New Book: How to Avoid Foreclosure in California, 2012 Edition by Howard L. Hibbard

July 6, 2012 By Leave a Comment
Share on TwitterShare via email

An Easy Guide to Saving Your Property or Walking Away With Cash, distressed property owners can quickly get answers to their questions and understand their options on mortgage default, loan modification and tax consequences. This handy 30 page book is specific to California law.

Burlingame, CA, July 06, 2012.  Real estate Attorney Howard L. Hibbard, has announced the release of his new book titled, “How to Avoid Foreclosure in California, 2012 Edition: An Easy Guide to Saving Your Property or Walking Away With Cash,” published by Cheka Press.

 

Despite the overwhelming amount of information available today for distressed property owners trying to avoid foreclosure, most of it is lengthy, hard to understand, legalese. Mr. Hibbard takes this to heart and condenses his information into an easy-to-follow 30 page book, that gives answers to the most pertinent questions on mortgage default, loan modification and tax consequences.

 

He starts out by introducing a Distressed Property Owners’ Options Chart that’s chalk-full of valuable information broken down into eight different property types and the various options available for avoiding foreclosure. He then goes a step further by telling distressed property owners how they can walk away from their property with money in their pocket.

 

Mr. Hibbard also covers the latest 2012 California legislation and its impact on distressed property owners. In easy to understand terms, he explains Senate Bill 94 that prohibits advanced fees on loan modification, as well as Senate Bills 931 and 458 that forgive debt after short sales. He also reminds us of earlier legislation on mortgage debt relief that is due to expire at the end of 2012. In addition, he explains how to avoid falling victim to lawsuits, as well as scams to collect money.

 

You can purchase “How to Avoid Foreclosure in California, 2012 Edition,” as a paperback or eBook through Amazon.com and Smashwords.com.

 

About the Author

Howard L. Hibbard is owner and principal attorney of the Law Office of Howard L. Hibbard, founded in 1979. With over 30 years experience as a trial attorney in both state and federal courts, his primary focus has been on commercial and residential real estate matters, including construction defect lawsuits. Mr. Hibbard is also author of The Legal Pitfalls of Short Sales and Foreclosures, and teaches seminars on how to avoid foreclosure through loan modification programs, and other important information on buying and selling distressed properties.

Filed Under: Bankruptcy, Distressed Homeowners, Real Estate Law, Short Sales and Foreclosures

WCR Luncheon Series February 9th: Options to Avoid Foreclosure Presented by Howard L. Hibbard

January 27, 2012 By Leave a Comment
Share on TwitterShare via email

Do you know all the options available to avoid foreclosure? Can you name the five critical legal areas real estate brokers should be aware of when dealing with a short sale and loan modification? Come to WCR’s February 9th business resource luncheon to hear real estate attorney, Howard Hibbard, of the Law Office of Howard L. Hibbard, present his “Distressed Property Owners’ Options Chart.”

Dealing with daily distressed clients who seek legal advice for their properties underwater, Mr. Hibbard has been inspired to create helpful education tools to simplify complicated subject matters.

In addition, Mr. Hibbard is author of Legal Pitfalls Involving Short Sales and Foreclosures and his latest booklet, How to Avoid Foreclosure in California, 2012 Edition.

For more information and to register for this event, visit the San Mateo Chapter of Women’s Council of Realtors (WCR) website at http://www.smwcr.org.

Filed Under: Classes, Distressed Homeowners, Real Estate Law, San Mateo County Realtors, Short Sales and Foreclosures Tagged With: ,

DISTRESSED PROPERTY OWNERS OPTIONS CHART: Alternative Solutions for Californians to Avoid Foreclosure

November 23, 2011 By Leave a Comment
Share on TwitterShare via email

The following chart is a short-cut to understanding the options for a distressed California property owner. To read the chart, the property owner should identify on the far left column the type of property and loans secured by the property. After the type of property has been identified, the chart gives the owner options on the right. A detailed explanation of the options for each type of property and loan structure is included in Howard L. Hibbard’s book, How to Avoid Foreclosure in California, 2012 Edition. If you are a distressed property owner needing assistance, contact the Law Office of Howard L. Hibbard for a free consultation.

DISCLAIMERS
1) This Distressed Property Homeowners Options Chart gives general guidelines for distressed property owners. Owners should consult legal counsel prior to taking any course of action based on any option listed … more

Type of Property*

*Explanation for each type of property is listed in booklet How to Stop Foreclosure: Quick Easy Guide.

Loan Modification

Short Sale

Foreclosure Relief

Live Off Equity

Deficiency Liability

1099 A or C Liability

Deed in Lieu option

1. Single Family Dwelling, Owner Occupied,
Purchase Money First Loan

Yes

Yes

Yes

Yes, until 12.30.2012 Mortgage Relief Act expires

None, until 12.30.2012 Mortgage Relief Act expires

None, until 12.30.2012 Mortgage Relief Act expires

Yes

2. Single Family Dwelling, Purchase Money First and Second Loan

Yes

Yes

Yes

Yes, until 12.30.2012 Mortgage Relief Act expires

Yes, until 12.30.2012 Mortgage Relief Act expires

No, until 12.30.2012 Mortgage Relief Act expires

Yes

3. Single Family Dwelling, Purchase Money First and Second Loan (Line of Credit) Obtained at Purchase of Home

Yes

Yes

Yes

Yes, but use Deed in Lieu before foreclosure

Yes, if First Loan Forecloses

Yes, for Second Loan Amount

Yes

4. Single Family Dwelling, First and/or Second Loans Refinanced

Yes

Yes

Yes

Yes, but use Deed in Lieu before Foreclosure

Yes, for Second Loan if First Loan uses Non-Judicial Foreclosure

Yes

Yes

5. Single Family Dwelling, Not Primary Residence, 2nd Home or Vacation

Yes, Some Banks which do not require owner occupied

Yes, Some Banks which do not require owner occupied

Yes, Some Banks which do not require owner occupied

Not
Applicable

Yes

Yes

Yes

 

 

 

 

 

6. Residential Property 4 Units or Less, Owner Occupied, Purchase Money Loans

Yes if Owner Occupied, Yes, Some Banks which do not require owner occupied

Yes, Some Banks which do not require owner occupied

Yes, Some Banks which do not require owner occupied

Yes, if Owner Occupied

No, if Owner Occupied

No, if Owner Occupied

Yes

7. Commercial Residential

No

No

No

Not Applicable

Yes

Yes

Yes

8. Commercial Business

No

No

No

Not Applicable

Yes

Yes

Yes

Copyright © November 23, 2011 • Law Office of Howard L. Hibbard • www.HLHibbardAttorney.com


Disclaimers (continued)

… in the chart as there are many twists and turns dependent upon the exact circumstances of each homeowner. 2) This chart does not apply to loans where any type of fraud occurred in obtaining the loan such as “stated income” which is not accurate to owners actual income. 3) This chart is dated as of November 23, 2011 and the legal basis for the chart options may change without modification to the chart. Legal counsel should be consulted prior to taking action on any choice outlined in the chart to determine change of law or inapplicability for any reason. 4) This chart was designed to apply to real estate owned and financed within the state of California. 5) This chart applies only to homes in which the lender uses non-judicial foreclosure. For judicial foreclosures you must consult legal counsel.

Filed Under: Bankruptcy, Distressed Homeowners, Real Estate Law, Short Sales and Foreclosures Tagged With: , , , , , , , ,

GAVE MY HOUSE KEYS TO THE BANK — NOW I’M BEING SUED! Homeowners Facing Foreclosure Beware

November 4, 2011 By 1 Comment
Share on TwitterShare via email

You are unable to make your mortgage payments.  You received a foreclosure notice from the bank so you surrendered your keys, moved out, and canceled your homeowner’s insurance.  You think you are off the hook.  So, how can you be sued for problems on your vacant property?

The problem is that while the bank gave notice of pending foreclosure, the homeowner is still liable for any problems on their property until the title transfers to the bank.  Complaints others make to the City, County or Homeowners’ Association against your property, i.e. not being maintained; nuisances like kids throwing parties; or homeowner fees still due, are examples of the homeowner’s continued personal responsibility.

If you are still on title, you are still personally liable for all criminal liability for failure to maintain the property; civil liability for any person injured on your property; still owe homeowner fees; and more.

The solution is simple.  Until you are off title, you are still liable.  As long as you are on title, you need to keep paying your homeowner’s insurance premiums.

The best way to solve the problem if the bank does not complete the foreclosure on your home is to record a DEED IN LIEU OF FORECLOSURE.  However, in some states, the bank must approve the Deed In Lieu.  California is not one of those states, but there are issues to be considered which are too are lengthy for this blog for which you should obtain legal counsel.

A Deed In Lieu of Foreclosure is a deed from the owner to the first or second deed of trust or mortgage holder.  It should be a Quitclaim Deed which bears the title, “DEED IN LIEU OF FORCLOSURE,” next the title Quitclaim Deed.

To obtain more information about Deeds in Lieu, read the book:  MORTGAGES, DEEDS OF TRUST AND FORECLOSURE LITIGATION, CONTINUING EDUCATION OF THE BAR, CALIFORNIA OAKLAND, CALIFORNIA, January 2010, Chapter Title, Debtor’s Strategies, section 7.11, page 523; 7.127.21, page 524 and 7.21A, page 530.

To find more information on the web try doing a search using the phrase, “Deed In Lieu.”

Filed Under: Real Estate Law, Short Sales and Foreclosures Tagged With: , , , , ,

FORECLOSURE DANGERS: Beware of Scams to Collect on Purchase Money 2nd or 3rd Deeds of Trust

September 2, 2011 By Leave a Comment
Share on TwitterShare via email

Senate Bill 931 which enacts California Code of Civil Procedure §580e became effective January 1, 2011.

C.C.P. §580e prohibits recovery of a deficiency on a first deed of trust following a short sale of real property of four (4) units or less because C.C.P. §580e(a), read, in part: “….Written consent of the holder of the first deed of trust or first mortgage to that sale shall obligate that holder to accept the sale proceeds as FULL PAYMENT and to fully discharge the remaining amount of the indebtedness on the first deed of trust or first mortgage.”  (Emphasis added).

This means you should not get a 1099-A or 1099-C from the holder of the first deed of trust following a short sale!  For more information on 1099-A or 1099-C, please read our blog: If You Are a Distressed Homeowner Facing a Short Sale or Foreclosure, Read This Article!!

What C.C.P. §580(e) does not address are second deeds of trust or other non-purchase money loans on real property.  Lenders with second or third deeds of trust and/or lines of credit may still, and have been, suing short sale borrowers to recover monies borrowed.

The question then becomes, what is the state of the law for when both the first and second deed of trust were used to purchase the property? Interestingly in 2009, the Northern District of California, ruled that a second deed of trust, made concurrently with a first deed of trust for the purchase of real property is a purchase money loan within the meaning of C.C.P.  §580(b).  See Herrera v. LCS Fin. Servs. Corp. (ND Cal. 2009)

BEWARE OF SCAMS TO COLLECT ON

PURCHASE MONEY 2nd or 3rd DEEDS OF TRUST

The Herrera case holds that purchase money 2nd or 3rd deeds of trust are subject to anti-deficiency law as outlined in C.C.P. 580c.  Some lenders are attempting to collect on junior purchase money deeds of trust after foreclosure or demand a deficiency in a short sale.

The lender is not entitled to demand a deficiency after foreclosure on a purchase money 2nd or 3rd deed of trust. 

Any attempt to collect on an uncollectable debt, without the collection agency stating re-payment is not mandatory, may be grounds to sue the collection agency for violation of California Fair Debt Collections Act.

 STRATEGY TO REQUEST MINIMUM OR NO DEFICIENCY ON A PURCHASE MONEY 2ND OR 3RD DEED OF TRUST UNDER A SHORT SALE

As a realtor, if you are negotiating the short sale with a junior purchase money deeds of trust, you must make it clear to the lender that through the short sale, the lender is actually saving: (1) months of non-payments on the loan, (2) months of vacancy, (3) costs of foreclosure proceedings, and (4) costs of resale.  In addition, there is no right to a deficiency after a foreclosure.  Disclosure of these realities should create a stronger bargaining position to facilitate a short sale for a minimum or no deficiency.

Our office specializes in real property law and a significant portion of our business in this area comes directly from other attorneys and local area real estate professionals. For more information  regarding the above or with other legal questions,please contact our office:

Law Office of Howard L. Hibbard

http:/hlhibbardattorney.com/contact us

or call (650) 347-5010 for a free consultation

Filed Under: Real Estate Law, Short Sales and Foreclosures Tagged With: , , , , , , , ,

IF YOU ARE A DISTRESSED HOMEOWNER FACING A SHORT SALE OR FORECLOSURE, READ THIS ARTICLE!!

July 11, 2011 By 2 Comments
Share on TwitterShare via email

Serious tax consequences may result from either a short sale or foreclosure. As with most IRS information, it is not an exciting read, but you could save yourself thousands of dollars in taxes.

Many distressed homeowners who have left their homes or lost their home by foreclosure will receive a 1099-A, 1099-C or both from the lenders. Lenders are required to file the 1099’s with the IRS and mail a copy to the borrower. Depending on the form you receive, you could be liable for thousands of dollars in additional taxes.

What do these tax forms mean? By definition, a 1099-A is for “Acquisition or Abandonment of Real Property” and a 1099-C is for “Cancellation of Debt.” This article outlines the circumstances in which you may receive a 1099-A and/or 1099-C. If you do receive a 1099-A or 1099-C, it is important to contact your accountant or tax preparer immediately to discuss the tax consequences and any possible exemptions.

1099-A:

The lender’s responsibility to file the 1099-A is triggered when the lender acquires an interest in the property that is the security for the loan. It does not matter if the interest acquired represents a full or partial satisfaction of the debt.

A 1099-A must be filed in three (3) situations:

1. Foreclosure: Regardless of whether the lender is the first, second or third mortgage holder, upon foreclosure of the property, all lenders are required to file a 1099-A for the amount of the debt. The 1099-A is required if there is a deficiency and the lender does attempt to collect the deficiency from the borrower. The lender is required to file if they know or have reason to know the foreclosure has taken place.

2. Abandonment: If the borrower intends to, and has permanently given up possession and use of the property, the lender must file a 1099-A. If a foreclosure will be performed within three (3) months of the abandonment by the borrower, the lender may wait to file the 1099-A until the date of the foreclosure sale. If a foreclosure is not scheduled within three (3) months of the abandonment, the lender must file the 1099-A within three (3) months of the date of abandonment.

3. Claim and Delivery: Claim and delivery is a legal action to recover property, for 1099-A purposes, only property that is security for a debt. A 1099-A is required if the property is used for business, trade or investment purposes. Property solely for personal use does not trigger the requirement to file a 1099-A.

1099-C:

The lender’s responsibility to file a 1099-C is triggered when the lender acquires an interest in the property that is the security for a loan and the lender forgives, cancels or discharges the debt. Canceled debt must be reported as “gross income” and the borrower will be required to pay tax thereon unless the debt qualifies for an exclusion or exception.

1. Debt cancellation: Lenders who cancel, forgive or discharge any debt for $600.00 or more are required to file a 1099-C with the IRS.

2. Foreclosure: Regardless of whether the lender is the first, second or third mortgage holder, upon foreclosure of the property, all lenders are required to file a 1099-A. The 1099-C is required if there is a deficiency and the lender does not attempt to collect the deficiency from the borrower. If the debt is canceled, the lender need only file a 1099-C and not a 1099-A.

When a borrower receives a 1099-A or 1099-C, the IRS has already received the form. You must address the tax issues immediately. Failure to do so may result in penalties and fees.

If you have any questions regarding short sales and foreclosures, more information is available on the short sales and foreclosure page of this website. If you are tired or reading information on the internet and would like a free, in person or over the phone consultation with one of our attorneys, please contact us.

Filed Under: Real Estate Law, Short Sales and Foreclosures Tagged With: , , , , , , , , , , , , , , ,

Chapter 13 Bankruptcy Debtors: How to Eliminate 2nd and 3rd Mortgages by Lien Stripping!

May 26, 2011 By Leave a Comment
Share on TwitterShare via email

Chapter 13 Bankruptcy debtors have the amazing opportunity to save hundreds of thousands of dollars. See Zimmer v. PSB Lending Corporation (In RE: Zimmer) 313 F3d 1220 (9th Cir. 2002). Debtors can strip the Second and Third Mortgages (“Junior Mortgages”) on their home with a relatively straightforward motion to the Court. Stripping the Junior Mortgages means that for the purpose of the Debtors’ Chapter 13 bankruptcy plan, the Junior Mortgages are valued at zero (0) and no payments will be made!!
After completing the Plan payments, Debtors can obtain a judgment voiding the Junior Mortgages. This means that the Debtors will have absolutely no further obligation to pay the Junior Mortgages… ever!!
Generally, a mortgage is a secured debt because it is attached to real property, however, if the value of the property has declined to the point where the value is less that the amount owing on the first mortgage, the Junior Mortgages become unsecured.
In order to strip a second mortgage, several simple conditions must be met:
(1) The property must be the Debtors’ primary residence; and
(2) The current value of the Property must be less than the amount due on the First Mortgage.
If both of these conditions are met, the Debtor can make a motion to have their Junior Mortgages stripped! You may visit the Northern District Bankruptcy Court website for more information and guidelines.
Our office specializes in preparing Lien Strip Motions and a significant portion of our business in this area comes directly from other attorneys.
For more information regarding Lien Strip or other Bankruptcy Issues
or with other legal questions, please contact our office:
Law Office of Howard L. Hibbard
http://hlhibbardattorney.com/contact-us
or call (650) 347-5010 for a free consultation
Lisa K. Kehe, Esq.

Filed Under: Bankruptcy, Real Estate Law Tagged With: , , , , , , , , , , , , , , ,

Home Loss By Foreclosure During Loan Modifications – What Can Be Done About It?

March 19, 2011 By 1 Comment
Share on TwitterShare via email

Home loss by foreclosure during loan modifications has been on the rise.  Mark Len (D-San Francisco) and Darrell Steinberg (D-Sacramento) have recently proposed new legislation that would forbid lenders from starting foreclosure proceedings against homeowners who have a loan modification request pending.  A similar bill died last year.  The bill, Senate Bill 729, would provide check and balances as briefly outlined in a press release from the Center for Responsible Lending, including but not limited to: (1) a “yes” or “no” from the lender to the homeowner on the loan modification before the lender begins foreclosure proceedings, (2) proof of ownership of the note by the lender at the time the lender records the default, (3) lifetime loan accounting from the servicer to the homeowner at the time of the notice of default, and (4) limited legal resources to the buyer.

To protect yourself and your home, this office strongly recommends that the homeowner and/or modification facilitator obtain the name and contact information of the person handing both the modification and the foreclosure and provide the same to all involved parties.  Further, all communications from the homeowner and/or modification facilitator should be sent to both the loan modification and foreclosure department contacts by certified mail, return receipt requested.  You need to create a paper trail to protect yourself.

Utilize the www.makinghomeaffordable.gov website for Home Affordable Modification Program (HAMP) forms and information.  Also read helpful pamphlets, obtain contact information for lenders and watch informational videos.  Home Affordable Foreclosure Alternatives (HAFA) information is also available.

For more information regarding Loan Modifications or Foreclosures or for specific questions, please contact our office:

Law Office of Howard L. Hibbard
http://hlhibbardattorney.com/contact-us
or call (650) 347-5010 for a free consultation

Lisa K. Kehe, Esq.

Filed Under: Real Estate Law, Short Sales and Foreclosures Tagged With: , , , , , , , , , , , , ,

March 9th Class: Legal Pitfalls of Short Sales and Foreclosures

March 2, 2011 By Leave a Comment
Share on TwitterShare via email

Come to Our Class! “Legal Pitfalls Involving Short Sales and Foreclosures”

The Law Office of Howard L. Hibbard is pleased to present a class entitled “Legal Pitfalls Involving Short Sales and Foreclosures” at SAMCAR in San Mateo next Wednesday, March 9, 2011 at 10:30 am.  The class is free! and is presented by the Affiliate Council Committee.

Howard L. Hibbard, a successful litigator and problem solver with extensive expertise in real estate law, developed this curriculum with associate counsel Lisa K. Kehe, to educate and assist real estate professionals, REALTORS®, buyers, sellers and distressed property owners navigate the legal pitfalls of short sales and foreclosures.  The Law Office of Howard L. Hibbard has years of successful experience assisted real estate professionals, REALTORS®, buyers, sellers and distressed property owners resolve issues surrounding short sales and foreclosures in San Mateo, Alameda and Santa Clara counties.

Come join us and get the scoop on how to avoid legal pitfalls and litigation in short sale and foreclosure transactions.  Attendees will also have the opportunity to ask Mr. Hibbard questions about short sales, foreclosures and any other real estate related topics following the class presentation free of charge.

Topics covered by this free! class include: (1) the ins and outs of government sponsored Making Home Affordable programs, (2) strategies for evaluating short sale, (3) legal dangers related to short sales and how to avoid them.  Materials provided include a quick checklist for evaluation of short sales and suggested forms to use to ease the short sale process and avoid legal pitfalls.

SAMCAR is located at 850 Woodside Way San Mateo, CA 94401; http://www.samcar.org/index.cfm/about.htm

Please contact SAMCAR to sign up for the class (650) 696-8200.

For more information regarding the class, please contact our office:

http://hlhibbardattorney.com/contact-us

Filed Under: Classes, Real Estate Law, Short Sales and Foreclosures Tagged With: , , , , , , , , , , , , , ,
WP Like Button Plugin by Free WordPress Templates