Residential Property Foreclosure

Residential Property Foreclosure

When mortgage borrowers fail to make their monthly payments as agreed upon, a lender may seize their property and sell it to a new buyer to help recover the mortgage balance. This is called a foreclosure Foreclosures occur due to non-payment, and though the process and timelines vary by state, the end result is the same: The mortgage borrower loses his or her home. Once the lender takes control of the property, it can sell it off to make up for financial losses on the home. Investors and consumers can purchase these homes—often at auctions or directly from the bank or government agency that owns them.

Why Foreclosures Happen

Foreclosures, at their most basic, occur because the homeowner has failed to make agreed-upon payments with their mortgage lender. The reasons behind this non-payment can vary. Sometimes, job or income loss is the culprit; for other borrowers, medical bills or credit card debt made it impossible to stay afloat. In some cases, it may be due to bankruptcy, divorce, disability, or other personal or financial issues.

Pros & Cons of Foreclosed Property

Pros
• May be priced lower than other homes on the market
Cons
• Properties are often poorly maintained or in disrepair
• Sellers are often unwilling to make repairs
• Previous homeowner may take the home back, in some cases
• Could require significant amounts of cash if purchased at auction
• No record of property repairs and maintenance
Most buyers consider buying a foreclosed property to save money. Though not all bank-owned and foreclosed properties are a bargain, many are priced lower than market value due to their condition or the lender’s need to recoup their financial losses quickly. The Department of Housing and Urban Development (HUD), for example, even has homes listed at $1. Buying a foreclosed property may allow you to purchase a home you might not otherwise have been able to afford—perhaps one in an in-demand area or with more square footage than you budgeted for.

That’s about where the perks end, though. Foreclosed properties often come in poor condition and require many repairs—repairs the seller is typically unwilling to make (the majority are sold as-is). Additionally, you may not be able to finance the purchase via a traditional mortgage loan, especially if you buy it at auction. In most cases, property auctions require all-cash bids.

Finally, there are concerns regarding the previous homeowners. These include:
• Redemption periods. Many states have what’s called a “right of redemption” period, which allows the homeowner to catch up on payments and take back his or her property.
• Squatters. If the previous homeowner (or anyone, for that matter) is squatting in the home, it may be difficult and time-consuming to remove them.
• Lack of maintenance records. Because the previous homeowner is not directly involved with the sale, it can be very difficult to know what repairs and maintenance have been done to the house before you move in. Banks don’t have a record of this type of upkeep.

Stages of Foreclosure

The actual foreclosure process that a lender must go through to seize a property varies by state. In some places, foreclosures must advance through judicial proceedings before the home can be seized. In others, there are non-judicial options. Legally, a foreclosure cannot be initiated until a borrower is at least 120 days behind on their mortgage payments.

How to Negotiate With Sellers

When buying a foreclosure, you’re often purchasing from a large financial institution like a bank or private lender. Because of this, offers usually require multiple approvals and may take longer to move through the pipeline. You can generally expect negotiations to be slower and more difficult than they would be with a traditional seller. Additionally, banks are looking to recoup as much of their losses as possible. As such, they’ll usually present a counteroffer during negotiation which, again, must be approved by several people. When purchasing in a traditional home sale, you can include a home inspection contingency and negotiate on repairs and pricing based on the inspection’s findings. When buying a foreclosed property at auction, individual buyer contingencies (and thus the negotiations based on them) are not allowed. Your best bet for negotiating a foreclosure purchase is to engage a real estate agent—ideally one with foreclosure experience. He or she will be able to help you craft a competitive offer based on comparable sales and market conditions.

Phases Of A Foreclosure

Phase 1: Payment Default
A payment default occurs when a borrower has missed at least one mortgage payment. The lender will send a missed payment notice indicating that they have not yet received that month’s payment. Typically, mortgage payments are due on the first day of each month, and many lenders offer a grace period until the 15th of the month. After that, the lender may charge a late payment fee and send the missed payment notice. After two payments are missed, the lender may send a demand letter. This is more serious than a missed payment notice; however, at this point, the lender may be still willing to work with the borrower to make arrangements for catching up on payments.
Phase 2: Notice of Default (NOD)
A notice of default is sent after 90 days of missed payments. In some states, the notice is placed prominently on the home. At this point, the loan will be handed over to the lender’s foreclosure department in the same county where the property is located. The borrower is informed that the notice will be recorded. The lender will typically give the borrower another 90 days to settle the payments and reinstate the loan. This is referred to as the reinstatement period.
Phase 3: Notice of Trustee’s Sale
If the loan has not been made up to date within the 90 days following the notice of default, then a notice of trustee’s sale will be recorded in the county where the property is located. The lender must also publish a notice in the local newspaper for three weeks indicating that the property will be available at public auction. All owners’ names will be printed in the notice and in the newspaper, along with a legal description of the property, the property address, and when and where the sale will take place.
Phase 4: Trustee’s Sale
The property is placed for public auction and will be awarded to the highest bidder who meets all of the necessary requirements. The lender (or firm representing the lender) will calculate an opening bid based on the value of the outstanding loan, any liens, any unpaid taxes, and any costs associated with the sale. When a foreclosed property is purchased it is up to the buyer how long the previous owners may stay in their former home. Once the highest bidder has been confirmed and the sale is completed, a trustee’s deed upon sale will be provided to the winning bidder. The property is then owned by the purchaser, who is entitled to immediate possession.
Phase 5: Real Estate Owned (REO)
If the property is not sold during the public auction, the lender will become the owner and will attempt to sell the property on their own, through a broker or with the assistance of a real estate owned asset manager. These properties are often referred to as “bank-owned” and the lender may remove some of the liens and other expenses in an attempt to make the property more attractive.
Phase 6: Eviction
The borrower can often stay in the home until it has sold either through a public auction or later as REO property. At this point, an eviction notice is sent demanding that any persons vacate the premises immediately. Several days may be provided to allow the occupants sufficient time to remove any personal belongings, and then typically the local sheriff will visit the property and remove the people, and any remaining belongings. Any belongings may be placed in storage and can be retrieved at a later date for a fee.

Throughout the foreclosure process, many lenders will attempt to make arrangements for the borrower to get caught up on the loan and avoid foreclosure. The obvious problem is that when a borrower cannot meet one payment, it becomes increasingly difficult to catch up on multiple payments. If there is a chance that you can catch up on payments—for instance, you just started a new job following a period of unemployment—it is worth speaking with your lender. If a foreclosure is unavoidable, knowing what to expect throughout the process can help prepare you for the six phases of foreclosure.
Why Foreclosures Occur
When you buy expensive property, such as a home, you might not have enough money to pay the entire purchase price at once. However, you can pay a small percentage of the price up front, usually anywhere from 3% to 20% of the price, with a down payment, and borrow the rest of the money (to be repaid in future years). However, the rest of the money may still amount to hundreds of thousands of dollars, and most people don’t earn anywhere near that much annually. Therefore, as part of the loan agreement, you will agree that the property you’re buying will serve as collateral for the loan. If you stop making payments, the lender can foreclose on the property—that is, repossess it, evict you, and sell the property used as collateral (in this case, the home) in order to recover the funds they lent you that you cannot repay. To secure this right, the lender places a lien on your property. To improve their chances of recouping the money that they lend, they (usually) only lend if you’ve got a good loan-to-value (LTV) ratio, a number that represents the risk that the lender will take in granting someone a secured loan, such as a mortgage. To calculate the ratio, the lender divides your loan amount by the value of the home and then multiples the result by 100 to get a percentage. Lenders view an LTV ratio of 80% or less to be ideal. If you have an LTV ratio that exceeds 80%, you will generally require Private Mortgage Insurance (PMI), which can add tens of thousands of dollars to the amount you pay over the loan term.

How Do Foreclosures Work?

Foreclosure is generally a slow process. If you make one payment a few days or weeks late, you’re probably not facing eviction. However, you may face late fees in as little as 10 to 15 days. That’s why it’s important to communicate with your lender as early as possible if you’ve fallen on hard times or expect to in the near future—it might not be too late to avoid foreclosure. The foreclosure process itself varies from lender to lender and laws are different in each state; however, the description below is a rough overview of what you might experience. The entire process could take several months at a minimum. You will generally start to receive communications as soon as you miss one payment, and those communications might include a notice of intent to move forward with the foreclosure process. In general, lenders initiate foreclosure proceedings three to six months after you miss your first mortgage payment. Once you’ve missed payments for three months, you may be given a “Demand Letter” or “Notice to Accelerate” requesting payment within 30 days. If, by the end of the fourth month of missed payments, you still have not made the payment, many lenders will consider your loan to be in default and will refer you to the lender’s attorney. This is when things get critical.

Consequences of a Foreclosure

The main outcome of going through foreclosure is, of course, the forced sale and eviction from your home. You’ll need to find another place to live, and the process could be extremely stressful for you and your family. How foreclosures work also makes them expensive. As you stop making payments, your lender may charge late fees, and you might pay legal fees out of pocket to fight foreclosure.9 Any fees added to your account will increase your debt to the lender, and you might still owe money after your home is taken and sold if the sales proceeds are not sufficient (known as a “deficiency”). A foreclosure will also hurt your credit scores. Your credit reports will show the foreclosure starting a month or two after the lender initiates foreclosure proceedings, and it will stay on the report for seven years. You’ll have a hard time borrowing to buy another home (although you might be able to get certain government loans within one to two years), and you’ll also have difficulty getting affordable loans of any kind. Your credit scores can also affect other areas of your life, such as (in limited cases) your ability to get a job.

How to Avoid a Foreclosure?

The act of taking back your home is the last resort for lenders who have given up hope of being paid. The process is time-consuming and expensive for them (although they can try to pass along some of those fees to you), and it is extremely unpleasant for borrowers. Fortunately, you can follow some tips to prevent foreclosure:
• Keep in touch with your lender. It’s always a good idea to communicate with your lender if you’re having financial challenges. Get in touch before you start missing payments and ask if anything can be done. And if you start missing payments, don’t ignore communication from your lender—you’ll receive important notices telling you where you are in the process and what rights and options you still have. Speak with a local real estate attorney or HUD housing counsellor to understand what’s going on.
• Explore alternatives to keep your home. If you know that you won’t be able to make your payments, find out what other options are available to you. You might be able to get help through government foreclosure-avoidance programs. Some lenders offer similar programs to those willing to fill out a mortgage assistance application. Your lender might even offer a loan modification that would make your loan more affordable. Or, you might be able to work out a simple payment plan with your lender if you just need relief for a brief period (if you’re in between jobs, or have surprise medical expenses, for example).
• Look into alternatives for leaving your home. Foreclosure is a long, unpleasant, expensive process that damages your credit. If you’re simply ready to move on (but want to at least try to minimize the damage), see if your lender will agree to a short sale, which allows you to sell the house and use the proceeds to pay off your lender even if the loan hasn’t been completely repaid and the price of the home is less than what you owe on the mortgage. However, you may still have to pay the deficiency unless you have it waived. If that doesn’t work, another less attractive option is a deed in lieu of foreclosure, which allows you to reduce or even eliminate your mortgage balance in exchange for turning over your property to the lender.
• Consider bankruptcy. Filing for bankruptcy might temporarily halt a foreclosure. The issues are complex, so speak with a local attorney to get accurate information that’s tailored to your situation and your state of residence.
• Avoid scams. Because you’re in a desperate situation, you’re a target for con artists. Be wary of foreclosure rescue scams, such as phony credit counselors or individuals who ask you to sign over the deed to your home, and be selective about whom you ask for help.

Foreclosure Attorney

When you need a Residential Property Foreclosure Attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Can An Individual Be A QIB?

Can An Individual Be A QIB

A qualified institutional buyer (QIB), in United States law and finance, is a purchaser of securities that is deemed financially sophisticated and is legally recognized by securities market regulators to need less protection from issuers than most public investors. Typically, the qualifications for this designation are based on an investor’s total assets under management and specific legal conditions in the country where the fund is located. Rule 144A requires an institution to manage at least $100 million in securities from issuers not affiliated with the institution to be considered a QIB. If the institution is a bank or savings and loans thrift they must have a net worth of at least $25 million. If the institution is a registered dealer acting for its own account it must in the aggregate own and invest on a discretionary basis at least $10 million of securities of issuers not affiliated with the dealer. Certain private placements of stocks and bonds are made available only to qualified institutional buyers to limit regulatory restrictions and public filing requirements.

Understanding Qualified Institutional Buyer (QIB)

In general, a QIB is any entity included within one of the categories of accredited investor defined in Rule 501 of Regulation D, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers not affiliated with the entity ($10 million for a broker-dealer). In addition to the qualifications above, banks and savings and loan associations must have a net worth of at least $25 million to be deemed QIBs. QIBs can be foreign or domestic entities, but must be institutions. Individuals cannot be QIBs, no matter how wealthy or sophisticated they are. A broker-dealer acting as a riskless principal for an identified QIB would itself be deemed a QIB. To qualify as a riskless principal, the broker-dealer must have a commitment from the QIB that it will simultaneously purchase the securities from the broker-dealer.

The commitment from the QIB must be effective at the time of purchase in the Rule 144A transaction. A QIB may be formed merely for the purpose of investing in a Rule 144A transaction. The qualified institutional buyer designation is often conferred upon entities comprised of sophisticated investors. Essentially these individuals or entities, due to their experience, assets under management (AUM), and/or net worth, are considered not to require the type of regulatory oversight when purchasing securities that unsophisticated, regular investors often need. Typically, a QIB is a company that manages a minimum investment of $100 million in securities on a discretionary basis or is a registered broker-dealer with at least a $10 million investment in non-affiliated securities. The range of entities deemed qualified institutional buyers (QIB’s) include savings and loans associations (which must have a net worth of $25 million), banks, investment and insurance companies, employee benefit plans and entities completely owned by accredited investors. Under Rule 144A, QIB’s are allowed to trade securities on the market, which increases the liquidity for these securities. This rule provides a safe harbour exemption against the SEC’s registration requirements for securities. Typically, transactions conducted under Rule 144A include offerings by foreign investors looking to avoid U.S. reporting requirements, private placements of debt, and preferred securities of public issuers and common stock offerings from issuers that do not report.

What Is Rule 144?

Rule 144 is a regulation enforced by the U.S. Securities and Exchange Commission that sets the conditions under which restricted, unregistered, and control securities can be sold or resold. Rule 144 provides an exemption from registration requirements to sell the securities through public markets if a number of specific conditions are met. The regulation applies to all types of sellers, in addition to issuers of securities, underwriters, and dealers.

Understanding Rule 144

Rule 144 regulates transactions with restricted, unregistered and control securities. These type of securities are typically acquired in unregistered, private sales or constitute a controlling stake in an issuing company. Investors may acquire restricted securities through private placements or other stock benefit plans offered to a company’s employees.

Securities Act Rule 144 Under the SEC

This rule governs the sales of controlled and restricted securities in the marketplace. This rule protects the interests of issuing companies, because the sales are so close to their interests. Section 5 of the Securities Act of 1933 governs all offers and sales and requires them to be registered with the SEC or to qualify for an exemption from registration requirements. Rule 144 offers an exemption, allowing the public resale of controlled and restricted securities, if certain conditions are met. This includes the length of time securities are held, the method used to sell them and the number that are sold in any one sale. Even if all requirements have been met, sellers are not permitted to conduct sales of restricted securities to the public until a transfer agent has been secured.

What Is SEC Form 144: Notice of Proposed Sale of Securities?

An executive officer, director, or affiliate of a company must file SEC Form 144: Notice of Proposed Sale of Securities with the Securities and Exchange Commission or SEC when placing an order to sell that company’s stock during any three-month period in which the sale exceeds 5,000 shares or units or has an aggregate sales price greater than $50,000. This is also known as Rule 144.

Who Can File SEC Form 144: Notice of Proposed Sale of Securities?

According to the SEC’s website, the party filing Form 144 must have a bona fide intention to sell the securities referred to in the Form 144 within a reasonable time frame after filling. Since sales covered under Form 144 are often very close to the interests of the issuing company, at times filers must register the securities under Section 5 of the Securities Act of 1933. If the correct conditions are met, Rule 144 can provide an exemption and permit the public resale of restricted or control securities. Still, all parties must obtain a transfer agent to remove the securities’ legend prior to sale.

Notice of Proposed Sale of Securities

Form 144 must be filed with the SEC by an affiliate of the issuer as a notice of the proposed sale of securities in reliance on Rule 144, when the amount to be sold under Rule 144 by the affiliate during any three-month period exceeds 5,000 shares or units or has an aggregate sales price in excess of $50,000. A person filing a Form 144 must have a bona fide intention to sell the securities referred to in the Form within a reasonable time after the filing of the Form. While the SEC does not require the form to be sent electronically to the SEC’s EDGAR database, some filers choose to do so.

The Difference between 144A and Regulation S

Rule 144A, often referred to as a 144A offering, is an SEC rule issued in 1990 that modified a two-year holding period requirement on privately placed securities by permitting QIBs to trade these positions among themselves. Prior to this the holding period for such private stock was different. A 144A offering is a U.S. based offering, and typically is considered an alternative to the timely and costly initial public offering. Regulation S often referred to as Reg S, are bonds or stocks that may not be offered, sold or delivered within the U.S. Additionally, they may not be on behalf or for the account or benefit of U.S. citizens, unless pursuant to an exemption from, or in a transaction not subject to the registration requirements of the Securities Act. Reg S has many restrictions, as can be seen, for United States residents. The US SEC 144A and REG S restrictions are related to markets in the US. 144A is restricted to QIBs (Qualified Institutional Buyers) in the US and REG S cannot be held by holders in the US. Additionally, before, bonds sold under Regulation S (Reg S), can only be offered in the U.S. to qualified institutional buyers (QIBs) in reliance on Rule 144A. QIBs are in fact one of the only groups permitted to invest in Reg S offerings. Regulation S and Rule 144A are sections of the US Securities Act of 1933 governing an offer or sale of securities by a non-US issuer. As a general rule, securities of a non-US company may only be offered for sale within the United States pursuant to the registration of those securities with the US Securities and Exchange Commission or pursuant to an exemption from registration. An exempt offering of securities of an non-US issuer into the United States may be effected under Rule 144A (a restricted offering). A restricted offering into the States is often combined with an unrestricted placement of securities offshore (i.e. outside of the US) under the provisions of Regulation S. The difference between Reg S and 144A is that 144A can only be held by Qualified Institutional Buyers (QIBs) in the US. Reg S can be held by holders in the rest of the world outside the US. They are therefore usually referred to as the US and European portions of a GDR. Non-US issuers can apply for an exemption from the Securities Act 1933 under Rule 144A. This means the stock can only be held by QIBs. Regulation S of the Securities Act 1933 is applicable to transactions outside the US (Offshore Offerings). They are prohibited from being sold in the US and cannot be integrated with the 144A offering. Again, it exempts the issuer from certain SEC reporting requirements.

Requirements to qualify as a QIB

The U.S. Securities and Exchange Commission (SEC) requires that an entity meet one of the following requirements to qualify as a QIB:
• Any of the following entities, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
• An insurance company
• An investment company registered under the Investment Company Act of 1940
• A Small Business Investment Company licensed by the US Small Business Administration under the Small Business Investment Act of 1958
• A plan established and maintained by a state, its political subdivisions, or state agency, for the benefit of its employees
• An employee benefit plan falling under the Employee Retirement Income Security Act of 1974
• A trust fund whose trustee is a bank or trust company and whose participants are exclusively plans established for the benefit of state employees or employee benefit plans, except trust funds that include as participant’s individual retirement accounts or H.R. 10 plans
• A business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.
• A 501(c)(3) charitable organization, corporation (other than a bank or a savings and loan association), partnership, or Massachusetts or similar business trust; and
• An investment adviser registered under the Investment Advisers Act of 1940.
• Any registered dealer, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer.

• Any registered dealer acting in a riskless principal transaction on behalf of a qualified institutional buyer.
• Any investment company registered under the Investment Company Act, acting for its own account or for the accounts of other QIBs, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies.
• Any entity, all of the equity owners of which are QIBs, acting for its own account or the accounts of other QIBs.
• Any bank or any savings and loan association or other institution, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under Rule 144A in the case of a US bank or savings and loan association, and not more than 18 months preceding the date of sale for a foreign bank or savings and loan association or equivalent institution.

How Does a Qualified Institutional Buyer (QIB) Work?

A QIB can be an insurance company, a bank, a 401(k) plan, an employee benefit plan, a trust fund, a business development company (BDC), a charity, or even an entity owned by qualified investors. QIBs are regarded as highly sophisticated entities that do not need as much protection as less sophisticated investors or entities.

Why Does a Qualified Institutional Buyer (QIB) Matter?

QIBs are allowed to buy private placements under SEC Rule 144A. These offerings are generally not registered with the SEC, and therefore they are only available to those whom the courts have found able to fend for themselves. Foreign issuers can also make limited offerings to American QIBs, as legally permissible.

Securities Lawyer

When you need legal help with a Securities Lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews

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Apartment Building Investor Attorney

Apartment Building Investor Attorney

A real estate attorney can be a valuable partner when buying or selling property. But is one always necessary? Definitely not. Though real estate lawyers can certainly help resolve disputes, navigate complications, or even just provide general guidance, they’re not right for every transaction.

What Does A Real Estate Attorney Do?

Real estate attorneys can assist in a number of capacities, both in the residential space and the commercial one. They help with drafting contracts and legal documents, deal with construction and development issues, and might even attend your closing appointment. One of the most common reasons you’d use a real estate attorney is to draw up a contract or legal document. Attorneys can help you draft:
• Your sales contract/purchase agreement.
• Leases.
• Eviction notices.
• Title documents.
• Mortgage contracts and documents.
• Title and deed transfer documents.
If these items have already been drawn up, they can also help you better understand them, explaining your liabilities, obligations, and other terms of the contract.


In addition to document preparation, a real estate lawyer generally offers the following legal services:
• Negotiations.
• Reviews and due diligence.
• Assistance with building and development projects.
• General litigation.
• Foreclosure proceedings.
• Closings.
• Title and lien searches.
• Deed transfers.
• Resolution of zoning issues.
• Coordination with lenders, title agents, surveyors, and other parties in the transaction.

They can also assist with real estate litigation and disputes, including title or land disputes, enforcement of legal contracts, and more.
Should You Use A Real Estate Lawyer When Buying A Property?
Some states require that an attorney be involved in the sales process (or even at the closing table), while others leave it up to you and your lender.

The states where you’ll most likely need an attorney include:
• Connecticut.
• Delaware.
• Georgia.
• Massachusetts.
• New York.
• North Carolina.
• South Carolina.
But real state laws vary and are constantly in flux. Be sure to check your local laws or ask your real estate agent for additional guidance. If your state doesn’t outright require an attorney, that doesn’t mean one wouldn’t still be helpful. Here are a few scenarios when you might consider hiring legal help:

• You’re building or buying real estate for your business.
• You’re having issues with your landlord or tenant.
• You’re buying or selling a commercial property with existing tenants.
• You need help understanding your sales contract or other agreement.
• Your development project is up against land, title, or environmental issues.
• You want help negotiating a better deal.
• You need assistance with foreclosure proceedings.
• You’re buying a property that has physical issues, is in a hazard-prone area, or has lead, asbestos, or environmental toxins.
• You want to better understand the liabilities a real estate transaction or property might present.
• You’re buying from another state or country and aren’t sure of the local laws.
• You’re buying a bank-owned property or property with liens against it.
There’s a chance your lender may require an attorney to ensure your property’s title is clean and clear. Ask your lender if this will be required or check your loan estimate to see if an attorney’s fee is quoted there.

Finding A Real Estate Attorney

If you’ve decided you want the help of a real estate attorney, ask your lender, title company, or real estate agent for a referral. You can also ask for recommendations from friends and loved ones. Before hiring a lawyer, schedule a consultation to see if it’s the right fit. Do they have experience with the type of transaction or issue you’re dealing with? How does their fee structure work, and when is payment required? You should also make sure to choose an attorney in the right part of the industry, as residential and commercial real estate transactions are very different. If your state doesn’t require a real estate attorney, there’s a good chance you can proceed without one. As long as you choose an experienced real estate agent, they should be able to guide you through most of your real estate transaction. If you come across any legal issues or disputes, though, a trained attorney is always your best defense.

Why an Out of State Investor Should Hire an Attorney

The purchase or sale of real estate, whether it is a single family house, a multi-family apartment building, vacant land or a commercial building, is an intricate process that begins with the signing of a contract and ends when the keys and the title to the property are transferred to the purchaser. Although Utah law does not require that a real estate attorney be involved to assist with the steps that occur between the time contracting and closing, hiring a local real estate attorney to assist you with the purchase or sale of real estate in Utah is almost always a wise decision and is money well-spent. Considering the fact that the other party to the transaction will almost always have a local real attorney representing them, I want to highlight a few of the reasons why you should always follow suit and hire a local real estate attorney in Utah when you are involved in a real estate transaction.

What Benefit Does Hiring An Attorney Provide
• Someone Represents You Legally
• Accurate Information Is Being Shared: Having a local real estate attorney in your corner, who understands the intricacies of the local real estate market and who is and has been consistently involved in local real estate investor/investment transactions, will increase the likelihood that when false/misleading/inaccurate information is provided, that this misinformation it is caught, called out and corrected in advance of closing. In addition, having a local real estate attorney involved on your side will increase the likelihood that all of the pertinent, material and available information is provided to you so that you can perform a complete due diligence review. The important information you need as a real estate investor includes, but may not be limited to, the following:
 Correct tenant lease and application information
 Update on subsidized housing inspections and status
 Verification of any local administrative or building codes
 Correction of any inspection issues
 All contract matters are being documented by your attorney in case they need to be referenced post-closing

• Real estate attorneys decrease the likelihood of post-closing litigation: Local real estate attorneys typically charge small (and reasonable) flat fees, to represent you from the time you go under contract until the time of closing. Litigation attorneys tend to be much more expensive, charging several hundred dollars per hour and requesting a several thousand dollar up front retainer fee to begin working on the matter. Hiring a local real estate attorney will significantly reduce the likelihood of post-closing disputes. Disputes can arise from ambiguities or mistakes in the purchase and sale contract, issues with the condition or state of “title” or problems with the condition of the property after legal ownership has passed to the purchaser. A local real estate attorney will review the contract to make sure that the paragraphs and the terms therein are clear, understandable, customary and otherwise problem free, that any issues with title to the property are discovered and addressed prior to closing, that any agreements regarding repairs to the property are properly memorialized in writing, and that all legally required pre-closing disclosures are properly made. Expensive post-closing litigation is far less likely if both sides hire local real estate attorneys from the time that the contract is signed until the time the closing occurs. Since post-closing litigation is expensive, time consuming and unpredictable (in terms of the likelihood that a favorable result can be obtained) many times the purchaser just ends up having to accept/assume the fact that mistakes were made and the resulting unforeseen financial responsibility and move on.

• Real estate attorneys will save you incredible amounts of time: In a real estate transaction, both the seller and the purchaser have several obligations that must be met before closing. In addition to disclosures, communications must be made initially and continuously. Ongoing communication between the parties is the recipe for a “smooth closing” and is required to satisfy local municipal requirements or to satisfy the multitude of requests made by the lenders, homeowners’ associations, title companies and the county tax assessor who are associated with the property and the transaction as a whole. This is a time-intensive process for even experienced local real estate attorneys who deal with these steps on a regular, if not daily, basis. Even if you can complete these tasks flawlessly and timely without the assistance of an attorney, it will be extremely time consuming for you. More likely, without the assistance of a local real estate attorney, mistakes that are ordinarily preventable will occur and those mistakes often cause the closing to be postponed for several months or the deal to fall through entirely.

• Real estate attorneys make sure that title passes cleanly from the seller to the buyer: One of the key roles that local real estate attorneys play in a real estate transaction is they act as a title agent. The title agent works with the title company to ensure that the seller actually has the right to pass full legal ownership (“title”) of the property to the purchaser. If there are any impediments to this right, a title agent will identify them and work with the parties and the title company to resolve these issues before the transaction is set for closing. In addition to the contract, disclosures, and the due diligence materials provided by the Seller, the purchaser’s attorney typically reviews the plat of survey depicting the property and the deed that is given to the purchaser at closing to ensure that the purchaser actually receives full legal ownership to property that the purchaser has contracted to purchase. This is highly technical work on both sides, and it is extremely important in order to protect the interests of both parties. Keep in mind, because attorneys only represent one party in a real estate transaction, you cannot assume that everything is as it should be/good/OK simply because another party to a real estate transaction has hired a local real estate attorney to assist them.

What Real Estate Law Covers

Real estate law encompasses the purchase and sale of real property, meaning land and any structure on it. It also covers legal issues related to anything that is attached to the property or structures, such as appliances and fixtures. Lawyers who specialize in this branch of the legal system ensure that proper procedures are followed during the acquisition or sale of property. They also may be concerned with the use of property. Real estate law covers deeds, property taxes, estate planning, zoning, and titles. All of these laws vary by state and by local government. Attorneys must be licensed to practice in the state where the transaction is taking place and must be up to date on any local or state changes that could affect a transaction.

Real Estate Attorney’s Responsibilities

A real estate attorney is equipped to prepare and review documents relating to real estate such as purchase agreements, mortgage documents, title documents, and transfer documents. A real estate attorney hired to handle a transaction will always attend the closing with the buyer. This is when the money is paid and the title is transferred. The attorney is there to ensure that the transfer is legal, binding, and in the best interests of the client. During the purchase of a property, the real estate attorney and staff might prepare documents, write title insurance policies, complete title searches on the property, and handle the transfer of funds for the purchase. If the purchase is being financed, the attorney is responsible for paperwork such as the federal HUD-1 Form and related transfer of funds documentation for the buyer’s lender. In the case of a real estate dispute, such as chain of title, lot line problems, or other issues involving contracts, the attorney will resolve the problem. A real estate attorney may also provide legal representation for either a buyer or a seller when a dispute winds up in a courtroom. The real estate attorney obtains facts from both sides of the dispute and tries to bring them to a resolution. This may mean hiring a surveyor or title company to work through some of the details.

Like any lawyer, a real estate lawyer has earned a law degree, which typically takes three years of study for a full-time student, and has passed the state bar exam administered by the state in which he or she practices. Training for a specialization like real estate law may begin with elective courses and internships during law school and may continue afterward for certification in real estate law.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Probate A Will Without A Lawyer?

How Do You Probate A Will Without A Lawyer

Probate is the Utah court process for wrapping up the undertakings of an individual who has passed on. The legitimate procedure for doing this differs extraordinarily from state to state. In 1977, Utah received the Utah Uniform Probate Code which is found in Sections 75-1-101 through 75-8-101 of the Utah Code. These laws control the Utah probate process. At the point when an individual dies, the family and heirs will need to choose if a probate is necessary. All in all, a probate will be fundamental at whatever point the expired left property in his or her name which can’t be passed on to the cutting edge heirs without a court request. Our probate lawyers offer you a free consultation to check whether you can stay away from a probate.

In the event that a probate is essential, the outline above demonstrates to you the procedure. Utah probates advance through three phases:
• Stage 1: Opening the probate
• Stage 2: Administering the probate
• Stage 3: Closing the probate
In every one of these three phases of an Utah probate, the members may continue INFORMALLY or FORMALLY. These decisions enable the gatherings to continue by understanding (INFORMAL PROBATE) when they can agree, or to request that a judge choose issues (FORMAL PROBATE) when they can’t concur. Realizing whether to pursue the Utah INFORMAL PROBATE procedure or FORMAL PROBATE procedure is vital to setting aside cash and time in the probate procedure. Our Utah probate lawyers are specialists in following this regularly befuddling court process.

STAGE 1 – Choices at the opening phase of the probate: The opening phase of an Utah probate requires choices on arrangement of the “Individual Representative” (“executor” in certain states) and an assurance that the will is substantial, on the off chance that one exists. Opening the probate INFORMALLY with an Application to the court. In numerous families, probates should be possible by understanding of everybody included. If so, the probate can start with the INFORMAL PROBATE process. On the off chance that the perished left a will, an Utah casual probate starts by documenting an Application for Probate in the Utah District Court in the area where the expired lived. In the event that no will exists, an Utah casual probate starts by documenting an Application for Appointment of Personal Representative. In either case, the court will choose the individual settled upon as the Personal Representative. On the off chance that a contest emerges on anything, a formal hearing will be required. Opening the probate FORMALLY with a Petition to the court. A FORMAL PROBATE procedure is required at whatever point the court needs to determine debates. On the off chance that it gives the idea that any intrigued individual will contest the arrangement of the Personal Representative or the will, the probate court will require at least one formal court hearings to determine the question. In the event that the expired left a will, an Utah formal probate starts by documenting a Petition for Probate in the Utah District Court in the area where the perished lived.

In the event that no will exists, an Utah formal probate starts by recording a Petition for Appointment of Personal Representative. After the Petition is documented, the court will plan a conference to perceive what debates exist. In the event that the gatherings can’t resolve the questions themselves, the judge will choose them. On the off chance that debates exist in the opening phase of the probate, another formal hearing might be required for the judge to hear declaration, see the proof and think about lawful contentions. Stage 1 of an Utah probate closes when a Personal Representative is named and the court acknowledges the will as legitimate, if a will exists.

STAGE 2 – Choices in Administering the domain: The Administration phase of an Utah probate requires the Personal Representative to accumulate data and records, make a stock of the benefits, pull out to loan bosses, pay obligations, sell resources if essential, and recognize the heirs. Overseeing the probate INFORMALLY without court hearings and choices. On the off chance that neither relatives nor banks article to activities and choices by the Personal Representative over the issues of organization of the home, the Personal Representative can continue casually without court hearings and choices from the judge. Directing the probate FORMALLY with a Petition or Motion to the court. An Utah FORMAL PROBATE procedure is required at whatever point the court needs to determine questions. In the event that a question emerges, any intrigued individual (family, heirs, or lenders) can record a Petition or Motion for a court hearing, choice or court request. Debates which can’t be settled between the members may require the judge to settle on choices and issue orders. The judge may lead on a contested issue in the wake of perusing lawful briefs from the gatherings, or the judge may plan a consultation to tune in to declaration, audit proof and think about legitimate contentions. Stage 2, the Administration phase of an Utah probate, closes when every one of the banks have been paid, the heirs have been named, and their legacies have been determined.

STAGE 3 – Choices at the Closing phase of the probate: The Closing Stage of an Utah probate requires the Personal Representative to appropriate the equalization of the advantages of the bequest, in the wake of paying expenses of the probate and paying the obligations, to the heirs. The Personal Representative should likewise set up a last bookkeeping demonstrating every single monetary issue in the organization of the home. Shutting the probate INFORMALLY by documenting an end articulation. On the off chance that no questions exist over the organization of the bequest, the Personal Representative may appropriate the rest of the advantages for the heirs and document an end proclamation as gave in Utah Code area 75-3-1204. Any intrigued individual may article to the end explanation by documenting a Petition or Motion. In the event that no procedures including the individual agent are pending in the court one year after the end articulation is documented, the arrangement of the Personal Representative ends.

Shutting the probate FORMALLY with a Petition to the court. An Utah FORMAL PROBATE procedure is required at whatever point the court needs to determine questions. On the off chance that a debate exists over the last bookkeeping or any of the demonstrations and choices of the Personal Representative after the organization of the bequest, the Personal Representative and some other intrigued individual (family, heirs, or loan bosses) can document a Petition for a court hearing, choice or court request. The judge may administer on a contested issue subsequent to perusing legitimate briefs from the gatherings, or the judge may plan a conference to tune in to testimony, see the proof and think about lawful contentions. In the event that the court manages and concurs with the activities of the Personal Representative and the last bookkeeping, it will issue a request endorsing the Petition and discharging the Personal Representative from every single further commitment. On the off chance that the court does not concur, it might arrange the Personal Representative to address all blunders and cure botches. Any individual who can’t help contradicting a request shutting the home may claim the choice to an Utah redrafting court. Stage 3, the Closing phase of an Utah probate, closes when the Personal Representative is discharged (released), if no interests are pending.

No state necessitates that you procure a lawyer to control you through the probate procedure in the event that you’ve been named as executor in somebody’s will. This doesn’t prevent a few regions from requiring it, in any case. Before you head to the town hall with the will close by, make a fair evaluation of the home and acclimate yourself with state and district rules.

In the state of Utah Probate is more mind boggling in certain states than in others, and the domain itself may hurl some notice hails that you need proficient lawful assistance. Consider reaching a lawyer if:
• The expired didn’t leave a will. This is called an intestate bequest and can include increasingly complex probate rules.
• The beneficiaries and heirs are squabbling and despondent. There’s a plausibility at least one of them may challenge the will.
• The domain doesn’t meet all requirements for any of the improved procedures that are accessible in many states, or it incorporates strange resources, for example, mineral rights or a patent.
• The decedent didn’t leave enough resources and money to cover every one of his obligations. This is a bankrupt domain and you could be held lawfully obligated in certain states in the event that you pay the off-base obligations from what money and property is accessible.
• The home owes state or government home assessments.
• Your state hasn’t received the Uniform Probate Code. The UPC as a rule makes the probate procedure simpler.

On the off chance that you begin probate procedures, at that point find that you’re stuck between a rock and a hard place, you can procure a lawyer mid-process – it’s not very late. You ought to likewise consider contracting a bookkeeper for the domain too. You can’t approach town hall staff for assistance. Other than furnishing you with essential structures and guiding you to guidelines in regards to technique, they’re not permitted to help or do whatever could be translated as offering legitimate guidance. The judge can’t give you legitimate guidance, either, and neither can his law assistants. On the off chance that you do continue without legitimate insight, you should initially document an application or appeal with the court to open probate, alongside the will and the passing authentication. In certain states, it is possible that you or the court must distribute a notice to invested individuals that the domain is going to enter probate. The court will at that point commonly plan a meeting where the judge will pronounce that the will is legitimate – on the off chance that it is.

You may need to carry the will’s observers to the consultation so they can vouch that it’s the report they saw the perished sign. The judge will approve you to go about as executor. You’ll at that point need a duty ID number for the bequest from the Internal Revenue Service – the domain can’t execute money related business under the expired’s Social Security number after his demise. You should likewise open a home financial balance, and you’ll require the duty ID number. Most states necessitate that you next set up a stock of the domain’s benefits and submit it to the court right off the bat in the probate procedure. A few states have structures accessible for this – you can check your state’s site or ask the court assistant. The structures for the most part request estimations of every advantage so you may need to organize to have some property evaluated.
The expired’s loan bosses must be advised that the decedent has kicked the bucket and that the domain is in probate. Contingent upon your state, you might almost certainly basically distribute a notice in the paper, yet a few locales necessitate that you mail authority notice to each one of those you’re ready to distinguish from investigating the expired’s close to home desk work and financial balances. You should tell them to what extent they need to make claims for the cash they’re owed – this relies upon your state’s principles.

As leasers make claims, you’re answerable in many states for choosing in the event that they’re authentic and whether they ought to be paid or denied. On the off chance that domain or annual expenses are expected, you should set up the profits and settle the regulatory expenses from home assets. Truth be told, exceptionally huge domains must record returns; in case you’re the executor of a home worth a large number of dollars, contact a CPA to support you. Your last duty is to disseminate the perished’s outstanding property, after all obligations and assessments are paid, to the beneficiaries named in his will. Most states necessitate that you get court endorsement first. You’ll most likely need to document a last bookkeeping, clarifying all that you did for the benefit of the home, and give receipts and bank records to the exchanges. When the obligations are paid and the property is circulated, after your last bookkeeping is documented, the court will probably close the case and you’ll be soothed of your obligations.

Will Probate Lawyer

When you need a Probate Lawyer call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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Forbearance Agreement Lawyer

Forbearance Agreement Lawyer

There is a very specific difference in granting forbearance and amending the terms of a loan. For example, if the maturity date of a loan comes due and the debtor has not fully repaid the loan, the lender can change the terms of the loan to extend the maturity date. By making this amendment, the lender has ensured that the loan does not enter into default and that he or she keeps the terms of the loan in place. When the lender amends the loan, the debtor must still make payments according to the terms of the original loan. When a forbearance agreement has been issued, the parties temporarily put the terms of the loan on hold. By entering into a forbearance agreement, the borrower states that they have defaulted on the terms of the loan. However, through this agreement, they agree to resume the payments on the loan after the forbearance period. In return, the lender acknowledges the default but refrains from pursuing collections during the forbearance period. In many cases, the lender will attach certain conditions to the loan and the borrower for allowing the forbearance. These may include continued interest accrual during the forbearance period, repayments at a higher interest rate when the loan resumes, or additional security for the loan. If the borrower does not resume payments on the loan at the specified date, the lender will be able to sue for breach of contract and collect the debt on the loan under the terms of the original loan agreement.

Forbearance Attorney

Before granting forbearance, there will be a complete investigation of the financial standings of the borrower. In addition to checking finances and credit ratings, the lender should conduct a search for liens, tax liens, or other judgments against the borrower to gain a complete view of their finances. In addition, a survey will be conducted to ensure that all collateral is still in place to secure the loan. The forbearance agreement will contain many legal stipulations.

Loan Is in Default

First, it must contain the information stating that the loan in question is in default and that the borrower admits to this default. It must also include information that the lender is in full rights to claim a summary judgement against the borrower if the loan is not repaid. This gives the lender the right to collect on the debt if the forbearance is not honored.

Legal Conditions of the Forbearance

The next thing that you must include in this document is legal conditions of the forbearance. This will state that this contract is only in effect if the borrower agrees to, and honors all of, the conditions in the forbearance agreement. This section will also include information that states what will happen if the parties do not honor the forbearance agreement. In most cases, it will state that the loan will enter into default. Moreover, it will state that full collections on the loan will begin immediately.

Conditions of the Loan in Relation to Security

The third part of the agreement will specify any conditions of the loan in relation to security. If the loan was previously secured by property or goods, or if the forbearance requires a security deposit, the terms will be defined. The borrower must agree to all the terms and provide the necessary security before finalizing the agreement. All parties should carefully review this part of the agreement.

Release of Liability

The final section of the agreement will give a release of liability to the lender from all other parties. This release will cover any loss or damages caused by the forbearance agreement, loan documentations, or any other actions taken during the process. This section protects the lender from any “backlash” from the borrower.

What Are the Benefits of Forbearance?

Forbearance has many benefits for both the borrower and the lender. Lenders get an admission of default from the borrower. This admission will stand in court as a reason to collect the debt with aggression. The borrower, if granted forbearance, gets a second chance to pay off their debt without much damage to their credit history. Forbearance is not for everybody or applies in every situation. There must be a willingness and ability for the borrower to repay the debt at a later time for this type of legal action to work. If the debtor does not foresee the ability to repay in the future, or negates the deal, the creditor has their admission of default and can aggressively collect the debt.

In a forbearance agreement, the loan owner (“lender”) agrees to reduce or suspend your payments for a set amount of time. With a repayment plan, the lender temporarily increases your monthly payment by adding part of the overdue amount to your current payments so that you can get caught up on the loan. In a modification, the lender typically lowers your monthly payment and brings the loan up to date by adding any past-due amounts to the balance of your debt.

How Forbearance Agreements Work

While a loan modification is a permanent solution to unaffordable monthly payments, a forbearance agreement provides short-term relief for borrowers. With a forbearance, the lender agrees to reduce or suspend mortgage payments for a while. During the forbearance period, the servicer (on behalf of the lender) won’t initiate a foreclosure. In exchange, the borrower must resume making the full payment at the end of the forbearance period, and typically get current on the missed payments, including principal, interest, taxes, and insurance. You can usually:
• pay the amount in a lump sum
• add an extra amount to your regular payments each month until the entire skipped amount is repaid, or
• complete a loan modification (see below) in which the lender adds the unpaid amounts to the balance of the loan.
The specific terms of a forbearance agreement will vary from lender to lender. If a temporary hardship causes you to fall behind in your mortgage payments, a forbearance agreement might allow you to avoid foreclosure until your situation gets better. In some cases, the lender might be able to extend the forbearance if your hardship isn’t resolved by the end of the forbearance period to accommodate your situation. In a forbearance agreement, unlike a repayment plan, the lender usually agrees in advance for you to miss or reduce your payments.
Repayment Plans: Getting Caught Up on Past-Due Amounts
If you’ve missed some of your mortgage payments due to a temporary hardship, a repayment plan might provide a way to catch up once your finances are back in order. A repayment plan is an agreement to repay the delinquent amounts over time.
Here’s how a repayment plan works:
• The lender spreads your overdue amount over a certain number of months.
• During the repayment period, a portion of the overdue amount is added to each of your regular mortgage payments.
• At the end of the repayment period, you’ll be current on your mortgage payments and resume paying your normal monthly payment amount.
The length of a repayment plan will vary depending on the amount past due and on how much you can afford to pay each month, among other things. A three- to six-month repayment period is typical.

A Signed Modification Permanently Changes the Loan Terms

A loan modification is a permanent restructuring of the loan where one or more of the terms are changed to provide a (hopefully) more affordable payment. If you’re currently unable to afford your mortgage payment due to a change in circumstances, but you could make a modified payment going forward, this option might help you avoid a foreclosure.

How the Lender Adjusts Your Payment

With a modification, the lender might agree to do one or more of the following to lower your monthly payment:
• reduce the interest rate
• convert a variable interest rate to a fixed interest rate
• extend of the length of the term of the loan, or
• forbear some of the principal balance. (“Forbearing” the principal means setting aside a portion of the total debt before calculating your monthly payment. The borrower typically has to pay the set-aside portion in a balloon payment when refinancing or selling the home, or when the loan matures.)

Qualify for a Modification

Generally, to get a loan modification, you must:
• provide all required documentation to the servicer for evaluation (required paperwork will likely include a financial statement, proof of income, most recent tax returns, bank statements, and a hardship statement)
• show that you can’t make your current mortgage payment due to a financial hardship, and
• complete a trial period to demonstrate you can afford the new monthly amount.

A Forbearance Does Not Necessarily Stop Foreclosure

A forbearance agreement with the mortgage lender’s loss mitigation department usually does not take the borrower out of foreclosure. Forbearance simply causes the bank to “postpone” or “continue” the foreclosure sale until the payments are completely caught up. If the borrower does not comply with the exact terms of the forbearance agreement (a few days late, a few dollars short), the foreclosure sale takes place immediately (often within days). Forbearance agreements are essentially a way for mortgage lenders to squeeze more money out of a borrower. Due to the loose foreclosure laws, lenders often disguise a last grab at the borrowers’ money as a “workout plan” for the loan, knowing they will be foreclosing on the property anyway. Forbearance agreements are stacked against the borrower and almost always result in foreclosure. Most borrowers would be better off with just about any type of arrangement, other than a forbearance agreement. In rare cases, the lender may offer an affordable forbearance agreement, but it quite uncommon. Many of the Utah bankruptcy cases filed by this office are the result of borrowers entering into forbearance agreements with mortgage lenders without understanding the implications.

Who is Eligible for a Forbearance Agreement?

The lender’s goal in offering a forbearance agreement is to improve the chances of eventually receiving full payment, or at least a more significant amount than it could expect if it were to enforce the terms of the original loan documents. Generally if the business can establish that the cash flow problem is short-term and there is a substantial likelihood that timely payments will resume within an acceptable time frame or the loan be refinanced and paid in full, the lender will be more inclined to consider forbearance. On the other hand, if it appears to the lender that the company’s financial situation will only worsen and the best chance to minimize losses comes from pursuing its legal remedies immediately, a forbearance agreement is unlikely. Thus, one aspect of the request and negotiation regarding a commercial loan forbearance agreement will involve putting together a plan to demonstrate to the lender that the problem is short-term and that the company has a plan for stabilizing its finances and making good on the loan. Driving the debtor company into bankruptcy or dissolution is bad for the lender, but so is gambling on a business that is likely to deteriorate further rather than recover.

Negotiating a Commercial Loan Forbearance Agreement

When you request forbearance in connection with a commercial loan agreement, you are not asking a “yes” or “no” question. Rather, the lender’s willingness to consider forbearance opens a discussion of terms that will provide the lender with adequate protection while allowing the business room to recover.

Concessions to the Borrower in a Forbearance Agreement

The goal of the forbearance agreement is to allow the borrower to stabilize business operations and regain its ability to pay debts as promised. In order to achieve that, the lender will typically agree to forbear its right to accelerate the debt and to pursue other legal remedies for a specific period of time. Depending on the specifics of the situation, the lender may require partial payment of the delinquent amount or may waive or reduce payments for a specified time period. In exchange for these concessions, the lender will typically require certain actions and commitments from the borrower, which vary depending on several factors.
Concessions to the Lender in a Forbearance Agreement
The lender’s primary purpose in offering forbearance is not to help out the borrower. It is to maximize the lender’s recovery of the debt. Thus, when a lender offers forbearance, it is typical to include provisions designed to assist the lender in ultimately collecting on the debt. Of course, these vary depending upon the terms of the original loan, the extent of the default, the nature of the business, the duration of the problem, and the reason for the default. However, some common provisions include:
• A requirement that the debtor company affirm the amount of outstanding debt and the default
• A waiver of defenses to repayment of the loan
• Requirements that the debtor take certain actions to improve cash flow, such as:
• Working with an outside consultant to increase profitability
• Seeking refinancing of the loan
• Listing certain property for sale, whether real estate or excess inventory
• Additional security on the loan
• A representation from the debtor that it does not intend to file for bankruptcy protection
Talk to a Business Lawyer about Commercial Loan Forbearance
When a company faces a short-term cash flow problem or a crisis arises, the ability to negotiate with creditors may mean the difference between a rough period and closing the doors for good. Our experienced business lawyers can help you build the strongest case possible for forbearance and then negotiate on your behalf to increase your likelihood of success.
Mortgage Forbearance Agreement
A mortgage forbearance agreement is an agreement made between a mortgage lender and delinquent borrower in which the lender agrees not to exercise its legal right to foreclose on a mortgage and the borrower agrees to a mortgage plan that will, over a certain time period, bring the borrower current on his or her payments.
When Borrowers Have Trouble Paying
A mortgage forbearance agreement is made when a borrower has a difficult time meeting his or her payments. With the agreement, the lender agrees to reduce or even suspend mortgage payments for a certain period of time and agrees not to initiate a foreclosure during the forbearance period. The borrower must resume the full payment at the end of the period, plus pay an additional amount to get current on the missed payments, including principal, interest, taxes, and insurance. The terms of the agreement will vary among lenders and situations. A mortgage forbearance agreement is not a long-term solution for delinquent borrowers; it is designed for borrowers who have temporary financial problems caused by unforeseen problems such as temporary unemployment or health problems. Borrowers with more fundamental financial problems such as having chosen an adjustable-rate mortgage on which the interest rate has reset to a level that makes the monthly payments unaffordable must usually seek remedies other than a forbearance agreement. A forbearance agreement may allow a borrower to avoid foreclosure until his or her financial situation gets better. In some cases, the lender may be able to extend the forbearance period if the borrower’s hardship is not resolved by the end of the forbearance period to accommodate the situation.

Mortgage Forbearance Agreements vs. Loan Modifications

While a mortgage forbearance agreement provides short-term relief for borrowers, a loan modification agreement is a permanent solution to unaffordable monthly payments. With a loan modification, the lender can work with the borrower to do a few things (such as reduce the interest rate, convert from a variable interest rate to a fixed interest rate or extend the length of the loan term) to reduce the borrower’s monthly payments. In order to be eligible for a loan modification, the borrower must show that he or she cannot make the current mortgage payments because of financial hardship, demonstrate that he or she can afford the new payment amount by completing a trial period and provide all required documentation to the lender. The documentation the lender requires could include a financial statement, proof of income, tax returns, bank statements, and a hardship statement.

Forbearance Agreement Fraud

A forbearance agreement, simply put, is an agreement between the lender and borrower to skip payments for a period of time due to temporary difficult circumstances on the part of the borrower. A forbearance agreement usually results in foreclosure delay and gives the borrower a chance to get back on stable ground. After the forbearance agreement period expires, the loan will revert to its original terms. In most cases, the lender still expects to have the borrower repay the full amount borrowed. If you are unable to meet your obligations because of unexpected and temporary financial difficulties, arranging a mortgage forbearance agreement with the help of an attorney could be one option to save your home.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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What Is An Investment Memorandum?

What Is An Investment Memorandum

An investment memorandum is a legal document that a company presents to potential investors to explain the objectives, risks, and investment terms surrounding a funding round. This includes financial statements, management biographies, company details, and many more items that help give a detailed view of the business and financial plan going forward.

Offering Memorandum

An offering memorandum is a legal document that states the objectives, risks, and terms of an investment involved with a private placement. This document includes items such as a company’s financial statements, management biographies, a detailed description of the business operations, and more. An offering memorandum serves to provide buyers with information on the offering and to protect the sellers from the liability associated with selling unregistered securities. An Offering Memorandum is also known as a private placement memorandum. It is used as a tool to attract external investors, either specifically targeting a known group or just soliciting willing investors in general. The document enables the investor to understand in detail the investment, so as to help them assess their interest in participating in the deal.

An investment banker often prepares an offering memorandum on behalf of the business owners. In investment finance, an offering memorandum is a kind of a detailed business plan that highlights information required by an investor to understand the business. It provides details on the terms of engagement, potential risks associated with the business, and a detailed description of the operations of the business. The document also often includes a subscription agreement that acts as a contract between the two parties, i.e., the investor and the issuing company. Investments formally follow these guidelines and are mostly required by securities regulators. A prospectus is similar to an offering memorandum, but the former is for publicly-traded issues while the latter is for private placements. Business growth requires an injection of capital that is obtained from investors. The offering memorandum is part of the investment process. For instance, a company may decide to increase the number of its offices, which will require a significant amount of funds. The process begins with the firm deciding how much they need for the expansion. Then, an investment banker drafts the offering memorandum, which must comply with existing procedures and securities laws and regulations. The company then chooses who to issue the document with, depending on their targeted investors. It is much like the process of doing an IPO, but an offering memorandum is aimed at a private placement investment rather than the company seeking funds going public.

Understanding an Offering Memorandum

An offering memorandum, also known as a private placement memorandum (PPM), is used by business owners of privately held companies to attract a specific group of outside investors. For these select investors, an offering memorandum is a way for them to understand the investment vehicle. Offering memorandums are usually put together by an investment banker on behalf of the business owners. The banker uses the memorandum to conduct an auction among the specific group of investors to generate interest from qualified buyers. An offering memorandum, while used in investment finance, is essentially a thorough business plan. In practice, these documents are a formality used to meet the requirements of securities regulators since most sophisticated investors perform their extensive due diligence. Offering memorandums are similar to prospectuses but are for private placements, while prospectuses are for publicly traded issues.

Example of an Offering Memorandum

In many cases, private equity companies want to increase their level of growth without taking on debt or going public. If, for example, a manufacturing company decides to expand the number of plants it owns, it can look to an offering memorandum as a way to finance the expansion. When this happens, the business first decides how much it wants to raise and at what price per share. In this example, the company needs $1 million to fund its growth at $30 per share. The company begins by working with an investment bank or banker to draft an offering memorandum. This memorandum complies with securities laws outlined by the Securities and Exchange Commission (SEC). After compliance is met, the document is circulated among a specific number of interested parties, usually chosen by the company itself. This is in stark contrast to an initial public offering (IPO), where anyone in the public can purchase equity in the company. The offering memorandum tells the potential investors all they need to know about the company: the terms of the investment, the nature of the business, and the potential risk of the investment. The document almost always includes a subscription agreement, which constitutes a legal contract between the issuing company and the investor.

Who prepares the Offering Memorandum?

When any company goes through a sale process, it hires an investment banker. The first step of the banker is to understand the company and gather as much information as possible from top management to come up with a profile the company.

The banker prepares the CIM and uses it as a marketing document, which is intended to make the company look attractive as the objective is “not just to sell, but to sell for maximum value.” The reason an investment banker tries to sell a company at the maximum value is because they represent the best interest of their client (the seller), and that their commission is based on the sale price.

Contents of the Offering Memorandum

An offering memorandum comprises key information on the company’s future growth strategy, upcoming opportunities in the market, strategy for achieving future projections, and details on competition in the marketplace. How the current management team plans on dealing with weaknesses, operations scalability, etc., are detailed in the document. The investment banker, financial advisors, and the like, should provide valuable information but the offering memorandum should also contain information directly from the company. Every clause should be scrutinized and vetted to ensure it’s free from errors or omissions. The document is meant to give the company an opportunity to convince targeted investors, and it should be flawless for this purpose.
Offering Memorandum Table of Contents:
• Summary of the Offering
• Business Summary
• Requirements for Purchasers
• Forward-Looking Information (Financial)
• Risk Factors
• Use of Proceeds
• Management
• Compensation
• Board of Directors
• Capitalization Table and Dilution
• Legal Information
The document should present data to show the company’s progress, and provide future projections, highlighting various strategies being implemented to cope with challenges. It should present a realistic picture of the industry the company operates in and show the investor clearly what the company’s prospects and goals are. False information is dangerous and can attract heavy fines if it is determined that investors have been deceived into making commitments. The details on the balance sheet should be presented to tell the investor what the business is worth in assets and liabilities, which also helps the investor determine if the share value is worth committing their investment. Ultimately, the presentation should portray the company as a valuable entity that anyone should feel fortunate to have the opportunity to invest in.

Offering Memorandum vs. Summary Prospectus

While an offering memorandum is used in a private placement, a summary prospectus is the disclosure document provided to investors by mutual fund companies before or at the time of sale to the public. This written document is an abridged version of the final prospectus that allows investors to see pertinent information regarding the fund’s investment objectives and goals, sales charges and expense ratio, focused investment strategy, and data on the fund’s management team. Relevant tax information and broker compensation are also included in the disclosure document. A summary prospectus provides investors the information they need from the final prospectus quickly and in plain English.

Importance of Issuing an Offering Memorandum

The document is legally binding, and its importance goes beyond being a necessary document in the process of investment for both sellers and investors. The document protocol helps the investor understand the opportunities being presented in the investment, imminent risks, potential returns, the operations involved, and the general capital structure. The offering memorandum also provides protection for the investor and for issuers of securities. The issuer is required to follow to the letter all regulations outlined by the SEC (Securities and Exchange Commission). The SEC promotes fairness in the investment industry by shielding investors in the securities industry from falsified information and by aiding the investor in making informed decisions in the process of committing huge amounts of funds. The offering memorandum also presents a professional touch to the seller. Investors cannot commit their money to businesses that don’t look organized or professional in their area of operation. Presenting a memorandum shows seriousness and professionalism in the business.

Offering Memorandum vs Prospectus

A prospectus is used for public markets while an offering memorandum is used for private markets. The offering memorandum document can also be referred to as an “offering circular” if it requires registration with the stock exchange commission. The offering memorandum and the prospectus share many attributes, ranging from the types of disclosures and amounts required to terms and conditions. Both documents describe the terms of the offer, such as the minimum amount to invest and the qualifications of an investor. The investor is also briefed on imminent risks such as tax issues, vulnerabilities, transferability issues, and potential returns. Both documents are basically a detailed business plan, with in-depth information on management structure, strengths and weaknesses, capital structure, asset values, share values, amount of shares available, and financial projections.

What is a Private Placement?

As the name suggests, a private placement is a private alternative to issuing, or selling, a publicly offered security as a means for raising capital. In a private placement, both the offering and sale of debt or equity securities is made between a business, or issuer, and a select number of investors. There may be as few as one investor for any issue. The three most important features that would classify a securities issue as a private placement are:
• The securities are not publicly offered
• The securities are not required to be registered with the SEC
• The investors are limited in number and must be accredited
Companies, both public and private, issue in the private placement market for a variety of reasons, including a desire to access long-term, fixed-rate capital, diversify financing sources, add additional financing capacity beyond existing investors (banks, private equity, etc.) or, in the case of privately held businesses, to maintain confidentiality. Since private placements are offered only to a limited pool of accredited investors, they are exempt from registering with the Securities and Exchange Commission (SEC). This affords the issuer the opportunity to avoid certain costs associated with a public offering as well as allows for more flexibility regarding structure and terms. One of the key advantages of a private placement is its flexibility. The most common type of private placement is long-term, fixed-rate senior debt, but there is an endless array of structuring alternatives. One of the key advantages of a private placement is its flexibility. Private placement debt securities are similar to bonds or bank loans and can either be secured, meaning they are backed by collateral, or unsecured, where collateral is not required. In addition to senior debt, other types of private placement debt issuances include:
• Subordinated Debt
• Term Loans
• Revolving Loans
• Asset Backed Loans
• Leases
• Shelf Issues
Traditionally, middle-market companies have issued debt in the private placement market through two primary channels:
• Directly with a private placement investor, such as a large insurance company or other institutional investor
• Through an agent (most often an investment bank) on a best efforts basis who solicits bids from several potential investors – this is typically for larger transactions: $100MM+.

A private placement issuance is a way for institutional investors to lend to companies in a similar fashion as banks, with a buy-and-hold approach, and with no required trading or public disclosures. Historically, insurance companies refer to investments as purchasing notes, while banks make loans.

Private Placement Securities

In a private placement, the shares of stock or debt instrument are considered securities under both federal and state securities laws. Consequently, any transaction involving the shares or debt must be registered under such securities laws or be exempt from registration. Typically, the offeror is an emerging growth company that has few capital alternatives, although more mature companies tend to be more successful in this process.

Investment Memorandum Lawyer

When you need legal help with an Investment Memorandum, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Notice Of Trustee Sale

Notice Of Trustee Sale

A Notice of Trustee’s Sale informs homeowners and mortgage borrowers of record that their home will be sold at a trustee’s sale on a specific date and at a specific location. The actual sale typically completes a non-judicial foreclosure in states allowing this type of foreclosure process. The highest bidder at a trustee’s sale receives title to the property being sold; if no one bids, title to the property reverts to the foreclosing mortgage lender.

Foreclosure Process Determined by State Law

Home-loan foreclosure procedures are governed by state law. In general, there are two types of foreclosures. Judicial foreclosures fall under court jurisdiction, while non-judicial foreclosures are overseen by third-party entities including title or escrow companies appointed as trustees. States may allow either or both types of foreclosure proceedings. Mortgage lenders typically foreclose mortgage loans based on non-payment or other default of a mortgage loan according to terms outlined in a recorded document, such as a Mortgage or Deed of Trust.

The Role of a Foreclosure Trustee

In non-judicial foreclosures, a third-party entity known as a trustee conducts the foreclosure based on documentation and information submitted by the mortgage lender. The trustee files a Notice of Default, which is a document that establishes the mortgage default and names parties who took out the home loan being foreclosed. This notice is recorded with the county where the property is located and typically specifies a time limit for mortgage borrowers or other interested parties to respond or reinstate the mortgage by paying past-due payments, late fees and trustee fees. The time frame between filing a Notice of Default and a Notice of Trustee’s Sale varies between 60 days to several months depending on state laws and the volume of foreclosures being processed by the trustee.

Notice of Trustee’s Sale

If the mortgage borrowers or current homeowners don’t cure the default as outlined in the Notice of Default, the foreclosure trustee will prepare and record a Notice of Trustee’s Sale. This document establishes where and when the property being foreclosed will be sold and provides the minimum opening bid for the property. The Notice of Trustee’s Sale is published in a newspaper local to the property being foreclosed, and it also is mailed to the borrowers of record and posted on the subject property. Tenants of property posted with a Notice of Trustee’s Sale must be prepared to vacate the property prior to the date of the trustee’s sale because they may be subject to eviction.

Foreclosure and Tenants

Tenants of a home being sold through a trustee’s sale may wish to obtain legal advice or contact the trustee for more information about their rights and responsibilities. When the trustee’s sale is completed, title to the property typically is transferred from the homeowners (the tenants’ landlord) to either the foreclosing lender or the winning bidder at the trustee’s sale. Tenants can attempt to negotiate a rental agreement with the property’s new owner, but success can’t be guaranteed.

How Do Trustee’s Sales Work?

A trustee’s sale is one option that a lender has if you get behind on your mortgage and default on your payments. Foreclosure is usually the second option. The two differ only slightly in what they entail, as the trustee’s sale is often chosen because of the potential for the lender to recover more of the money that has been lost from the defaulted loan.

Presale

A trustee’s sale is usually called at least 90 days before the sale is actually held. This occurs so that the person who is in default on his home loan still has time to get his financial situation straightened out to recover any potentially lost assets. When the lender decides to use a trustee’s sale, a notice is generally filed with the county recorder’s office and the borrower is presented with a notice of sale indicating when the sale is going to take place. Investors go to trustee’s sales with the idea of buying property for less than market value so that they can turn around and resell it at a profit.

Sale

A trustee’s sale is much like an auction, except the property being sold is property that has been seized as a result of someone’s failure to pay her bills. The property is auctioned off along with any remaining possessions that have been seized. These are either sold individually or in lots. Generally, the buyer has to purchase the property sight unseen and is taking a significant risk in doing so. However, the possibility of buying real property or other items at significantly less-than-market value is enticing enough for many investors.

Stipulations

Some stipulations generally exist that you must qualify for before you can participate in a trustee’s sale. You cannot simply show up and start bidding without registering for the sale first. You also have to show that you have sufficient funds to bid on the items you intend to win in the auction. This must typically be in the form of cash or a cashier’s check. This is one reason the lender may choose the trustee’s sale in the first place — it will receive immediate cash payment for the property being auctioned off.

Bidding

Once bidding begins for the property, the person who has lost the property will be subject to the same bidding rules as everyone else involved in the sale. Bidding can begin as low as one penny over the asking price by the lender. The winning bidder can generally expect to pay some fees if he has the winning bid. This fee is somewhere around 1 percent but can vary depending upon the state in which the auction is held.

How to Postpone a Trustee’s Auction

When discussing real estate, auctions are referred to as a “trustee’s auction” or “trustee’s sale date.” To postpone this sort or auction, the borrower must first be in default—meaning the borrower is not making mortgage payments. Borrowers who stop making mortgage payments will sooner or later cause the bank to foreclose. How that foreclosure is handled depends on state law, but more than half of the states in the U.S. are trust deed states, and the trustee handles foreclosures.
Before Postponing the Auction
• After a borrower stops making the mortgage payments, the lender notifies the trustee to initiate foreclosure proceedings. The trustee is a third party to the trust deed, a position some call “holding a naked title.”
• Although there is no required period before filing a Notice of Default, most lenders prefer to try to collect during the first 60 to 45 days that a borrower falls into arrears, rather than jump into foreclosure proceedings.
• Some states such as Utah require the lender to give the borrower at least 30 days’ notice before filing a Notice of Default.
• Once the Notice of Default is filed, a borrower has 90 days to reinstate the loan by making up the back payments and paying late charges, which include the trustee’s fees. There are a few methods that can be used in postponing an auction.

Redeem the Mortgage

Although people refer to reinstating a mortgage and redeeming a mortgage interchangeably, they are different. To redeem a mortgage is to pay off the mortgage; reinstating requires bringing the mortgage current. During the final days of a non-judicial foreclosure process, a lender is not required to accept a reinstatement but must allow redemption.

Apply for a Loan Modification

Lenders are also not required to postpone an auction in exchange for a loan modification, but most banks will try to work out a temporary repayment schedule. This does not mean the bank will not send the home to auction, so be careful; borrowers may want to ask the bank for a written promise not to move forward with the auction. If accepted, banks will grant a temporary loan modification, and after three to six months, tell the borrower they are filing foreclosure because the borrower does not qualify for a permanent loan modification.

File for Bankruptcy

A bankruptcy filing does not permanently stop an auction, but it could postpone the auction for a while. When a debtor files for bankruptcy, the court issues an order known as an automatic stay that stops attempts from creditors to collect money—including postponing an auction.6 However, the lender can then file a motion to lift the automatic stay, especially if the Notice of Default was already filed.

File a Temporary Restraining Order

Most people associate a temporary restraining order with domestic abuse, but petitioning the court for protection from abuse can also include a request to postpone an auction. Borrowers will need to hire a lawyer to file a temporary restraining order, and that lawyer might need to find a reason based on fraud or some wrongdoing on the lender’s part. Even if the lawyer is successful and wins the argument, the restraining order is not permanent.

Attempt to Make a Short Sale

Telling a lender that the borrower is attempting to make a short sale is generally not enough; the borrower must submit an offer to the bank from a qualified buyer. The real estate agent or lawyer handling the negotiation for the borrower then calls the bank’s negotiator and requests a postponement of the auction. Often, banks will not consider a request for a postponement until the auction is a few days away. In Utah, and many other states, a notice of trustee sale is the final written notice that a lender has scheduled a date to sell a home in a foreclosure auction. When a borrower receives a notice of default or a notice of trustee sale, there is time remaining to take steps to stop the foreclosure process, but quick and decisive legal action must be taken to save a home from foreclosure. In most states, the lender has the right to issue the notice of foreclosure sale and move forward with a mortgage foreclosure sale when a borrower stops making their mortgage payments. The foreclosure process is formally started when the notice of default is sent to the home after a borrower misses 3 or more monthly mortgage payments. Any failure to answer the notice by either contacting the lender or reinstating the mortgage will likely to lead to the notice of trustee sale being sent.


The best way to stop the notice of foreclosure sale is to hire a very good foreclosure attorney. Once you receive a notice of foreclosure sale, it is best to go through the courts to use legal methods to stop the foreclosure sale date. It is really important to understand how much time you have to when you receive the first notice from the lender. Receiving a notice of default does not mean you will lose your house immediately and you can still stop the sale date through number of different legal methods. The foreclosure attorneys at Consumer Action Law Group prepare lawsuits to save houses that are being illegally foreclosed, and their foreclosure lawyers file bankruptcy to stop and fight the foreclosure process as well. Another method that homeowners can attempt is to contact the lender to apply for a loan modification. If a loan modification is being reviewed and the foreclosure process is moving forward, it is best to immediately contact a foreclosure lawyer and discuss a potential lawsuit. It is also possible to negotiate a deed in lieu from the lender if the goal is to walk away from the house without owing any money. The deed in lieu will stop both the foreclosure and may wipe out any claims for deficiency. If all else fails, you can seek help from a real estate attorney that help with short sale to sell the home with approval from the lender.
Difference Between A Notice Of Default And Notice Of Sale In Foreclosure
In a non-judicial foreclosure, borrowers sometimes receive a Notice of Default and a Notice of Sale, depending on state law. Read on to learn the difference between these two documents and under what circumstances you might receive them.

Initiation of a Non-judicial Foreclosure

When you take out a loan in a state that allows non-judicial foreclosures, you will likely sign a deed of trust or a mortgage, which contains a power of sale clause. This clause gives the trustee a third party that manages the non-judicial foreclosure process in certain states the right to sell the home though an out-of-court process if you stop making payments.

Notice of Default

Sometimes, depending on state law, a non-judicial foreclosure process begins when the trustee records a Notice of Default (NOD) at the county recorder’s office.
The NOD serves as public notice that the borrower is in default. The NOD often contains:
• the name and address of the borrowers
• the name and address of the lender
• the name and address of the trustee
• the address and/or legal description of the mortgaged property
• a description of the default
• the action required to cure the default
• the date by which the default must be cured, and
• a statement that if the default is not cured by the deadline, the lender intends to sell the mortgaged property at a public sale.
If the borrower does not “cure” the default by bringing the payments up to date—including late charges and foreclosure fees—the trustee might (again, depending on state law) then prepare and file a Notice of Sale for the property.

Notice of Sale

The Notice of Sale (NOS) generally states:
• the property address and/or legal description
• a statement that the property will be sold at a public auction, and
• the date, time, and location of the foreclosure sale.
The NOS might be recorded in the county land records, mailed to the borrower, published in a newspaper of general circulation in the county where the home is located, as well as posted on the property and/or in a public place.

Differences from State to State

While you might get both a Notice of Default and a Notice of Sale as part of the non-judicial foreclosure process where you live, foreclosure procedures and the documents you will receive do vary widely from state to state. You might get:
• a Notice of Default followed by a Notice of Sale
• a combined Notice of Default and Sale (or similar document)
• a Notice of Sale stating that the property will be sold on a certain date, or
• notice by publication in a newspaper and posting on the property or in a public place.

Call Ascent Law LLC

If you’re facing a foreclosure and want to learn the specific procedures in your state, as well as about your rights during the process and whether you have any potential defenses to the foreclosure, consider talking to an attorney.

Notice of Trustee Sale Attorney

When you need an Attorney for a Notice of Trustee Sale, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Foreclosure Lawyer Farmington Utah

Foreclosure Lawyer Farmington Utah

Farmington is a city in Davis County, Utah, United States. It is part of the Ogden–Clearfield, Utah Metropolitan Statistical Area. The population was 18,275 at the 2010 census and was estimated at 24,514 in 2018. An amusement park, called Lagoon Amusement Park, is located in Farmington. The city was ranked 12th on Money magazine’s “Best Places to Live” index in 2011. Farmington is a suburb of Salt Lake City with a population of 23,208. Farmington is in Davis County and is one of the best places to live in Utah. Living in Farmington offers residents a sparse suburban feel and most residents own their homes. In Farmington there are a lot of parks. Many families and young professionals live in Farmington and residents tend to be conservative. The public schools in Farmington are highly rated.


Sometimes, homeowners aren’t able to afford the fees that an attorney would charge to represent them during a foreclosure. If you’re facing a foreclosure, but don’t have money available to hire a lawyer to work with you throughout the process, you might want to consider:
• dealing with the foreclosure on your own without an attorney
• paying for just one consultation with an attorney
• finding a pro bono (free) attorney, or
• getting assistance from a free legal aid society or a foreclosure prevention clinic in your area.

How Much Will a Foreclosure Lawyer Charge?

Most foreclosure attorneys structure their fee agreements by charging an hourly rate, collecting a flat fee, or charging a monthly rate. The amount you’ll pay in total could range from several hundred dollars to several thousand dollars. Exactly how much you’ll have to pay varies based on a number of factors, including the attorney’s level of experience and how much other attorneys in the area charge.

Deal With the Foreclosure Without a Lawyer

At Ascent Law, we strongly discourage you to face a foreclosure without having a lawyer on your side. The truth is, you should speak with a foreclosure attorney to discuss the specifics of your case if you don’t do that, you are not making a wise choice. However, it is your choice. So, if you don’t want to fight the foreclosure, you can probably deal with it on your own. You should educate yourself about what steps are involved, how long a foreclosure typically takes in your state, and exactly when you’ll have to move out of your home. You can apply for a mortgage modification during foreclosure without an attorney. You probably don’t need an attorney to help you apply for a mortgage modification. A modification is a permanent change to the loan terms, such as an interest rate reduction, to make the monthly payments more affordable. To get the ball rolling, call your loan servicer and let it know you would like to apply for a modification. The servicer will tell you exactly what you need to do to submit an application

Why you might want to apply for a loan modification

If you apply for a modification, you might be able to work out an agreement that will allow you to keep the home. Even if you can’t work out a deal, applying for a modification will you buy you some time to stay in the home before the lender completes the foreclosure. Generally, under federal law (and some state laws), a foreclosure must stop while the servicer evaluates your application.

Hiring a Foreclosure Attorney

You should seriously consider hiring a foreclosure attorney if you think you have a valid defense to the foreclosure, like the servicer didn’t follow the law or made a serious error with your account. In most cases, you’ll have to raise the defense in court, either by filing your own lawsuit (if the foreclosure is non-judicial) or responding to the lender’s lawsuit (if the foreclosure is judicial), which can be complicated. This means that it is usually better to hire an attorney than to go it alone if you want to successfully save your home.
Pay for a Consultation With a Lawyer
You might want to schedule at least one consultation with a lawyer even if you can’t afford to hire an attorney to represent you through the entire process. A lawyer can tell you exactly how foreclosure works in your state and how much time the process will likely take.
Setting expectations
Before going into the meeting, make sure you know how much time the attorney will spend with you, what he or she will help you with—for example, the lawyer may be willing to answer questions about foreclosure, but not about filing for bankruptcy—and how much the attorney charges for the consultation.


At the meeting, you might want to ask the lawyer to provide you with details about foreclosure procedures, to review the facts of your case, and determine whether you might have a defense to the foreclosure. The lawyer can also help you decide your next steps and explain your legal rights.

If you can’t afford to hire an attorney—even for just one meeting—then you could try to find a pro bono (free) attorney.
Some attorneys take on a certain number of pro bono cases to help people who have little or no income (or based on other factors). Contact your state bar association to get help finding pro bono attorneys who might be willing to assist you with your foreclosure case.

What is a Foreclosure Property, and Should You Buy One?

Foreclosures occur due to nonpayment, and though the process and timelines vary by state, the end result is the same: The mortgage borrower loses his or her home. Once the lender takes control of the property, it can sell it off to make up for financial losses on the home. Investors and consumers can purchase these homes—often at auctions or directly from the bank or government agency that owns them.

Why Foreclosures Happen

Foreclosures, at their most basic, occur because the homeowner has failed to make agreed-upon payments with their mortgage lender. The reasons behind this nonpayment can vary. Sometimes, job or income loss is the culprit; for other borrowers, medical bills or credit card debt made it impossible to stay afloat. In some cases, it may be due to bankruptcy, divorce, disability, or other personal or financial issues.
Pros & Cons of Foreclosed Property
Pros
• May be priced lower than other homes on the market

Cons
• Properties are often poorly maintained or in disrepair
• Sellers are often unwilling to make repairs
• Previous homeowner may take the home back, in some cases
• Could require significant amounts of cash if purchased at auction
• No record of property repairs and maintenance
Most buyers consider buying a foreclosed property to save money. Though not all bank-owned and foreclosed properties are a bargain, many are priced lower than market value due to their condition or the lender’s need to recoup their financial losses quickly. The Department of Housing and Urban Development (HUD), for example, even has homes listed at $1.4 Buying a foreclosed property may allow you to purchase a home you might not otherwise have been able to afford—perhaps one in an in-demand area or with more square footage than you budgeted for. That’s about where the perks end, though. Foreclosed properties often come in poor condition and require many repairs—repairs the seller is typically unwilling to make (the majority are sold as-is). Additionally, a majority of property auctions require cash to purchase the home, so you may not be able to finance the purchase via a traditional mortgage loan.
Finally, there are concerns regarding the previous homeowners. These include:
• Redemption periods. Many states have what’s called a “right of redemption” period, which allows the homeowner to catch up on payments and take back his or her property.
• Squatters. If the previous homeowner (or anyone, for that matter) is squatting in the home, it may be difficult and time-consuming to remove them.
• Lack of maintenance records. Because the previous homeowner is not directly involved with the sale, it can be very difficult to know what repairs and maintenance have been done to the house before you move in. Banks don’t have a record of this type of upkeep.
Stages of Foreclosure
The actual foreclosure process that a lender must go through to seize a property varies by state. In some places, foreclosures must advance through judicial proceedings before the home can be seized. In others, there are non-judicial options. Legally, a foreclosure cannot be initiated until a borrower is at least 120 days behind on their mortgage payments.

How to Negotiate With Sellers

When buying a foreclosure, you’re often purchasing from a large financial institution like a bank or private lender. Because of this, offers usually require multiple approvals and may take longer to move through the pipeline. You can generally expect negotiations to be slower and more difficult than they would be with a traditional seller. Additionally, banks are looking to recoup as much of their losses as possible. As such, they’ll usually present a counteroffer during negotiation which, again, must be approved by several people. When purchasing in a traditional home sale, you can include a home inspection contingency and negotiate on repairs and pricing based on the inspection’s findings. When buying a foreclosed property at auction, individual buyer contingencies (and thus the negotiations based on them) are not allowed. Your best bet for negotiating a foreclosure purchase is to engage a real estate agent—ideally one with foreclosure experience. He or she will be able to help you craft a competitive offer based on comparable sales and market conditions. Foreclosed properties are attractive to buyers because of lower selling prices. Acquisition of a foreclosed property requires awareness of the buying process and considerations that differ from a new development. Nowadays, in this age of rising prices and inflation, prospective homeowners must consider other options other than new developments when scoping for purchases. One of these options is foreclosed properties, which are properties repossessed by either lenders or the local government. Foreclosure happens when the property’s titular owner is unable to keep up the periodic repayments to a lender or the real property tax owed to the local government. There are two ways to acquire foreclosed properties:
• Purchase from a lender, such as a private bank or insurance companies. Interested buyers can inquire via websites or offices, or source listings through SPAV companies who help banks sell off non-performing assets. Foreclosed properties are also listed on housing portals.
• Auction from a government agency. Listings and auction schedules are available from HDMF (Pag-Ibig) and SSS, as well as from government banks such as Land Bank and BSP.
Foreclosed properties can be advantageous both to homeowners and investors. Apart from lower selling prices, foreclosed properties come with lower down payment rates of around 5-10 percent as opposed to 20-30 percent for a new development. Thus, monthly repayment rates are expected to be lower. Foreclosed properties can also appreciate in value depending on ongoing or future developments in its vicinity.

Things to Consider When Buying Foreclosed Properties
• Location: This is a consideration for any property, regardless of its condition or selling prices. Homeowners would do well to consider the area’s safety, vulnerability to natural calamities such as floods or earthquakes, as well as access to basic services such as schools and hospitals. Investors may also look at the presence of major thoroughfares, transport hubs, malls and commercial developments in the area.
• Additional Costs: Apart from paying the selling price or assuming the responsibility for monthly repayments, buyers also shoulder other expenses when acquiring a foreclosed property. These include real property taxes, association dues in private properties or developments, and taxes and fees for the transfer of the property title. In addition, the documentary stamp tax for transactions has increased by 100% due to the train law of 2018.
• Condition of the Property: Foreclosed properties are sold “as is”, meaning the seller will not make further improvements before turning over or selling the property. Prospective buyers must take extra care to check for structural flaws and pitfalls, or features such as plumbing that may require repair. These are additional costs to consider in the acquisition of foreclosed property.

Foreclosure Attorney

When you need a Foreclosure Lawyer in Farmington Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Utah Adoption Lawyer

Utah Adoption Lawyer

Adoption establishes a parent-child relationship between individuals who are not naturally related. In many cases, the process requires a natural parent to relinquish his or her right to the child being adopted, which is why legal adoption requires a court proceeding and adherence to strict procedures. Adoption attorneys must ensure that several parties receive notification of your intent to adopt, including the child’s natural parents, any current guardian or custodian and any other person standing in loco parentis — serving a role similar to a parent in place of a parent. In many cases, including the adoption of a minor stepchild, the noncustodial parent must consent to the adoption. If the noncustodial parent refuses to consent, a trial may be necessary. If a trial occurs, a adoption attorney must establish grounds for the termination of the noncustodial parent’s rights.


Grounds for termination include the following:
• Abandonment
• Abuse
• Neglect
• Unfitness
• Incompetence
Moreover, a father who was not married to the mother of the child being considered for adoption may not have to consent if he did not establish a substantial relationship with the child.

Adoption Lawyers and Why You Need Them

The adoption process is guided by laws and regulations from start to finish. There are state and federal laws that apply for adoptive families and prospective birth mothers. This means not only conducting the adoption in the proper way, but also filling out mountains of paperwork and filing it with the right department at the right time. The role of adoption attorneys in the process, ideally, is to step into the complicated legal matters that the staff of your adoption agency may not be equipped to handle. In this role, the adoption lawyer is an important part of the adoption but is not the primary professional involved in the process. However, in your research of adoption, you may also hear about adoption lawyers playing a different role. Some families, in an attempt to lower adoption costs and simplify the process, decide to use a private adoption attorney as if they were an adoption agency. In these cases, an adoption lawyer leads the whole process. This type of arrangement is generally referred to as an independent adoption.

What Does an Adoption Lawyer Do?

Adoption Lawyer are legal practitioners with expertise in family law, specifically adoption. Adoption law firms are a group of two or more attorneys who practice law. Some of these law firms have an attorney who specializes in adoption law. This specialty can range from stepparent to independent adoptions. Most adoption attorneys handle the legal process but do not locate potential birth parents for their clients, making them an ideal professional for processes like stepparent, relative and identified adoptions. In some cases, however, attorneys can attempt to provide services like locating birth mothers, facilitating communication, overseeing living expenses and protecting families’ financial investments. These are typically services provided by an agency professional who has expertise in these areas, whereas an attorney for adoption is not always trained in these matters that fall outside the legal elements of adoption.
Advantages of Adoption Law Firms:
• Provide crucial legal services: The main benefit of adoption law firms is the safe and solid legal work they provide, which makes the adoption more secure. This advantage is seen when adoption attorneys handle the legal side of adoption that they specialize in. In this capacity, an adoption attorney is required in every adoption, regardless of the other professionals (such as adoption agencies) involved.
• Can complete identified adoptions: If a family has already located a potential birth mother to adopt from (such as a pregnant friend or family member), an adoption attorney may be the only professional they need to complete the process, which can be more cost effective than working with an agency.

These disadvantages are not meant to put down adoption attorneys or be overly critical of their work. Rather, it is simply an issue of working with adoption attorneys in the proper context. They play a vital role in the adoption process. Really, it couldn’t happen without adoption lawyers. However, most are not equipped to fulfil obligations of the adoption process outside of that role. Families who decide to adopt solely through a lawyer for adoption typically run into a variety of issues that wouldn’t be present when working with a full-service adoption agency.
These are issues like:

• Lack of advertising: An important part of the adoption process is finding adoption opportunities for hopeful parents. This means reaching out to prospective birth mothers with family profiles through a process called adoption advertising. While adoption agencies typically have processes and staff members dedicated to this kind of advertising, adoption attorneys do not. Because of this, a family may feel the need to try to advertise by themselves, which is problematic. In some states, it is illegal for families to advertise on their own. When it is illegal, it can be costly and ineffective. For perspective, the largest national agencies carefully track marketing success and have major networking contacts, but still spend an average of $8,000 to $10,000 in advertising for each successful adoption. A family can expect to potentially pay more in advertising through an adoption law firm, especially if the ad is placed on your own.
• Longer wait times: On top of increased expenses and lower efficiency, this can also lead to longer wait times and less opportunity for a successful adoption placement. This is not necessarily because adoption attorneys lack skill. Rather, it is because this part of the adoption process is not something most are fully equipped to handle.
• Unpredictable costs: The total cost of adoption can fluctuate drastically with an adoption law firm. Many lawyers specializing in adoption bill hourly, meaning the adoption can become more expensive the longer it stretches out. Alternatively, some adoption agencies offer fixed fees so that the cost will not steadily increase with the length of the process.
• Less support for potential birth parents: Trained and licensed social workers are vital to successful adoptions. Sometimes, families get frustrated with adoption law firms because they lack a social service department skilled in evaluating, educating and guiding prospective birth mothers through the adoption process. As a result, families can end up in an adoption opportunity with birth mothers who aren’t strongly committed to adoption, aren’t emotionally prepared or don’t understand the process, which can result in an adoption disruption.
• Less availability: Availability with adoption lawyers and adoption law firms can be limited. This can be because most adoption attorneys are working on a handful of cases at once, but also because adoption law firms do not have the staff to answer calls or respond to questions after work hours. As any family will quickly find, the needs of an adoption don’t always come up between 9–5, and having someone who answers the phone is important.

Conversely, a family can choose to work with an adoption attorney in conjunction with a full-service adoption agency that has expertise, experience and resources dedicated to each aspect of the adoption process. Not only can an agency like American Adoptions meet your needs at every step of the way, we also connect families with trusted adoption attorneys for the legal aspects of adoption; that way you don’t have to go out interviewing attorneys on your own.
What Does an Adoption Lawyer Do?
An adoption lawyer can help you if you are trying to gain legal guardianship of a child that isn’t biologically yours. A lawyer can help you find an agency to adopt from if you need one, can file any necessary paperwork, and can represent you in court if necessary.
How Do I Know if I Need an Adoption Lawyer?
If you’re unsure about how to go about an adoption, an adoption lawyer is a good place to begin the process. An adoption lawyer will be knowledgeable on state- and country-specific adoption laws and provide guidance based on your situation, whether it be a private adoption, a step parent adoption, or if you’re a same sex couple wanting to adopt. A lawyer can prepare you for any hearings that may be required in the adoption process. In addition, your adoption attorney can represent you in court if there are legal complications, such as the birth parents changing their minds or trying to extort you.
How Much Does an Adoption Lawyer Cost?
Many adoption attorneys have flat fee services for simple issues like document drafting, review, and filing. For more complex issues like talking to an adoptions agency or going to court, most lawyers charge an hourly rate. Rates will vary depending on the complexity of your issue and where in the country you live, so negotiate a rate up front with your attorney to avoid costly surprises.
What Should I Expect When Working with an Adoption Lawyer?
You should expect to end the process with a child who is a legal member of your family. The entire adoption can take up to 5 years including waiting periods, but it’ll take less time depending on your case. If there are any legal complications or you don’t pass some of the qualifying examinations, the process could take longer. An adoption attorney can guide you through this and potentially expedite the process by knowing who to talk to and what paperwork to file. Adoption lawyers usually focus their practice exclusively on adoptions; however, there are some that practice other areas of the law. I would feel more comfortable working with one that practices exclusively in adoption just in case a situation was to arise that would require that expertise. However, someone who does not exclusively practice in this field wouldn’t be capable of helping you. My suggestion is to find someone with whom you feel comfortable. Adoptions can be stressful and emotional, so you will want to find someone that will bring you comfort during those times. Adoption lawyers can assist in finding an agency. Alternatively, they can assist in pursuing an independent adoption. If you are hiring an adoption attorney to pursue an independent adoption, he will help you prepare all the necessary paperwork required to have a successful adoption. He will also attend any court appearances that are necessary for your adoption. Our attorney only had to appear once for us when we adopted our son in 2014; however, some cases require more than that. Make sure the attorney you choose is familiar with your state’s requirements for adoption.

What Are The Responsibilities And Duties Of An Adoption Lawyer?

The role of an adoption attorney includes filing the appropriate paperwork to begin, continue, and finish the placement process. Another duty or responsibility of an adoption attorney is to appear with you during adoption proceedings. Your adoption attorney should also help you with completely understanding your state’s specific adoption laws. This is something you’ll want to look for when you begin your adoption attorney search– someone who knows the applicable regulations and laws and how they will apply and affect you.

How Do You Find An Adoption Lawyer?

First you call Ascent Law. There are many methods available for finding an adoption attorney that is best for your specific situation. If you know of anyone who has been in a similar situation, ask him or her for referrals and contact information for the adoption attorney he or she used. You can also contact local adoption agencies. They should have a list of adoption attorneys they’ve worked with before. Consider joining and actively participating in a support group. This is another great way to receive contact information or adoption attorney referrals. And one of the easiest ways to receive contact information is through our professional directory. Your search can be state-specific and professional type-specific. Throughout this process, remember that your adoption attorney is there to help, assist, and guide you. He or she should know of all your state’s adoption laws, rules, and regulations. Working with an adoption attorney is a great way to progress through the placement process because of the step-by-step and hands-on help that your adoption attorney should offer. Make use of the resources around you as you explore your options.

Working With an Adoption Lawyer

In almost all circumstances, it is helpful to go through the adoption process with the assistance of an attorney. Creating a family is one of the most significant events in the lives of most people seeking to adopt. You will want to be certain that the adoption you pursue complies with state and federal laws, and that nothing will disturb the relationship that you have built. If you are considering adoption, one of the first steps is to contact a knowledgeable adoption attorney. Similarly, if you are a biological parent, and you are seeking to place your child for adoption, you will also want the assistance of counsel to help you understand your rights. Typically, the adoptive parents will pay for the costs of the birth parents’ attorney because it is important that the birth parents’ rights and wishes are protected.

Contested Adoption Hearings

The examples above presume that the adoption process has received the consent of all parties. This is not always the case, however. Sometimes a court will terminate the parental rights of birth parents without their consent. In these situations, an attorney is especially important. Some states will provide an attorney free of charge to birth parents who are involved in parental right termination hearings. In other states, parents who are at risk of losing their parental rights need to pay for their own counsel. The involuntary termination of parental rights can only happen in certain circumstances. Parental rights can be terminated if the parents have been found to have abused or neglected the children and are unable or unwilling to provide a safe home for the children. Parental rights can also be terminated if a parent has abandoned the child or if they will be incarcerated for a long period of time. A skilled attorney can help you defend your parental rights if you are at risk of an involuntary termination.

The Role of a Lawyer in an Adoption

While potential adoptive parents may see an adoption as a primarily emotional process that formalizes a parental bond, it is also a legal process. Since the parent/child relationship is so important, courts want to be certain that the legal procedures are followed precisely. That is why attorneys are almost always involved in the adoption process. However, the specific involvement of the adoption lawyer will depend on the type of adoption and other factors. If you are working with an adoption agency, they will likely coordinate the attorney services for you. However, if you are doing an independent adoption, you will probably be responsible for finding and hiring your own attorney. In an independent adoption, the adoption lawyer will also likely play a much larger role. In an independent adoption, the attorney will be responsible for making sure that all of the legal requirements of your state are met. This includes making sure that necessary home studies, background checks, and other screening procedures are completed properly. It also may include helping potential adoptive parents gather the documents that they need. If you are in a state that permits facilitated adoptions, often the facilitator will be an attorney. Some adoption attorneys will keep files of potential adoptive parents. When a birth parent reaches out to them, they will help them find an adoptive home for the child. As with independent adoptions, the adoption lawyer will probably be the main professional working with you. For birth parents who are voluntarily terminating their parental rights, the role of the lawyer is to safeguard the rights of the birth parents. The adoption attorney can help explain certain decisions that need to be made and act as an advocate to make sure that your wishes are carried out. They can also assist you if you change your mind and decide to parent the child. In involuntary terminations, the birth parents’ lawyer has one of the most important roles in the process. They are responsible for vigorously defending the rights of the biological parents and fighting the termination if that is what the birth parents want.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Hotel Owner’s Liability For Meth

Hotel Owner's Liability For Meth

Everyone knows that being involved in a property that has been used for meth can be trouble, but most people don’t understand what that means. Utah laws provide explicit directions that must be followed and penalties including criminal prosecution for those who don’t follow the rules. A property owner who uses, or makes, meth must reveal this fact to future buyers. Even if meth is made in small, user quantities the property is a clandestine drug lab according to the law. Subsequent buyers have three years to test for drug contamination. If contamination is found during this period the seller is liable for remediation of the property, payment for associated health problems and all legal fees. The same rules apply for relatives and renters. The owner is responsible, but homeowners insurance will sometimes offer help. The only way for a property owner to be protected from liability, both monetary and criminal, is to have the property remediated as clandestine drug lab. When all the steps have been properly completed the qualified industrial hygienist issues a Decision Statement. If the Decision Statement is issued declaring the property safe for human occupancy, the owner is protected from future liability. If a property has been identified as a drug lab by a law enforcement agency and the owner notified, the property becomes a public health hazard and must be demolished or remediated. The owner is the responsible party who must prevent entry and properly demolish and remove the structures or remediate the property.

It is a crime to allow any unauthorized person to enter a known drug lab. This applies to persons of trust such as real estate agents and banking entities as well as private property owners. A real estate agent showing a property that he/she knows has been used for meth production or use can be prosecuted for criminal charges. The remediation process starts with a Preliminary Assessment prepared only by a qualified industrial hygienist. The Preliminary Assessment must be prepared in a specific manner with specific information. This document includes: descriptions of the property; the contaminated areas; the manufacturing process along with chemicals used; where they were used; sampling procedures; as well as other required information. Testing done with home test kits, by certified testers or home inspectors, can’t be used in substitution for any required testing or documentation. Using these tests for this purpose is fraudulent and may lead to criminal prosecution. Only the specific documentation required by the state and prepared by a qualified industrial hygienist will protect owners, real estate agents and lenders from liability and/or criminal prosecution. Any person who is not properly qualified who represents himself as a qualified industrial hygienist, or represents his testing as being in compliance with state laws is committing fraud and may be prosecuted accordingly. After a Preliminary Assessment has been prepared by the industrial hygienist, the property must be remediated according to the directives of the report.

If the property owner chooses to demolish the property, no Preliminary Assessment is required. After a property is remediated clearance testing must be done by an industrial hygienist who will issue a Decision Statement if the property is found to be safe for entry. The Decision Statement is the document that protects the owner and those involved in the sale of the property from prosecution and liability. No other documentation can be substituted for the Decision Statement. After a property has been identified as a clandestine drug lab it is illegal to remove any property without having it tested by the industrial hygienist. All property is assumed to be contaminated with toxic substances. Without clearance testing of every single item, each item must be disposed of as toxic waste. After they move into their new home, a subsequent buyer or renter of a contaminated property is likely to lose all use of their property until decontaminated or tested and cleared. A buyer has three years to discover meth contamination and sue the seller and associated persons and entities for damages. Loss of health and property and legal fees give these suits the potential for huge damage awards. A contaminated property knowingly rented would also put the owner/manager in a position to be liable for damages regardless of if the property has been identified by law enforcement. Involvement in a meth property is risky financially. Involvement in a meth property that has not been remediated and released to the letter of the law can lead to criminal charges as well as financial penalty. Meth contamination can have serious consequences for inhabitants, particularly children. The penalties of the law reflect the seriousness of the threat to future occupants’ health, financial security and general well-being. Damages can be tremendous and far-reaching. So can the penalties of being involved in a meth property. You can test yourself, or your children for meth that has been ingested from contact with contaminated surfaces. Saliva tests are accurate, easy to use, and private and take only 5 minutes.

Properties affected by meth

Landlords must provide a clean and habitable property. Tenants must not use the rental property for an unlawful purpose. This includes smoking or manufacturing meth. If landlords rent out contaminated properties, they may be breaching their obligations under the Residential Tenancies Act 1986. They may also be breaching other legislation such as the Building Act 2004 and the Health Act 1956.
The Residential Tenancies Amendment Act 2019 allows for regulations to be developed to set out:
• maximum acceptable level for meth contamination
• processes for testing
• decontamination of rental properties.
Until these regulations are developed, landlords and tenants must continue to follow the current information, outlined below.

Residential Tenancies Amendment Act 2019

Using, possessing, selling and manufacturing meth are offences under the Misuse of Drugs Act 1975. Tenants who smoke, sell or manufacture meth in a rental property are using the property for an unlawful purpose. This is a breach of the Residential Tenancies Act. Tenants who cause meth contamination are also breaching their obligation to not intentionally or carelessly damage the property. In most cases, tenants will be found liable for damage from meth contamination caused by a tenant or their guests. The Tenancy Tribunal may order tenants who have used a rental property for an unlawful purpose to pay a penalty of up to $1,000.

Meth testing

On 27 August 2019, landlords can test for meth contamination during a tenancy, but they need to provide the correct notice before entering the property. At the start of a tenancy, landlords may include additional clauses related to meth testing in the tenancy agreement. Any additional clauses must comply with the Residential Tenancies Act.

Is Your Landlord Liable for Your Safety?

As a tenant in an apartment building or rental home, you may not realize that your lease also guarantees you the right to expect a certain level of safety and security. You should be able to go to sleep at night not worrying that a careless landlord has left you at risk for an accident or injury. If you are injured or attacked while living in a rental home, you may be able to pursue a lawsuit against your landlord or apartment complex to help pay for your recovery. For example, if a landlord fails to properly upkeep stairs and you are injured in a fall, or if an employee of the complex attacks or steals from you, your landlord could be found negligent.

Premises Liability Basics

Landlord responsibility falls under the umbrella of premises liability. To a certain degree (and subject to circumstance) whoever owns a property is responsible for injuries that visitors or tenants suffer.
A number of factors are looked at to determine reasonableness when it comes to licensees and invitees:
• Why was the person on the property?
• How were they using the property?
• Was the accident foreseeable?
• Did the owner make reasonable efforts to warn of existing dangers?
Negligence on the part of property owners is often the cause of slip and fall accidents. For example, if your landlord failed to install proper lighting or remove obstacles from a stairway or hallway and you are injured in a fall, it is at least partially the landlord’s fault. Every year, thousands of people sustain injuries ranging from a minor scratch to being crippled in slip and fall accidents. The National Floor Safety Institute found that 50% of all accidental deaths in the home are due to injuries sustained when falling. Injuries from falls account for more than eight million emergency room visits every year. Slip and fall accidents can result in broken bones, spinal trauma and head injuries, leaving you with costly medical bills. According to the National Safety Council, falls in the home most commonly occur in these areas:
• Doorways
• Stairs
• Ramps
• Ladders
• Areas that have uneven surfaces
• Crowded areas
Some of the most commonly treated problems associated with falling include:
• Broken hips and pelvic bones, especially among the elderly
• Broken arms and legs
• Back and spinal cord injuries, which are among the most painful and difficult to recover from
• Head injuries causing permanent brain damage, seizures, memory loss or impaired cognitive functioning
• Neck injuries
• Torn ligaments in the wrist, foot, or leg

Proving fault in a slip & fall injury

Your landlord’s insurance may cover your injuries automatically, or you may need to hire a personal injury attorney to assist with your claim. The law defines specific incidents where an owner or landlord is responsible for a fall that occurs on his or her property. To prove a property owner liable for your injuries, you must present evidence showing that either an employee or the landlord/building owner:
• Was aware of a potential hazard but took no action;
• Should have been aware of a potential hazard because an area posed an obvious risk; or
• Was directly responsible for your injury by creating a dangerous walking surface through spilling liquids, failing to maintain worn or damaged flooring, or other means.
Could you be at fault for your injury?
In order for the property owner or landlord to be found responsible for your fall, you must prove that you are blameless. The law considers all legal adults to be accountable for personal safety in most situations. “Wet floor” sign stories are an example of this, because adults should be able to read and follow such warnings.
In a personal injury claim you will want to:
• Confirm that you were moving conscientiously and not skipping, jumping or being otherwise careless.
• Make sure you exercised due care in observing where you were walking.
• Be certain you were not trespassing or in a restricted area.
If you are certain you could not have avoided the fall, you next need to prove that your landlord/ the property owner could have prevented it. Proving this may work a little differently, depending on whether your injury was a slip and fall or trip and fall.
In cases of tripping, you should ask:
• Was the item I tripped over intended to be there, and should I have been aware of it?
• Did I trip over flooring that was poorly installed or maintained?
• Could the item I tripped over have reasonably been kept in a safer location?
For both trips and slips, ask:
• Should a warning have been posted regarding the potential danger?
• Did the area have sufficient lighting to prevent such accidents?

How A Meth Lab Harms People

If a home has been used as a meth lab, it cannot be lived in until decontaminated. People who unknowingly live in a home that formerly was a meth lab suffer from a number of health issues from the contamination. The toxicity can enter the body by being inhaled or the skin absorbing the materials. Common health complaints by people living near an operating meth lab are headaches, nausea, dizziness and fatigue. Chest pain and lack of coordination also have been reported. In the worst cases respiratory issues, kidney damage, cancer and even death are a risk. Then finally the risk of people being hurt in an explosion is very high.

Utah Hotel Attorney

When you need a Utah Hotel Attorney call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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