 24, 2009 the property Appraiser’s office mailed the Truth In Millage (TRIM) notices, giving property owners until Friday, September 18, 2009 to file a petition challenging their property tax notice.

The TRIM notice will include the homeowner’s property taxes, property assessments and proposed millage rates set by the various taxing entities. According to Pam Dubov, Property Appraiser the market values shown on the 2009 TRIM Notices are based on the current market conditions and ownership status of the property as of January 1, 2009 which is determined by analyzing sales that took place in 2008.

Bankruptcy Court Finds Discharge of Indebtedness by Issuance of 1099-C Forms Does Not Equate to Discharge of Debt

2009-08-25T08:15:00.001-07:00

By: Brett Henson

For homeowners considering a short sale or deed in lieu of foreclosure ("DIL") as a means to prevent foreclosure, a recent bankruptcy decision from the Third Circuit has important implications towards the treatment of deficiency liability. In re Zilka, a July 2009 case from Pennsylvania, the debtor received a post-petition personal injury settlement allowing for settlement of all creditors claims in the bankruptcy estate. At issue was whether a creditor could file a claim against the debtor for accounts it had previously charged off and issued 1099-C forms for cancellation of debt to the IRS. The debtor argued the charged off accounts and the 1099-C forms amounted to a discharge of the debts. However, the court distinguished between a charge off of indebtedness and a discharge of indebtedness. The court found the IRS requirement that a lender file a 1099-C form to be a reporting requirement for income tax purposes. In contrast, it held state law governs whether a discharge of debt has occurred. As such, a creditor may still attempt to collect on a charged off debt during bankruptcy proceedings, even if it has previously issued 1099-C forms.

The ruling in Zilka highlights the importance of tax considerations for homeowners who complete a short sale or DIL. Banks must issue a 1099-C anytime there is a deficiency resulting from the sale of a property. For instance, a homeowner, Bill, owns two properties: property 1 is his primary residence and property 2 is an investment property he rents to tenants. For the purposes of the example, Bill considers property 2 a bad investment because the mortgage balance is $45,000.00 greater than the value of the property, and he is unable to find tenants. He obtains a short sale offer of $20,000.00 less than the value of the property, which the bank is willing to accept. Should the sale close, the IRS requires the bank to report a deficiency of $65,000.00 (Mortgage balance of $45,000.00 + $20,000.00 less the value of the property) to by filing a 1099-C form. When Bill completes yearly tax returns, he would be required to report the $65,000.00 as gross income, which, after deductions and exemptions, would increase his taxable income, and potentially place him in a higher tax bracket. The ruling in Zilka, though, would allow for Bill to re-adjust his income if the bank later filed a claim in bankruptcy court for the deficiency of $65,000.00. In short, Zilka affirms the principal that a debtor may be liable for deficiencies by either an increase in the debtor's taxable income or the creditor's right to collect on the deficiency, but not both.

There are a few applicable exemptions under the Internal Revenue Code for tax liability resulting from deficiencies in debt settlement. For instance, deficiencies resulting from the sale of a qualified principle residence are exempt from gross taxable income in most circumstances. In the example above, the QPR exemption would apply if Bill can show he has lived in the property for 2 years, the debt was used to acquire, construct, or substantially improve the property, and the total debt is less than $2 million. Although this exemption excludes deficiency income reported through a 1099-C from Bill's gross income, it also increases his tax basis if there is a short sale of the property. However, the insolvency exemption, which applies if Bill's total liabilities exceed his assets, would operate to cancel any liability resulting from this increased basis.

A Guide to Federal & State Restraints on Consumer Debt Collection

2009-08-12T11:42:00.000-07:00

By: Paul Silvestri

Many of us are often victimized by unscrupulous businesses attempting to collect debt using intimidating guerilla tactics. Few really know the different consumer protection statutes which exist to protect the public from these unethical and sometimes even threatening business practices. 15 U.S.C. §1692, et sequi known as The Fair Debt Collection Practices Act (“FDCPA”) is the federal law which promotes ethical business practices by debt collectors. The Florida counterpart is Fla. Stat. §559.55, et sequi, more commonly known as The Florida Consumer Collection Practices Act, (FCCPA). These acts establish general standards of prohibited conduct, define and restrict abusive collection acts, and provide specific rights for consumers.

As a result of the rise of information technology, debt collectors have become increasingly sophisticated and deceptive in their practices. Therefore, it is necessary for consumer’s to know their rights.

Validation Rights Concerning Debt

General Notification: Within 5 days after the initial communication from the consumer in connection with the collection of any debt, a debt collector shall, unless the following information contained in the initial communication or the consumer has paid the debt, send the consumer written notice containing – 1) the amount of debt; 2) the name of the creditor to whom the debt is owed; 3) a statement that the consumer has 30 days to contest the validity of the debt and if they fail to do so the debt will be assumed to be valid; 4) A statement that after the consumer contests the validity, the debt collector must produce verification of the debt or a copy of the judgment against the consumer to be delivered to the consumer.

Request for Validation: If consumer disputes the debt within the 30 day window, the collector shall cease collection of the debt until the debt collector verifies the debt to the consumer and provides the name and address of the original creditor.

Representations Concerning Amount of Debt

The FDCPA is violated when any communication is sent to the consumer which does not completely disclose the full amount of the debt. 15 U.S.C. §1692g. Even a statements such as “this amount does not include accrued but unpaid interest, or unpaid late charges” has been held in violation.

False Threats of Lawsuits

The FDCPA contains a general proscription against the use of any false, deceptive or misleading representation or means in connection with the collection of nay debt. 15 U.S.C. §1692e. The misrepresentation or exaggeration of the imminence of a suit on intent or authority to sue constitutes a violation of the FDCPA.

Communication With Third Parties

A debt Collector, with limited exceptions or to effectuate post-judgment judicial remedy, may not communicate in connection with the collection of any consumer debt, with any person other than the consumer, his attorney, a consumer reporting agency, a creditor, the attorney of the creditor, or the attorney of the debt collector.

First-Time Home Buyers Find 8000 Reasons To Buy A Home Before December 1st

2009-07-30T10:36:00.001-07:00

As part of “The American Recovery and Reinvestment Act of 2009” first-time home buyers are eligible to receive an $8,000 tax credit. This credit is available to any buyer who has not owned a principal residence during the three-year period prior to the purchase. Their income must not exceed $75,000 for a single taxpayer, $150,000 for married taxpayers who file jointly and $95,000 for married couples who file separately. So for those who qualify as first-time home buyers they may purchase any kind of home (new or resale), as long as the purchase/closing occurs sometime between January 1, 2009 and December 1, 2009. The amount of this credit is equal to 10 percent of the home’s purchase price with the maximum set at $8,000. The most significant difference from the tax credit that Congress enacted last year is that this credit does not have to be repaid.

The goal of this tax credit was to help the housing market bounce back from the worst downturn it’s seen in decades and it has yet to disappoint. A recent government report has stated that during the month of June, U.S. home sales rose by its largest amount since December 2000. These sales rose by a margin of 11 percent and June was the 10^th consecutive month that sales activity has improved when compared to the previous year. This increase cannot only be credited to these tax incentives but also the relatively low mortgage rates as well as the abundant amount discounted houses currently available on the market.

In June 2008 the average sale price for a home was nearly $235,000 but now just one year later those prices have declined 12 percent to just over $205,000. These prices are expected to continue their decline until the competition from low-priced foreclosures diminishes.

Although November 30^th seems like a long way off, if you’re planning on purchasing a home that is in foreclosure or a short sale you’re time to act may be limited as these sales can sometimes take four months or more to close. This push is what has led the increasing number of houses sold and will continue to do so in the coming months. Even though the real estate market has not fully recovered we are certainly entering a “first-time buyers” market and many are finding out that the price is just right for their potential new homes.

Foreclosure Defense Information with Attorney Shawn Yesner

2009-07-22T11:23:00.000-07:00

Many of the clients at Yesner & Boss, P.L. who face foreclosure ask us how we can help them save their home. The following is a video of attorney Shawn Yesner discussing the foreclosure defense process as well as the options that are available to protect you and your family.

Foreclosure Filing Fees Increased

2009-07-08T08:56:00.000-07:00

By: Jeff Thibault

Effective July 1, 2009 the fee imposed for filing many legal actions, including foreclosures, in the state court system has increased rather dramatically. This has caused us at Yesner & Boss, P.L. to notice a flood of recent foreclosure filings at the end of June which we believe is probably due to lenders wishing to take advantage of the previously lower filing fees. Filing fees are paid by the party initiating the legal action which in most cases is the lender. Therefore, this change in the law may not have any effect on those defending a foreclosure action, but it may lead to less filings flooding the courts and possibly lenders being more willing to use other avenues to avoid foreclosure such as loan modifications.

Approved by Governor Charlie Christ back at the end of May, Florida Senate Bill 1718 modifies Florida Statute section 28.241 among other statutes relating to court proceedings and filing fees. This bill went into effect as of July 1, 2009. Previously Florida Statute section 28.241(1)(a) provided that the filing fee for a civil action in the circuit court, such as a mortgage foreclosure, was $295. Under the newly enacted Senate bill, filing fees for mortgage foreclosure and other real estate matters will be based on the amount which is in controversy, in most cases, the value of the loan and interest owed to the lender in addition to items advanced by the lender such as insurance, taxes, etc. The newly enacted statute section 28.241(2)(d) provides that filing fees in these matters will be as follows:

· If the claim is for less than $50,000 = $395.00 ( $100 more than previously charged)

· Between $50,000 and $250,000 = $900.00

· $250,001 and greater = $1,900.00

Additionally, there is an additional fee for each defendant over five of $2.50 per defendant and an additional fee to be paid to the clerk of court of $4.00 is also added to all filings. Additional fees are also added for actions seeking severance, garnishment, attachment, replevin, and distress.

Florida Statute section 57.081(1) still will provide that a person who the court determines to be indigent shall be able to receive certain services of the court, such as filing cases, with the fees of such services being waived.

President Obama Signs the Helping Families Save Their Homes Act

2009-06-26T13:06:00.000-07:00

One of the most overlooked problems in the current foreclosure crisis has been the eviction of renters in good standing from properties in foreclosure even if not through their own fault. In an effort to prevent this the “Helping Families Save Their Homes Act of 2009” was signed by President Obama on May 20th. President Obama stated that “Because many responsible renters are being unfairly evicted from homes that go through foreclosure because the owners haven't been paying their mortgages, it requires banks to honor existing leases, or provide at least 90 days notice for renters on month-to-month leases.” This legislation will require that in the event of foreclosure, existing leases for renters will be honored and in cases of month-to-month leases, tenants are now required to be given a minimum of 90 days notice before eviction. Similar protections are also put in place for section 8 tenants.

“These landmark pieces of legislation will protect hardworking Americans, crack down on those who seek to take advantage of them, and ensure that the problems that led us into this crisis never happen again" said Obama who believes The “Helping Families Save Their Homes Act of 2009” will bring some much-needed help to many homeowners who are trying desperately to save their homes. For more information regarding the Helping Families Save Their Homes Act Click Here to view the Official White House Press Release.

Change In Florida Law Could Allow Private Insurers To Withdraw Sinkhole Coverage On Policy Renewals

2009-06-19T08:49:00.000-07:00

By: Brett Henson

Florida legislators are contemplating changes to the policy requirements for homeowner's insurance carriers that provide sinkhole coverage. Under the current law, authorized insurers in Florida are required to provide coverage for catastrophic ground cover collapse, and an additional premium for sinkhole losses on attached structures and personal property Fl. Stat. § 627.706(1). Florida homeowners have the option of purchasing policies from private insurers or the state-run Citizens Property Insurance Corporation. The proposed changes would allow private insurers to automatically drop sinkhole coverage upon renewal of the policy, unless the homeowner requests otherwise. This practice is already in place for homeowners insured by Citizens. Proponents of the bill include Senators Mike Fasano and John Legg, from New Port Richey, FL. According to Fasano and Legg, the prevalence of sinkhole damage to properties in Hernando and Pasco counties has contributed to the exodus of private insurers, such as State Farm. The Senators argue that allowing private insurers to exclude sinkhole coverage in policy renewals would encourage private insurers to continue to write policies in the state. Critics of the bill argue that it will leave consumers exposed to property loss resulting from sinkholes, and that such coverage should be necessary rather than optional.

The attorneys at Yesner & Boss, P.L., are prepared to handle claims relating to sinkholes. Insurance proceeds resulting from sinkhole damage can provide leverage in negotiating with banks for the payoff of a mortgage. Further, if you have received an initial payout under the policy for sinkhole damage, you may be entitled to accrued interest from the date of loss if the claim was processed for less than the readjusted amount. If you are facing foreclosure, or have sinkhole damage at your property, contact our office for a free consultation.

Lifetime Transfers Of Gifts And The Advantages Of Making Transfers Prior To Death

2009-06-04T08:05:00.000-07:00

By: Jeff Thibault

Transferring property during one's lifetime can be extremely beneficial in several ways including facilitating the client's goals, protecting assets, minimizing tax liability, and avoiding the uncertainty and expenses of probate proceedings. Transfers of assets during one's lifetime can be a tricky subject but can be used extremely advantageous to a client's benefit as well as those to whom the property is transferred. The attorneys at Yesner & Boss, P.L. are well versed in state and federal estate, gift, and generation skipping transfer taxes which allow us to advise clients regarding the benefits and differences of various techniques of transferring assets including lifetime transfers.

Transfers of property during one's life are referred to as inter vivos (during life) transfers whereas transfers that take effect at one's death as provided by one's will or by state intestate (inheritance) laws are referred to as testamentary transfers. One of the greatest benefits of lifetime transfers is the significant tax savings possible as opposed to transfers taking effect at death which will be subject to estate tax.

One of the benefits of making transfers which are subject to gift tax rather than estate tax is the actual nature of each of the taxes themselves. Gift tax is "tax exclusive" which means that the gift tax base does not include the tax payable whereas estate tax is "tax inclusive" meaning that the estate tax base includes the tax payable. The difference between these two taxes is best shown by an example. In the situation where a parennt wants to trannsfer $1 million to their child and the tax rate is say 50%, if the parent transferred that $1 million at death to their child $500,000 would go to estate taxes and $500,000 would be left for the child. If however the parent gifted the same $1 million to the child before their death they would pay 50% of $1 million, or $500,000 to transfer the entire $1 million. Therefore upon death it would cost $500,000 to transfer $500,000 to the child, but by gift it would cost $500,000 to transfer $1 million.

Loan Modifications and The "Making Homes Affordable Act"

2009-05-29T10:48:00.000-07:00

By: Brett Henson

The Obama administration's recent bailout of the financial services industry now includes aid to homeowners facing foreclosure in their primary residential home. One important aspect of the bailout plan is the establishment of incentives for banks to modify loans through the "Making Homes Affordable" Act (MHA). Many commentators have pointed out that while banks have a method of disposing of REO properties, there are a lack of incentives for banks to complete short sale transactions and loan modifications. MHA seeks to make these transactions more advantageous for both banks and homeowners: mortgage servicers can receive $1,000 for successful completion of a short sale or deed-in-lieu of foreclosure , and $1,500 to borrowers for transferring title back to the bank.

MHA also provides $9.0 million worth of financial incentives to mortgage servicers to modify loans. It requires that the homeowner sign a financial hardship affidavit, and in exchange, the Servicer will decrease the interest rate and lengthen payment periods. The goal of the incentives are to reduce payments to 31% of homeowners' pretax monthly income for residential, single family homes, and in which the principal balance is below $729K. It does not apply to individuals who bought properties for investment purposes. A second component of the plan is to allow for borrowers from Freddie Mac and Fannie Mae to refinance if they owe more than their home is worth, up to 105% of the deficiency between the value of the home and the amount owed. Between these two components, the Obama administration estimates that 1 out of 9 homeowners facing foreclosure will receive aid under the plan.

Since the enactment of MHA in February, mortgage industry analysts have pointed to the successes of loan modifications that reduce the principal amount of the mortgage. According to LPS Applied Analytics, modifications that reduce principal have a 25% lower re-default rate within 6 months than other types of loan modification. Further, Fitch Ratings has found in a recent report that homeowners who receive principal reductions are 20-30% less likely to re-default. At Yesner & Boss, P.L., our attorneys and Short Sale & Debt Negotiation team will work with you and your lender in reaching a favorable modification of the terms of your loan.

U.S. Senate rejects "Cramdown Bill"

2009-05-11T06:39:00.000-07:00

On January 14, 2009 we posted an article titled "The Helping Families Save Their Homes In Bankruptcy Act Of 2009." Nearly five months later the U.S. Senate has finally settled the issue by rejecting the bill that was introduced earlier this year by Illinois Senator Dick Durbin. The bill sought to amend certain provisions of the Bankruptcy Code which would have allowed bankruptcy judges to modify mortgage loans on primary residences in a bankruptcy proceeding.

Those who supported the bill hoped that the judicial power of modifying loans would persuade banks to voluntarily modify mortgage loans rather than face the uncertain outcome of a modification in a bankruptcy hearing. However, the U.S. Senate firmly rejected this bills success early this May. Both republicans and democrats sided with the banking industry and against homeowners regarding this proposition including Florida Senator Mel Martinez. On the other side several Senators strongly fought for this bills success in an effort to remedy the current mortgage crisis in the U.S., especially in states such as Florida. Those supporting Senators included Florida Senator Bill Nelson, Dick Durbin who introduced the bill, and the President, Barack Obama.

With the rejection of this proposed amendment to the Bankruptcy Code the power of banks who hold mortgage loans has been reaffirmed. Loan modifications of a primary residence are, as a result, still a voluntary process which banks are not forced to provide and judges are not allowed to do on their own.

Realtor Commission Reductions Eliminated for Fannie Mae Short Sales

2009-03-17T05:14:00.000-07:00

By: Paul Silvestri

Effective March 1, 2009, Fannie Mae loan servicers will no longer require real estate brokers to reduce their commissions as a condition to a short sale approval. According to Fannie Mae, the closing of a pre-foreclosure sale cannot be conditioned upon a reduction of the real estate commission below what the listing agent and borrower negotiated. However, there is one exception: if the total commission is more than six percent of the sales price, this new policy will not apply.

What does this mean for Realtors? Now realtors will need to determine whether the underlying loan in a short sale is a Fannie Mae loan. Realtors now will want to ask the lender or loan servicer whether the loan is a Fannie Mae loan, and if necessary, submit the Fannie Mae Announcement to the lender with the short sale package. Loan servicers still must continue to obtain any approvals that may be required by interested third parties in connection with preforeclosure.

Click here to view the announcement from Fannie Mae.

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Realtors & Homeowners Beware of Predatory Investors & The Option Contract

2009-03-13T12:46:00.000-07:00

We here at Yesner & Boss, P.L. have had many clients recently whose homes have declined in value and who have become victims of predatory investors. Below is what will be the first of many video posts on legal topics we will be adding to our Blog and website in the future. This video is of a recent presentation done by one of our attorneys, Christoper W. Boss, Esq., to Realtors at the Pinellas County Realtor Organization to inform Realtors and their clients of these potential scams that may lead to liability to the Realtor and further financial liability to the homeowner.

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