All Posts By

myeverymanlaw

4 Unusual Strategies for Any Dispute

By | General / Litigation | No Comments

There is the technical strategy to handling a dispute, and then there is the human element. Have you ever  been in a dispute where the other party was right about the facts but was so obnoxious that you refused to give in?  Well, that’s the human element to negotiation that’s often overlooked. The overarching strategy is that of reasonableness. You must appear reasonable to the opponent and/or the court. The appearance of reasonableness is all that is needed although the more reasonable you are in everyday life, the more convincing you’ll be. shouting-man-1170x500

4 Strategies To Appear Reasonable

  1. Don’t be rude.  No one (including a lawyer) is motivated to agree with, or cooperate with someone who is rude to them. Use your manners even while disagreeing. Listen, or at least appear to listen with minimal interruption. Use your poker face and if unable to speak politely, at least maintain a neutral tone of voice. Yes, the other side might be annoying but the most composed person wins.
  2. Don’t be a jerk.  Jerks intentionally set out to provoke or bully others, so as to get their way. This approach never helps your case because it causes people’s defenses to go up. This type of forcefulness may get (false) temporary compliance if at all. This is why some people will pretend to agree then back out. You want your opponent’s defenses down when negotiating. The person with the calm but assertive approach wins.
  3. Do tell the truth. Unless you are intentionally choosing to omit some information for leverage purposes, do tell the truth in the things you decide to disclose. If caught in a lie, you will put the other party on guard and he/she will be less cooperative overall. This isn’t very conducive to getting you to a favorable outcome.
  4. Do keep your word. Deliver on promises made. If a deadline isn’t going to be met, communicate it to the other person ahead of time.  This shows respect and integrity. It conveys to the other side that your word is bond.  This is important because if it ever gets to a point where you have to make threats, those threats won’t be viewed as empty threats and you will be taken seriously even if you’re actually bluffing.

Appearing reasonable does not mean that you should be passive in a dispute. It means that your forcefulness must come mostly from your intention, not your action. It should be an underlying, controlled current that is directed towards getting you to your desired outcome, not directed at the other party or the lawyers. Developing the appearance of reasonableness will get you more wins, with a lot less resistance from the opponent. It will also come in handy if you’re in court.

7 Steps to Consumer Due Diligence

By | Collection Defense, Consumer Rights, Foreclosure Defense / Real Estate, General / Litigation | No Comments

Due Diligence is a phrase that’s commonly tossed around in the consumer world, but has a special meaning within the context of a legal dispute. In a broad sense, it refers to the level of judgment, care, prudence, and investigation that a person would reasonably be expected to do under particular circumstances. If a consumer hasn’t done his/her due diligence, it could mean the difference between winning and losing a case, and will pose challenges to being able to dispute the contract terms or performance of the contract.

In the legal world, Due Diligence actually means a complete and appropriate review of documentation and facts by a party, before purchasing a good/service, or engaging in business with another party. It is a full and complete review using the advice of professionals as needed, so that when one is done, one knows all there is to know, before buying or engaging in business.

Due Diligence IS NOT similar to kicking the tires on a car. Due Diligence IS similar to taking the car to a garage, having it checked out completely, and personally checking out every part that does not require the expertise of a mechanic.

BASIS DUE DILIGENCE BEFORE ENTERING INTO CONTRACT

  1. Who exactly is going to be entering into the agreement?
  2. What is the price/ consideration for the products or services?
  3. What exactly are the products or services to be delivered?
  4. When and where are the payments, products, or services to be delivered?
  5. How long is the term of the agreement? (One-time; Month-to-Month; A year etc.)
  6. What constitutes a default or non-performance under the contract?
  7. What is the cancellation policy or early termination policy?

At minimum, all consumers should be fully clear on the 7 terms listed above, before entering into any agreement. There is no real valid excuse under the law for not clarifying these basic questions prior to signing any contract. Depending on the type of contract or transaction, there might be many more questions needed to be asked. Do your due diligence accordingly.

In addition, the consumer is required to read the contract thoroughly (front and back) prior to signing it (or hire someone to help), to ensure that the verbally communicated terms are consistent with the written contract terms. Do your due diligence. The best time to challenge a bad contract is before entering into one!

Inheriting Real Estate from a Sibling

By | Foreclosure Defense / Real Estate, General / Litigation | No Comments

Siblings of a deceased most commonly inherit real estate in two ways – through conveyance by Will of the deceased, or through the State’s Intestacy laws. Intestacy laws are those laws that apply when there is no Will, or when the time period to probate a Will has completely closed. A person could gift the property to a sibling by putting it into a Will or Trust while alive, or in some instances, by filing the proper property documents for a survivorship transfer.

In Texas, a Will must be submitted to probate within 4 years from the date of the death. In most instances, if not done within the 4 year period, the intestacy distribution laws must be followed. In very limited situations can a Will be probated after the expiration of the 4 year period. Inheritance-3-2-boost

Things to Keep In Mind Under Texas Intestacy Laws

  1. The term “Children” includes biological and adopted children.
  2. If the Property is considered Separate Property of a married person, the Children inherit 100% of the Real Property. However, a surviving spouse has the right to live on the Property until his/her death.
  3. If the Real Property is considered Marital/ Community Property, and ALL deceased’s children are also children of the surviving spouse, 100% of the Property goes to the surviving Spouse.
  4. If the Property is considered Marital/ Community Property, but NOT ALL deceased’s children are children of the surviving spouse, then the surviving spouse gets 50% and all of deceased’s children split the remaining 50% equally.
  5. Anytime a person that could have inherited is no longer alive, we pass that person’s share to his/her children.
  6. The law always first looks to pass down (to descendants), then if not possible, next looks to pass up to parents (ascendants), and then finally looks to pass around to siblings if one parent is dead, or if both parents are dead.
  7. Siblings only inherit under Intestacy laws, if the deceased had no children, AND one (or both) of the deceased’s parents is dead.

This is a broad overview and summary of the main parts of the intestacy distribution laws for real property. To obtain an exact determination of your right to inherit from a family member, consult a Real Estate or Estates/Probate lawyer. The lawyer will take all circumstances into account, thoroughly review your family tree, and also make sure the proper documentation is filed into the Property Records to secure your ownership rights.

Four Legal Resolutions for 2018

By | Collection Defense, Consumer Rights, General / Litigation | No Comments

If you are like the 90% of people, chances are you made one or more New Year’s Resolutions for 2017 and did not follow through. Legal Resolutions may have more negative consequences associated with failure to follow through. Early legal intervention saves time, money and emotional stress. There’s nothing worse than finding out that a small issue that could have been handled with little emotional and financial stress has now snowballed into a major disaster. Take the first step towards your legal resolutions TODAY.  55ef3da0dae81ce9ac006099e3035dff--first-week-new-years-resolutions

Whatever your New Year’s Resolutions, the simplest way to accomplish them is to constantly chip away at them. Forming new habits is key. Take the initial steps and if more action is needed, you will have the momentum to follow through, by mere habitual practice. You don’t need to have a clear plan of execution for the whole month, quarter, or year, just for what needs to be done TODAY. Do this everyday and your new year’s resolution is accomplished soon enough!

 FOUR LEGAL RESOLUTIONS FOR 2018

1. Get your criminal record cleared. The state of Texas has a statute that permits eligible individuals to expunge or seal their records. Find out if you are eligible and get this done as soon as possible because these records will haunt you. Criminal records can have a devastating effect on your chances for employment, renting, immigration, admission into law school, professional licenses and so on. Shocking? Yes. I agree it isn’t fair, but that is where clearing your record comes in. It can be done.

2. Handle Collection Notices. Following several Collection Notices, creditors will usually file a lawsuit and seek a judgment. Be proactive. If you’ve been receiving such Notices, take a deep breath and review them. There could be a settlement offer in the Notice (everything is negotiable), or it could be a case of mistaken identity. You won’t know unless you address the issue. If you need help with disputing the debt or settling it, seek legal help before the creditor takes a judgment against you. A judgment on your credit report is one of the worst things that can be on there, in terms of how negatively your report will be viewed by future creditors, especially mortgage lenders. Don’t delay. Act today.

3. Know your credit score and improve it. According to Forbes.com the average credit score has gone up over the years and is now 700. People with scores 750+ get the better deals, best interest rates (cost of borrowing), and much more access to credit. Chances are your score could be improved. Talk to a professional TODAY that can analyze your credit reports and guide you in what actions to take to improve your score. Did you know that your score affects all aspects of your life such as interest rates, credit limit, renting, insurance quotes, employment etc.? Again, this may not always be fair, but this is the way the system works for now. You owe it to yourself to at least get expert eyes to look at your reports to see what you can do proactively to improve your score.

4. Get your Will drafted or updated. We all need one of these – no ifs or buts. When we are young and healthy, we tend to feel invincible. The idea of a Will may seem ridiculous or a little morbid. You may say; “I am too young”; or “Nah, I don’t own any assets that can be put in a will.” The truth is that you do need one, unless you want the State to decide what to do with your things. If you have brought a child into this world, you definitely need a Will. You owe it to your loved ones. A basic will provides for expenses, lists an executor or personal administrator, and provides for specific distribution of real and personal property. It will also appoint a guardian for minor children. People over age 21 with no children may need one too, at least to appoint a power of attorney for medical/ incapacitation reasons. It always makes it easier for loved ones left behind to sort things out. Already have a Will? Could be time to review and update it.

Consult an attorney for more information on any of the above, or contact our office for help. If we don’t handle an area, we have recommendations for excellent attorneys. All the very best in 2018!

Homestead Protection & Multiple Properties

By | Foreclosure Defense / Real Estate | No Comments

The Homestead of a family or single adult is protected from forced sale for purposes of paying debts and judgments, with the exception of limited situations such as mortgage lenders, taxes, and home improvement loans. Homestead protections are available only to individuals—not corporations, partnerships, or LLCs.shutterstock_343813226_gold-house

Generally speaking, Texas only allows a property owner to claim a Homestead Exemption on one property – the primary residence. Legal primary residence is one that is occupied most of each year by the homeowner but the focus is on intent not actual occupancy. Second homes, vacation homes and investment homes are not primary residences and won’t qualify for homestead exemptions.

However, there are instances where one may claim more than one property as a homestead. In Urban areas, a homeowner may claim contiguous properties as his/her homestead i.e. adjoining or adjacent properties. The properties must touch along a boundary or share a common area. To make a homestead designation on contiguous properties, the county may require that the contiguous properties are in the same exact names according to the deeds (recorded title).

It is useful both for property tax purposes and for protection from creditors, to file an affidavit designating the homestead in the real property records of the county where the property is located. NOTE: This is not the same as the form submitted to the county’s property tax office for tax exemption.

NOTE: this is not the same as the form filed with the property tax office.

Tax Liens and Foreclosure

By | Foreclosure Defense / Real Estate | No Comments

On January 1st of each year, a tax lien attaches to all real property in Texas, to secure the payment of property taxes. This is pursuant to the Texas Property Tax Code. The Property Tax Code also sets this lien’s priority in terms of superiority (or simply put, seniority). This means that even if the tax lien attaches to a property after another valid existing lien, the tax lien is considered senior to the other lien e.g. mortgage lien, or judgment lien.  MoneyDNA

Property Tax bills are mailed out to property owners in October and November of each year. Payment is due by January 31st of the following year and by February 1st, the payment is considered delinquent. Interest then accrues at a rate of 1% per month or 12% per annum.

Tax Suit:
At any time after tax payment on Property becomes delinquent, a taxing unit may file suit to foreclose the lien securing payment of the tax. In reality, taxing units rarely exercise this right immediately. Most times, property taxes will remain delinquent for at least two years before a taxing authority will initiate a tax lawsuit. However, it is best to try and resolve the delinquent payments before a lawsuit is filed.

Judgment:
If the past due payment remains unresolved after notice of the lawsuit has been given to the property owner and any lienholders, the civil court will grant an order for foreclosure of the lien and for sale of the real property.

Sales:
In Texas, tax foreclosure sales are done by public auctions that take place on the first Tuesday of each month. Following the sale, the property owner has a right of redemption, but that comes with a higher interest rate and may include additional costs. For more on redemption, see our video: Getting Property Back After Tax Foreclosure.

Recourse vs. Non-Recourse Loans

By | Collection Defense, Consumer Rights, Foreclosure Defense / Real Estate, General / Litigation | No Comments

Recourse loan means that the lender may collect the outstanding loan balance, even after seizing and selling the collateral. Non-recourse means the lender only gets up to the value of the collateral and the rest of the outstanding balance is wiped out.  The outstanding balance after applying sale proceeds from collateral, is called the deficiency. The lender has two years from date of foreclosure sale to file suit to collect any deficiency.

Some states don’t allow recourse loans at all and are therefore called non-recourse states. Texas is generally a recourse state. Commercial loans are all recourse loans, unless specifically negotiated as non-recourse. Purchase Money Loans have recourse but Home Equity loans and Reverse Mortgages have no recourse unless such loans were obtained by fraud. Purchase Money Loans are those loans used to actually buy the property. 

Many homeowners have two mortgages on their home – a first and a second mortgage. Lenders rarely pursue deficiencies on the first mortgage unless the deficiency is a sizable amount. Following foreclosure by the first mortgage lender, second mortgage lenders will sometimes pursue a deficiency judgment.

In a deficiency lawsuit, the borrower/ homeowner has the right to argue that the property was sold for less than the Fair Market Value. If able to prove this to the court, the deficiency amount will be adjusted by applying the appropriate Fair Market Value to the then existing loan balance (as at the time of the foreclosure sale.) If successful, this will reduce the overall deficiency amount. 

Texas Law – Insurance Claims on Home Damage

By | Consumer Rights, Foreclosure Defense / Real Estate | No Comments

Starting Sept. 1, House Bill 1774 becomes law in Texas. Under this new law, many insurance companies will pay property owners as little, as late as possible. Texans can expect only more delays and denials.

The new law reduces the amount of interest insurance companies will have to pay to homeowners if they take too long to pay for a claim. Currently, if a court finds that the company delayed payment, the company must pay the claim with 18 percent interest. The new law reduces the interest down to about 10 percent.

The law also reduces the amount of attorney fees that homeowners can recover if they don’t estimate with 80 percent accuracy the amount of damages done to their home when they file suit against the insurer.

This might make it harder for homeowners to demand timely payment for the damages done to their homes and will make it more difficult for them to find lawyers willing to sue insurance companies.

Be diligent in filing and following up on your claim. If too much time has passed or you believe the claim was underpaid or wrongfully denied, find a lawyer that is willing to go up against the insurance company.

Quit Using Quitclaim Deeds!

By | Foreclosure Defense / Real Estate | No Comments

Maybe you’ve been told you can be released from liability for a mortgage by signing a Quitclaim Deed. This isn’t true. If you are attached to the loan via a Promissory Note, and not just to the deed/title, then even after you sign over your interest using a Quitclaim deed, you will still be liable for the loan. The Quitclaim Deed will not remove you from the debt obligation.

Questions to See Who is Liable For the Loan

  1. Is the debt (mortgage) showing up on your credit report or was your name simply just on the Deed document?
  2. Does the mortgage company show you on the Note as a borrower?
  3. Does your name show up on the mortgage statements?
  4. Is there a Deed to Secure Assumption from the other party?
  5. NOTE: Do not go by what’s showing up in the property tax records.

In Texas, sometimes a spouse is added only to the Deed pro forma (as industry habit), but not added to the mortgage debt (Note). Make sure first which of these documents you are attached to. Sometimes the Promissory Note will be called by  other names so check with the lender if in doubt. A short-cut is to check to see whether your name is on the mortgage statements – if so, you are on the Note. If your name is attached to the Note, the spouse/other party will need to refinance to remove your name, or find a buyer – no other way around it.

In the meantime, you could still indicate your intention to relinquish all rights and all liability. The proper way to do this is by using a Deed to Secure Assumption which will be signed by the other party who is assuming full responsibility for the mortgage debt. This must be used in conjunction with a Warranty Deed that will transfer your interest to the other party.

The Deed to Secure Assumption is a contractual agreement that may be filed into the county records for the world to see. It says that the other party has promised to be 100% responsible for the loan, even if your name is still attached to the loan. This does not mean the lender has to agree to it, but it gives you a chance to go after the other party for payment. The Deed to Secure Assumption also gives you the power to force sale under certain circumstances/ conditions.

So, although a Quitclaim Deed may be used to transfer property rights, it won’t release you from the debt and it is not the best way to transfer title as it does not come with any warranties. Title companies frown upon them for that reason.

How to Determine Legal “Owner” of Real Estate

By | Foreclosure Defense / Real Estate | No Comments

How can they tell me I’m not the owner!? We hear this question too often. Usually, a loan officer, realtor, or title company has told someone that they ARE NOT owner of record and the person is shocked and very upset. People have good reasons why they may think they own a particular property but the law is only concerned with legal ownership.   Property Deeds

Common Reasons Why People Believe They Own Real Property:

  • BUT I’ve paid the taxes for years!
  • BUT the property tax office has my name on the property account!
  • BUT I’ve been living on and maintaining the property for years!!
  • BUT I’m the one paying the mortgage/ who paid the mortgage!
  • BUT my grandpa left it to me when he died!
  • BUT we had an agreement that I would own the property!

So, what does the law say about ownership? The law says that we must look to the title/ deed records to determine ownership. Period. Absent a court order to the contrary, whoever is currently showing of record in the property deed records, IS the legal owner. If the legal owner is deceased, then the Estate of the deceased is the legal owner until the proper documents are filed by the heirs.

None of the reasons listed above matters UNLESS YOU ARE ALSO showing as current owner in the property deed records. This is because actual title to property is seen as being separate from the property tax account, separate from the mortgage loan, and separate from actual possession of the property.

If you aren’t sure whether you are the owner of record, check with your local county clerk. This will help avoid a situation where you pay thousands of dollars in taxes, maintenance, and mortgage payments, to later find that you are not the owner.

If you believe you should be showing as owner and are not, there are things that can be done to correct the situation. A lawyer can help you draft and file the proper deed documents, and/or help you clear inherited, court awarded, or other property into your name. This will keep the chain-of-title clear and put title into your name as owner of record.