Estate Foreclosure

Estate Foreclosure

Estate Foreclosure

The majority of the states limit the mortgagee’s right to a deficiency judgment. Some limitations are procedural. For example, many states impose strict notice requirements and the time limits on the mortgagee. Failure by the mortgagee to comply with these limitations can destroy the right to obtain a deficiency judgment.

Likewise, failure to comply with “one action” rules also can destroy the mortgagee’s right to the deficiency judgment. Under such rules, the mortgagee’s only remedy on default is foreclosure, and he must obtain any deficiency judgment incident to the foreclosure proceeding. Two justifications are often cited for this rule: One is to protect the mortgagor against the multiplicity of actions when the separate actions though theoretically distinct, are so closely connected that normally they can and should be decided in one suit.

The other is to compel a creditor who has taken a mortgage on the land to exhaust his security before attempting to reach any unmortgaged property to satisfy his claim.

Similar restrictions sometimes apply to the power of sale foreclosures. In such situations, the exercise of the power of sale is a condition precedent to a subsequent action at law for a deficiency. Some commentators refer to this restriction as the “security first” principle.

There are also important substantive limitations on deficiency judgments. As a result of the depression of the 1930’s many state enacted “fair value” legislation and most of this legislation is still in force. Fair value statutes usually define the deficiency as the difference between the mortgage debt and the fair value of the foreclosed land, rather than as the difference between the mortgage debt and the foreclosure sale price of the land. Depending on the statute, a court or a jury may determine the fair value. Most of these statutes were designed to deal with depression conditions when foreclosure sales typically yielded nominal amounts. This legislation, however, also assumes that even in a stable economic climate, a forced sale of real estate will yield a price significantly lower than otherwise would be obtained by private sales.

Closely related to the fair value approach are the appraisal statutes used in a few states. This legislation requires the court or the person conducting the foreclosure sale to appoint an appraiser, who determines the value of the property. For example, in south California, a statute reduces the deficiency by the difference between the foreclosure sale price and the appraisal amount.


Anti-Deficiency Legislation

Under the traditional approach followed in many jurisdictions, once the mortgage goes into default and the obligation is accelerated, the mortgagee has two options. The mortgagee may either obtain a judgment on the personal obligation and the enforce it by levying upon any of the mortgagor’s property and, if a deficiency remains, foreclose on the mortgaged real estate for the balance or foreclosure on the real estate first and if the proceeds are insufficient to satisfy the mortgage obligation, obtain a deficiency judgment thereafter. Some jurisdictions following the above approach require the mortgagee to elect one of the two options. The Restatement agrees; see Restatement (Third) of Property (Mortgages 1997). Other states, however, reject this “election of remedies” requirement; the mortgagee is permitted to follow both options simultaneously with the only limitation being that the mortgage obligation may only be satisfied once.

Under the traditional approach, a deficiency judgment is calculated by subtracting the foreclosure sale price from the mortgage obligation. If the foreclosure is judicial, the deficiency judgment is obtained in the same proceeding after the foreclosure sale. Where the foreclosure is by a power of sale, the mortgagee obtains a deficiency judgment by filing a separate judicial action against the mortgagor.

Forced sale even under stable economic conditions, normally will not bring a price that will reflect the reasonable market value of the property if it were marketed outside the foreclosure context. Moreover, in times of several economic downturn, mortgaged property often sells for substantially depressed prices. To make matters worse, mortgagees occasionally purchase at the foreclosure sale for a deflated price, obtain a deficiency judgment and resell the real estate at a profit.

The great depression of the 1930’s, as might be expected, produced a substantial amount of varied state legislation to provide relief for mortgagors. Perhaps best-known were the various moratoria statutes.  Such legislation different from state to state. Some statutes gave courts authority to grant foreclosure postponements on petition of mortgagors in the individual case. Other statutes extended the period of statutory redemption beyond the usual period or stretched out the periods of time in a foreclosure action. Most of this legislation was upheld against federal and state constitutional attack. Constitutional law students are a family with Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), which upheld the Minnesota legislation, finding it not to be an unconstitutional impairment of the obligation of contracts.

Bank Fees Are Too High

Join the crowd. Everyone is screaming. But you may be able to cut your costs. When you opened your checking account, you might have looked only at how much interest you could earn. Now you know that the best account is the one that carries the lowest fees.

To find that account, start by analyzing your recent bank statements. Circle every fee to see how much you are spending each month (it could be as much as $300 a year) and list what all the fees were for.

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How low does your monthly balance go? How many incidental services do you use? How large are your savings deposits there? How much interest have you earned on your interest paying checking and does it exceed the fees you pay?

Armed with this information, sit down with a bank employee and say that you’d like to find ways of lowering your fees.

Maybe you have an interest paying checking account but your balance keeps falling below the required minimum. That might cost you $7 or more each time. You will save money over by choosing no interest checking with a lower minimum balance.

Maybe you write so few checks that you can manage on a no-frills account.

Maybe your fees will drop if you keep more deposits in the bank. If you have a CD somewhere else, move it to this bank when it matures.

Maybe your bank charges fees for using its ATMs. If so, you will save money by taking $90 once a week rather than $30 three times a week. Some types of accounts may offer free access to ATMs.

Maybe you are tapping your account through another bank’s ATM. That always costs more than using your own bank’s machines. You may even pay twice for the same transaction. One fee goes to the banks and the ATM network, the other fee goes to the owner of the ATM (which may be the bank or an outside company).

Maybe it costs less to pay by debit card or automatic electronic transfer than to pay be check. Automatic transfers work for any fixed monthly payments: mortgage, rent, auto loan or lease, condo maintenance, life insurance premiums, budgeted utility bills, and regular monthly investments.

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Fixing Bank Mistakes

Cash; how many times have you cashed a check in a hurry, then walked away without counting the money? Maybe you think the teller is always right. Maybe you are intimidated by the line of grumpy people behind you. But if you count the money at the bank door and find that you are $20 short, you might be stuck. Tellers are not allowed to hand over extra money on a customer’s say so. After all, you could have slipped the missing $20 into your pocket before you went back to the teller’s window.

Always count your money before leaving the window. If you discover an error later, give your name, address, and account number to the manager. If the teller winds up the day with the right amount extra cash, you will be reimbursed.

Deposits; Teller sometimes err when crediting deposits, for example, entering $100 when you actually put in $1,000 into your Atlanta title loan account.

Double check every transaction for accuracy before leaving the window. What if the teller credits $1,000 to your account when you gave him or her only $100? Don’t spend the money. The mistake will be found and in banking, there’s no finders keeper.

Automated Teller machines

ATMs goof, just as people do. They short change the occasional customer, giving you $70 when you asked for $100. Sometimes they accept cash and checks without crediting them to your account.

Never deposit cash in an ATM. It is impossible to prove how much you put into the envelope, so losses are sometimes hard to recover. Checks are easier to find or replace.

Report mistakes right away. Some banks install telephones next to their ATMs for that purpose, although they may be answered by bank personnel only during banking hours. When you call, leave your name, address, account number, the amount of the loss, and the location of the ATM; then put the same information into a letter. You will have to wait until the accounts are balanced, but if the machine is over by the sum you reported, you will get your money. At the bank’s own ATM machines, the error might be fixed at the end of the day. But it will take an extra day or two (and sometimes weeks) if you used an ATM at another bank.

Deposit Slips; It always astonishes me to see the trash baskets near ATMs overflowing with deposits slips with Atlanta title loan.

Federal Deposit Insurance

Do not waste your time searching through sub-clauses, thinking to find a loophole in the coverage. The government will meet every obligation of the deposit insurance fund and title loans in Atlanta. The S&L bailout of the 1980s is proof of that.

Federally insured money is entirely safe up to $100,000 and more, depending on how the accounts are held. Safe, in a failing bank.  Safe, in a bank that pays cockeyed interest rates. Safe, even with a crock or incompetent at the institution’s helm. So do not worry, be happy, and collect the highest interest rates that you can find. You get $100,000 worth of deposit insurance for each of the following accounts, or groups of accounts, held in the same financial institution:

All the accounts in your name alone, added together, including any accounts in the name of a business you own as a sole proprietor.

Your share of all retirement plan whose investments you control including Individual Retirement Accounts, Simplified Employee Pensions, and Keoghs. If you have multiple plans in the bank, the shares are lumped together as if they were a single account.

Your share of the retirement fund that you company managers say, a traditional pension plan or a company run 401(k). Each person’s interest in the fund is normally insured for up to $100,000, assuming that the banks meet certain capital requirements for safety and soundness. If it does not, the FDIC insures the fund as a whole for $100,000. That gives each participant much less protection, but so far, this harsh provision of the law has not been applied.

Each “in trust for” account or “payable on death” account held for a member of your immediate family child, spouse, and grandchild. There can be multiple owners and multiple beneficiaries, each with his or her own FDIC coverage. For example, if you and your spouse open an account in trust for your three children, you are insured for up to $600,000: $100,000 for each beneficiary of each account owner.

Living trusts and family trusts usually aren’t insured separately. Neither is in trust for or payable on death accounts if the beneficiary is someone other than your child, spouse or grandchild. Instead, such accounts are added to those held in your sole name.

Each account owned by a partnership, corporation, or unincorporated association, such as a union, homeowners association, fraternal organization or title loans in Atlanta.

For Fast, Fast Relief

When you have to get money to someone in a hurry, a check might serve if it is delivered fast. Use a commercial overnight delivery service or the post office’s Express Mail. If the recipient has nowhere to cash the check, use one of the following quick delivery systems:

An ATM card; if the recipient has a card you can put money into his or her U.S. bank account. It can be withdrawn at a cash machine abroad and you will get the wholesale rate on your currency exchange.

Postal money orders sent by Express Mail; but you can count on rapid delivery only within the United States. International money orders are governed by country to country agreements and may take 4 to 6 weeks to arrive.

Western Union; some agents, and the 800 service, are available 24 hours a day, 7 days a week. Cash can be transferred within the Unite State, Puerto Rico, and to more than 100 foreign countries in 15 minutes or less. Funds wired elsewhere usually take at least 2 business days because delivery goes through local banks. The recipient can pick up the money at any Western Union agency. For the address of the closest one, ask the local agent or the 800 operator.

The State Department; it’s the agency of choice if your son was robbed in Bangladesh. In an emergency, it will send cash within 24 hours to any American embassy or consulate for a fee of $15. All you have to do is get the money to the State Department, using Western Union, bank wire, overnight mail, or regular mail.

Your bank, for big money transfers within the United States. It can wire money to another bank for pickup the same day or one day later. But mistrust banks for international transfers. Unless the foreign bank pays a lot of attention, a transfer that ought to take a day can take a month.

Ask what identification the recipient will need in order to pick up the money. Usually, two proofs are required, like a passport and driver’s license with a picture attached. Sometimes he or she will also need a code word or authorization number that you furnish.

If you run short of cash or travelers checks, or your wallet is stolen, there are several ways to rescue yourself, get some at home to send you money, using one of the techniques just described.

How Fast Will Your Checks Clear?

There you stand, like a kid with his nose pressed against a pet store window. Your money is romping behind the glass and you cannot get at it. Any checks you deposit may be held by your bank for a specified number of days.

If you write a check against deposited funds too soon, it will probably bounce. You will pay $15 to $20 for the error, with some banks charging as much as $30. To bounce proof your checks, sign up for overdraft checking. Alternatively, move your account to a friendly bank that will honor checks written against uncollected funds although you will probably be charged for the service. A really friendly bank will waive the fee.

Under federal law, banking institutions normally must give you access to at least $100 of your deposit on the next business day, and must clear the rest of your deposit on a specified schedule (with some quirky conditions here and there). All the following limits apply to checks deposited to your account before the bank’s cutoff hour generally, noon for ATM deposits and 2 pm for deposits made in person. Add one business day for checks you deposit after the cutoff. The general schedule:

One business day for federal, state, and local government checks, electronic payments (like direct deposit of a paycheck or Social Security check), postal money order, cash, personal check drawn on the same bank, cashier’s check, and certified checks. To get one day access, certain checks have to be deposited in person or sometimes on special deposit slips. Ask about this if your timing is critical.

Two business days for local checks.

Five business days for out of town checks.

On checks deposited on a business day (not Saturday) in the bank’s own ATM: one business day for US Treasury checks; 2 business days for cash, local checks, cashier’s checks, and state and local government checks, and 5 business days for out of town checks.

On checks deposited in an ATM not owned or operated by your bank: 5 business days.

On checks you mail to the bank: one business day after receipt by the bank for US Treasury checks; 2 days for cashier’s checks, postal money orders, and local checks including the checks of your own state and local governments; 5 days for out of town checks, at many institutions, most of these rules are irrelevant.

Joint Property For Unmarried

It passes automatically to the other without a will and without probate. This is a strong case only for committed couples, gay couples, for example, whose families disapprove of the relationship and might challenge a will. A carefully drawn will usually can’t be broken, however, except by a surviving spouse who was not left the share of the property required by state law.

It is a sign of a good faith.

It is convenient. A mother and daughter living together may want a joint account for household bills.

The strong case against

If you want to take your property out of joint names and the other person refuses, you may have the devil’s own time getting it back. Only bank accounts are simple to reclaim. You just take the money out (unless the other person got there first). Either owner can empty a joint bank account. You would have to sue to get your money back.

Atlanta Title Pawn Company

You might need both signatures to sell an investment or to cash a check for the proceeds of a sale. What if your ex-mate gets sore or leaves town?

Say you put your investments in joint names with your son, who manages them for you. His business goes broke. His half of your property could be attached to pay his debts. (He can manage your money just as well with a power of attorney or through a trust.)

The relationship might end but not joint ownership. For example, say that you and a boyfriend own a house together. Even if the boyfriend buys you out, you are still on the mortgage and are fully responsible for the debt. Only the lender can release you and the lender may refuse to do so. If your boyfriend (ex-boyfriend) quits paying the mortgage without your knowledge, the default will show up on your credit report. Ditto any liens that your ex’s creditors put on the house. If the bank comes after you for the mortgage payments, you will be supporting your ex-boyfriend’s real estate investment and getting nothing in return (unless a written agreement allows you to force the sale of the house to recover the money you put up).

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All joint property is taxed in the estate of the first owner to die, except for anything that the survivor can prove he or she paid for. These rules, incidentally, apply only to joint owners who are not married.

Lovers and Other Roommates

You are splitters. Each handles personal expenses and you work out a system for paying joint bills included car title pawn. A 50/50 split is fair only if your incomes are roughly equal. If one of you earns two-thirds of your combined income, that person should assume two-thirds of the rent and two third of the grocery bills. Otherwise, the one with the smaller paycheck is subsidizing the other. If there is going to be any subsidy at all, it should be from the richer to the poorer, not the other way around.

Long time lovers drift toward pooling some of their money. Still, you often live on the tips of your toes, almost ready to run. So for property that is hard to unwind, separate ownership is best. If you buy a piece of real estate together, do it as tenants in common. Write an agreement for sharing expenses: how you will divide the taxes, insurance, and mortgage payments. What happens if one person quits paying his or her share? If the relationship fails, how will you get your money out? Will you put the house on the market and divide the proceeds according to the percentage each person put up? Will one person buy the other out and if so, which? How will you determine the price? A lawyer should draw up these agreements (preferably two lawyers, one of each of you). You will never think of all the contingencies yourself. You should also have the contractual right to force the sale of the house if you are having to shoulder more of the cost than you bargained for.

I one of you dies, will his or her share be willed to the other or would a written contract be a safer choice (remember that minds, and wills, can change)?

Ever since the Lee Marvin case in 1979, which raised the possibility of suing for “palimony,” that issue has hung over live in relationships. If, say, the man works and the woman gives up her job to follow him, does she have a right to support if they fall out? Should one partner get some of the money that the other accumulated during their relationship? Denver attorney William Cantwell has been thinking about this problem for a while and offers you his “Wallet Card NonMarvinizing Agreement,” to be signed by both parties at car title pawn Atlanta.

Low Income

Low Income

Low  Income

Economy or no frills checking; these accounts are for people who keep low average balances and write just a few checks a month and pay at Atlanta title pawn. There is usually a small monthly fee and, often, access to your account by way of an automated teller machine. The first 10 or 15 checks may be free, with fees of 50 cents or more for each check over the limit (if you write a lot of checks, you should be in regular checking). This simplified service is offered by about half the banks, although it may be restricted to students or the elderly.

If you sometimes bounce checks or want to have instant credit on tap, go for: Overdraft Checking; This lets you write checks for more money than you have in your checking account. At some banks, checks will be covered with funds switched from your savings account. At others, the checks are paid with a loan on which you are charged 10 to 16 percent. Some banks lend only in $50 increments, so if you write a check for $7 more than you have, you will have to borrow $50 to cover it. Monthly repayments may be deducted from your account automatically. The right to use overdraft checking may come free or it may cost you $15 to $20 a year plus a fee every time funds are transferred. In either case, you pay interest on the loan amount. The fees ain’t cheap, but they’re cheaper than bouncing a check.

Free checking: No bank can advertise that its checking account is free unless it truly is. That means no monthly maintenance fees, no per check fees, and no fees for falling below the minimum balance. The only allowable charges are those for ATM use, bounced or stopped checks, printing checks, and a few other minor items.

Money market mutual funds; these, too, are normally for investors. Rates of interest change daily but are always higher than those on the banks interest-paying checking accounts. The funds that offer checking (about half of them do) charge lower fees than banks and zero for falling below the minimum balance. You can arrange to have your paycheck deposited directly. Most won’t cash checks smaller than $100, so they are no good for everyday checking. But at this writing, a couple takes checks in any amount. You may want to use your money fund as a small business checking account or use Atlanta title pawn.