Skip to main content
William Julian Smith
Avvo
Pro

William Smith’s Answers

61 total


  • In lieu of foreclosing the lien, is a Quit Claim a viable option for an HOA?

    A property owner owns a lot (no home) free and clear but owes several thousand dollars in unpaid dues. Instead of the HOA filing small claims or foreclosing, could the owner quit claim the property to the Association?

    William’s Answer

    I agree with what Glean and Randall said.

    Just FYI though: if the amount owed is more than the property's worth, the HOA could still come after you for the balance of the indebtedness (total amount outstanding - FMV of the lot). See if you can get the HOA to agree to accept the quitclaim deed as a full accord and satisfaction of the entire indebtedness. Hiring an attorney to do a bit of saber-rattling for you might get the HOA to agree to such terms (depending on how much you actually owe).

    See question 
  • I was defrauded by a car dealership, they have my down payment and my car. what rights to i have?

    this was my first time buying a car. and don't fully understand the process. i bought a car but changed my mind because i knew i couldn't afford it. after several attempts the dealership finally took the car back and assured me that they would f...

    William’s Answer

    A lot would depend on the language of the contract and the mutual understanding that you reached with the dealership, but generally speaking, their agreement to take the car back from you would be perceived as an agreement to rescind the contract (unless the agreement was to only take the car back for the explicit purpose of replacing it with another car). Assuming the dealership agreed to rescind the contract and the downpayment was not non-refundable, you should be able to get your money back. You'd probably have a basic claim for money had and received, and you could have a claim under OCGA 51-10-6 if you could prove intent to convert your money. Again, a lot depends on the facts.

    See question 
  • Can a property management company legally have a foreclosure action taken for non payment of HOA dues?

    HOA dues are due January 1st and March 1st every year. In the past a late fee is added if payment is not received by January 31st and March 31st. Now the new company is threatening legal action in the form of foreclosure, judgment default, lien ...

    William’s Answer

    Yes. The HOA can file a lien and then file an action to foreclose the lien. Once it gets a judgment in the foreclosure action it can levy on the judgment. It almost certainly can't non-judicially foreclose, but it can file a lien and judicially foreclose that lien.
    Unless you have some kind of legal justification for not paying you should probably pay asap.

    See question 
  • Deceased mother had reverse mortgage. told them 6 months ago to go ahead with foreclosure. now they want me to do a deed in

    lieu. should I or let them foreclose. I am only child and do not want the house.

    William’s Answer

    If this is a HECM reverse mortgage under HUD (which I'm guessing it is), then the loan is non-recourse, which means neither the lender nor HUD can come after you or your mom's estate for a deficiency after foreclosure, so foreclosure won't necessarily hurt you.
    That said, assuming you're the sole devisee or heir, you have the right to either sell the home yourself or buy it back (through a buyout or a refi) for the lesser of the balance on the loan or 95% of the current appraised value. If you can sell the home for more than the greater of those two figures, then you might be able to walk with some cash.
    The lender was supposed to conduct an appraisal within 30 days of your mom's death. Did this happen?

    See question 
  • Is the bank at fault and will i be compensated

    I owned property, had a balloon note on the property with a bank,when the balloon note matured i went into the bank to refinance the loan,at that time i was told the bank could not refinance the loan due to the misplacement of the title, at that t...

    William’s Answer

    By "title", do you mean title policy or legal title (i.e., the security deed and warranty deed)? A copy of the warranty deed and the security deed should have been recorded in the real estate records, so I don't see "misplacement" of those deeds as being a legitimate reason to not refinance.

    A bank normally doesn't have an obligation to refinance (though if your note was owned by Fannie Mae or Freddie Mac and the bank was just a servicer, you may have had a conditional right to refinance). However, it's also true that a bank cannot engage in deceptive practices in an effort to prevent you from pursuing refinancing options. It sounds like there may be either a fraudulent or a negligent misrepresentation issue there. If you had a conditional right to refinance, there could also be a breach of contract issue.

    Feel free to call me to discuss.

    William J. Smith
    SMITH LAW, LLC
    Office Address:
    1755 North Brown Road, Suite 200
    Lawrenceville, Georgia 30043
    Mailing Address:
    P.O. Box 1396
    Dacula, GA 30019
    T: 678.690.5299; 770.674.1683 (direct)
    F: 770.674.1122
    E: william@smithlaw-llc.com
    www.smithlaw-llc.com

    Business. Consumer Protection. Employment. False Claims. Landlord-Tenant. Wrongful Foreclosure.

    NOTICE: In the absence of an engagement agreement or contract of representation, no information contained in this email constitutes an undertaking of representation or an expression of a binding legal opinion.
    ___________________________________
    CONFIDENTIALITY NOTICE: The information contained in this message and all attachments is privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient, any review, use, distribution, copying or forwarding of this message is strictly prohibited. If you have received this message in error, immediately notify the sender by reply email and delete the original and all copies of the message.

    See question 
  • I purchased a property at auction, the foreclosed on person states she is still in litigation with the bank on her foreclosure.

    her next hearing is in 2 months, do i have to wait to take over ownership of the property and will I possible be out of luck if she wins in court against the bank?

    William’s Answer

    Good posts by the other lawyers. Before you do anything, find out whether the former owner filed a lis pendens prior to the time that you purchased at auction. Bear in mind that I practice in GA, not CA.

    See question 
  • My home was foreclosed. Before I could get all my property out the locks were changed. What happens to the remainder of it?

    What happens to the remainder of my property?

    William’s Answer

    If the foreclosure sale purchaser did not file a dispossessory action against you and did not obtain a judgment and a writ of possession, then this was an illegal eviction for which you can recover damages. Given that the eviction is illegal (assuming the evictor does not have a writ), your property is not abandoned and you can recover (i) your personal property, or (ii) money for any harm done to your personal property, and possibly (iii) money for the temporary loss of use of your personal property.

    Lenders in this state think this is Russia, don't they?

    William J. Smith
    SMITH LAW, LLC
    P.O. Box 1396
    Dacula, GA 30019
    Office: 678.691.5676
    Direct: 770.674.1683
    Fax: 770.674.1122
    Email: william@smithlaw-llc.com

    Business. Consumer Protection. Employment. False Claims. Landlord-Tenant. Wrongful Foreclosure.

    See question 
  • My tenant is trying to break his lease because he says repairs to the property have not been made.

    I hired a contractor who said he completed all the work. He sent me photos that showed he had finished the work. Tenant says he is not happy with the property, claims the mold in the property came back and there are loose wires places that contra...

    William’s Answer

    I'd have to do more research to determine whether there's a exception for residential leases with shorter than a 5 year term, but generally speaking, all of the Title 13 (Contract) remedies apply to residential leases. Thus you'd presumably be entitled to damages naturally arising from the breach, i.e. future rent. However, you do have a duty to mitigate your damages.

    As was stated before, in all likelihood the tenant cannot break the lease unless the place is uninhabitable. You have a duty to make reasonable repairs -- not repairs to suit a tenant's fancy. If you fail to make reasonable repairs, the tenant has remedies against you. If the repairs the tenant is asking for are not reasonable, you have no duty to make those repairs.

    See question 
  • How can i buy a house from a friend who nolonger wants to own the property he is in a situation with the bank!

    his mortgage is one of the bad deals countrywide had but now bank of america owns the loan they wont forclose on him even though he hasent lived in the home for three years the property is just deteriorating by the day i would like to purchas the ...

    William’s Answer

    Generally I agree with what the others have said, but I do think you have some options. For starters, if he's been out for 3 years and the bank still hasn't foreclosed, then they probably wouldn't foreclose no matter what you all did (unless you moved in and turned the place into a palace). That said, these options are given assuming the bank isn't likely to foreclose.

    First, you could rent it from him for $1/month. You wouldn't be protected from foreclosure by the Protecting Tenants After Foreclosure Act because it wouldn't be a bona fide lease, but that would prevent the triggering of a due-on-sale clause.

    Second, you could rent from him at fair market value. Under that circumstance you'd be protected for the full term of the lease unless the bank sold to a 3rd party or a 3rd party purchased at foreclosure (and 3rd party was going to live there). The Protecting Tenants Act several exceptions so read it first.

    Third, you could try the quitclaim route you mentioned. It's true that this may trigger a foreclosure, but your friend has committed so many acts of default as it is (including abandoning the property) that the bank could have easily foreclosed by now if they really wanted to.

    Fourth, if you can pay the mortgage and don't want to have to worry about a foreclosure, you could offer to assume the loan. If the house is as underwater as you let on, they'd probably forgive the accrued interest, write down the principle balance, and maybe even lower the interest rate. I HIGHLY DOUBT they will say 'no' to an assumption in this situation (assuming you have decent credit).

    --
    William J. Smith
    SMITH LAW, LLC
    P.O. Box 468328
    Atlanta, GA 31146
    T: 678.691.5676
    F: 770.674.1122
    E: bjsmith3414@gmail.com

    Business. Consumer Protection. Employment. False Claims. Landlord-Tenant. Wrongful Foreclosure.

    See question 
  • Can a bank reposess additional security prior to any foreclosure proceedings? With no due process?

    They repossed a truck prior to foreclosure proceedings. The original note was for $91,000 which has now been paid down to $71,000 in which the real estate holds its own value according to appraisal.

    William’s Answer

    Assuming the note was secured by your truck and your house, and assuming they followed the Article 9 provisions, then yes they were allowed to repo the truck. The key is whether they followed the Article 9 provisions, i.e. if the security instrument doesn't reasonably describe the truck, there's no attachment and they cannot repo the truck.

    So as others have stated, it mainly depends on what your documents say.

    --
    William J. Smith
    SMITH LAW, LLC
    P.O. Box 468328
    Atlanta, GA 31146
    T: 678.691.5676
    F: 770.674.1122
    E: bjsmith3414@gmail.com

    Business. Consumer Protection. Employment. False Claims. Landlord-Tenant. Wrongful Foreclosure.

    See question