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General / Litigation

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 can 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!

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. 

Do This When Sued for a Debt

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

Have you just been served with a collection lawsuit? Sucks! Make sure to protect yourself by doing the following things:

  1.  File an Answer to the lawsuit.
  2. Answer any Discovery Requests.
  3. Request Debt Validation from Plaintiff.
  4. Settle (if debt validation is satisfactory).
  5. Attend court hearing to dispute the debt (if no settlement).

File an Answer which includes defense of Statute of Limitations if you believe the debt is too old to be legally collected. Statute of Limitations is 4 years in Texas  – usually calculated from time of last payment. If Discovery was served with the lawsuit, you have 50 days to respond.

Request Debt Validation which will include asking for original loan documents, credit card application, proof of assignment (if Plaintiff is not the original creditor), proof of all charges and payments etc. The plaintiff is the party that is suing you whose name is on the court document.

Settle the Debt by making an offer of settlement to the plaintiff. Start low at about 20% of the total debt, so you have room to negotiate. Lumpsum cash offers are most attractive to creditors. However, ask for a repayment plan if you need one but the settlement amount might be higher. Negotiate that creditor will not file a judgment against you in the meantime OR that the judgment will be released upon final payment.

Attend Court Hearing by showing up at the scheduled date. The court clerk can tell you when the date is, if you call to the clerk. Prepare your side of the story, challenge the debt as needed, and hope for the best. Remember, you can still settle up until the day of the final hearing.

You can find help for the above at a local law library which might have forms for you to use. Some courts also have basic forms available. If uncomfortable handling any of the above by yourself, be sure to enlist the help of a lawyer immediately so you can protect your rights and your credit.

Quick Checklist for Any Contract

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Did you enter into a contract to later feel duped? You agreed to the terms yet feel you were pressured by the other party? If you signed of your own free will, it will be difficult to claim duress. Most courts will not find coercion simply because you now regret the deal or believe the other party “pushed” you into a bargain that wasn’t in your best interest. Duress typically includes the use of threats and/or harassment.

This post is about contracts that don’t come on standard forms and applies where you have the opportunity to make modifications to the contract. We won’t address consumer contracts that are sometimes found to be contracts of adhesion e.g. leases, deeds, insurance policies, credit agreements etc.

Checklist For Your Contract

  1. Who? What? When? Where? This one is self-explanatory.
  2. Is time of the essence? If so, specify the expected delivery date(s).
  3. Is particular quality or materials required? Provide specifications.
  4. What are the due dates for payments? Specify amounts and due dates.
  5. What’s the break-even point? Turn a profit or bargain if desired.
  6. Plan for unknowns? Delays, hidden costs, third parties, change requests etc.
  7. What are minimum acceptable terms? Time, money, quantity, quality etc.
  8. Is the final agreement in writing? Clear, detailed, and signed by all parties.

If you keep a checklist like the one above, you can enter into simple contracts knowing that you’ve covered your bases. If a deal doesn’t feel right, WALK, or stick to your lowest acceptable terms!

What is it Worth to You?

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What is a glass of water worth? $1? $100? It depends on whether I’m in the desert or in the city. Lawyers are often asked to quote “the price” for a case.

Most lawyers are unable to quote an absolute price since not all pieces are within the lawyer’s control – unknown facts, the client, opposing party, opposing counsel, judges, jury etc. In limited circumstances, lawyers will quote an ultimate price.

Some criteria that lawyers (and service providers) use for pricing:

  1. Value added (benefit gained, negative consequence avoided)
  2. Labor (time and effort devoted)
  3. Materials (document production, expert reports, court transcripts)
  4. Difficulty / Complexity (requires expertise)
  5. Speed of Delivery (time constraint imposed by client or other parties)
  6. Ultimate Result/Outcome (finesse, quality of work done)

Next time you’re quoted a price, weigh what each item above is worth to you. You can then be confident that you’re making the best-informed decision for you.

 

 

 

How to Sabotage Your Case

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My house catches on fire. Firefighters arrive on the scene. I begin arguing with them as they instruct me on how to get out. Am I being reasonable? Am I overcome by panic? Know about fires so I doubt the advice?

Clients hire attorneys to provide guidance. Yet, some will constantly question, challenge, and generally resist the attorney’s advice. At best, creates a difficult relationship. At worst, the attorney is unable to work the case effectively. Continued resistance may be due to:

  1. Bad hiring decision.
  2. Personality clash that seriously impairs communication.
  3. Poorly managed anxiety regarding the legal matter.
  4. General distrust of the particular profession/ trade.

If you know more about the law than your attorney, or simply can’t bring yourself to trust the attorney, you ought to change attorneys. If there is a major personality clash, the client should fire the attorney or vice versa. Otherwise, manage any situational anxiety and unearned distrust, and avoid self-sabotage (paying someone to do a job yet refusing to let the person do the job).

Risky Business – Co-signing a Loan

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Just say no. If you can avoid it, don’t. If you must, then you deserve to be fully versed on all the risks. This is one where there is barely any advantage and a lot of exposure.

PROs

  1. Can potentially help build your credit if payments are made timely.
  2. Credit profile will likely improve if the debt is successfully paid off.

CONs

  1. If primary borrower dies, you are still on the hook for the balance owed.
  2. In case of a default, you are 100% responsible for repayment.
  3. Late payments by primary borrower will hurt your credit.
  4. Non-payment by primary borrower may expose you to lawsuits/ foreclosure.
  5. Your debt-to-income ratio may affect your ability to obtain new credit.
  6. You may be unable to qualify for a second mortgage / home loan.

To sum it up, if you must co-sign, make sure it is for an amount you can afford to pay off, know the terms of the loan (especially duration), and instruct the lender to notify you of late payments.

Bracing Yourself for Litigation

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Many enjoy the shenanigans of TV character Saul Goodman (S’all Good Man). He is infamous for encouraging litigation with wisdom such as Who can you sue?; Sue ‘Em Now!”  So, someone has heeded Saul’s advice, or perhaps litigation is unavoidable. How do you brace yourself for what’s coming?

Truth is, litigation is more stressful than pleasurable. Here are four ways to prepare for the mental, emotional and financial demands of a lawsuit:

  1. Budget Money: Get a rough estimate for attorney fees and court costs, then double it. Lawyers can’t always anticipate the level of resistance, rigidity, or hostility that you and/or the other party will put up. The more resistance, rigidity and hostility, the higher the costs.
  2. Budget Time: Schedule time off well in advance for consultations, court hearings, mediation, depositions, etc. Remember to engage the help of babysitters, co-workers, and bosses ahead of time.
  3. Gather Information: Ask your lawyer for a checklist of needed documents. Start early. You may need to complete questionnaires, help gather documents from banks, vendors, insurer, funds managers etc.
  4. Plan R & R: You can expect higher than normal stress levels and periods of heightened anxiety. Rest, relaxation and hobbies will help. A visit with a therapist is not a bad idea either, especially in family law litigation.

Do a cost-benefit analysis for tasks that you will handle yourself rather than delegate, and figure out the opportunity cost. Lastly, keep in mind that constantly discussing the case with family and friends may cause added anxiety and stress.

Keep Calm & Stay Sane During Litigation

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Let’s examine some Don’ts for keeping cool, calm and collected during a legal battle. These are true whether you have a lawyer or not. If you have a lawyer, the primary objective is to get out of the lawyer’s way! It is to your advantage that your lawyer isn’t hindered in any way and is able to effectively advocate your position.

To keep sane while your case is ongoing, here are some Don’ts:

  1. DON’T withhold hard facts from your lawyer. The truth comes out at the most inconvenient of times. Avoidable surprises are a no-no.
  2. DON’T make your ultimate goal a continuously shifting target. You will come across scattered and tentative to the court and opposing side.
  3. DON’T share details of your case strategy with the opposing side (including via friends or social media). Refer questions to your attorney.
  4. DON’T make promises or offers relating to your case without first consulting your attorney. Your lawyer is there to help check blind spots.
  5. DON’T micromanage your lawyer. If you don’t have faith in the lawyer you hired, find another one pronto!These tips should help reduce the stress and anxiety that comes with litigation. You will also be proactive by doing your part to avoid hurting your case. Remember, anything you say or do is indeed often used against you in the court of law.