Skip to main content
Sergio Cabanas
Avvo
Pro

Sergio Cabanas’s Answers

335 total


  • Once the title is transferred at a foreclosure sale, can the new title holder cut off the electricity and water at the home?

    Home is occupied by home owner that lost title. Thank You in advance but if you could possibly answer my question in two settings, it would be helpful. The first setting is the transfer of title takes place but there is not yet a writ of possessio...

    Sergio’s Answer

    This is an interesting, more difficult question for me. While it's true that there are laws protecting against the so-called "self-help eviction." I've only seen such laws in a Landlord-tenant context. In a foreclosure action, the judgement usually states that the plaintiff is entitled to immediate possession (but proper practice still requires a motion for such a writ). However, does a new buyer at a foreclosure auction have the obligation to turn on the utlities and pay for them for the benefit of the previous owner? I would have to research this question to be sure, and I welcome any comments from colleagues who already have researched this issue.

    See question 
  • Wage Garnishment?

    I received in the mail a "Subpoena Duces Tecum Without Deposition." It is directed to my credit card company. It is asking them to submit my recent credit application, bank info and contact info to Plaintiffs attorney. The judgment was ...

    Sergio’s Answer

    You may have a strong basis to eliminate (i.e., "vacate") the judgment against you, if you have never been served. Depending on the outcome of this analysis, you can develop other strategies, whether it's a settlement efforts, defending against collections and/or bankruptcy. Again, I agree with my colleagues that such a project involves sophisticated work that should be done by an attorney. Many attorneys that practice in this area, such as myself, offer a free consultation. I hope it all works out for you.

    See question 
  • My sons house was forclosed 5-6 years ago. Can I add him to my deed without danger of being responsible for his debt?

    I'm afraid they would take my house if it's in his name and his debt has never been satisfied.

    Sergio’s Answer

    If the purpose of your question stems from the fact that you would like to start making arrangements for "estate planning," to ensure your children take control/ownership of your belongings in the event you become disabled or pass away, you should consult with an "estate planning" attorney. Such attorneys often provide a free consultation. We would discuss your objectives and find legal ways to achieve them without risking the loss to possible creditors who now exist (or may exist in the future).

    See question 
  • If the tenants are not noticed in a foreclosure action, is that enough ground to vacate the sale?.

    I own a rental income property that was sold two weeks ago and it is also my homestead. The tenant was never noticed when the foreclosure was filed nor during the foreclosure process.

    Sergio’s Answer

    Yes, I've won this issue before, but the argument must come from the tenants who occupied the property at the time the foreclosure action was filed. I strongly suggest that an attorney handle the matter as it's complicated and must have the case law ready for the judge.

    See question 
  • Single vs. Married on on house title when one has a judgment.

    We are purchasing a new home and I applied for the mortgage in my name only since Husband has a CC judgment and no reportable income. In order to protect the home from a lien (even if its not enforceable), would it wise to put the title in my name...

    Sergio’s Answer

    Based on your question, we have three layers of analysis: (1) whether your spouse's debt issues can be resolved in some way, whether by litigation, settlement, and/or bankruptcy. I agree that you are already engaging in heroic efforts that are now affecting and complicating your life, when the debts problems can be resolved, freeing you from these constant worries. (2) Assuming the debt issues cannot be resolved, we should consider taking "asset protection" measures (inclusing properly evaluating the applicability of homestead protection), meaning meeting with an attorney who can evaluate the holding of assets in a manner that minimizes your exposure to your spouse's creditors in a legal manner so as to not violate any "fraudulent transfer" laws. (3) Of course, your question was also concerned about "estate planning," where the assets held by your family can be transferred to beneficiaries upon death or disability without being subject to creditor's claims. There are lawyers like me that can help you through all of these categories of concern through a free initial consultation, but I want to make sure we don't overlook the obvious and easiest (and cheapest) solution, which may be addressing the debt issues.

    See question 
  • If the final settlement ordered on a foreclosure by the judge is eg.$140.000 can that about be changed.

    i lost my home the final judgement was for $140 000.00. the owner claims i owe, $150 000 because he had expenses after the judgement that of $10 000.00 more. i have paid back $66000.00 plus the value of the house which was set by the court a...

    Sergio’s Answer

    I'm also baffled by your case as I need more information. The amounts are extremely high, and the situaiton is very serious. You may be overpaying on something that can be resolved for much less, or you may not be liable at all. There are many unanswered questions in your case that goes beyond the scope of this simple question-answer forum. I agree you should consult with an attorney who can review the specifics of your case and provide you with a proper evaluation. Most of us provide a free initial consultation. I'm sorry to hear about your situation. Remember to stay strong as everything will work out. Just get the proper help.

    See question 
  • When a individual bank account is inadvertently commingled, will the judgment creditor go after everything?

    When a individual bank account is inadvertently commingled, will the judgment creditor go after everything in the account or only the specific amount that would have been considered the debtor's portion? Specifically speaking, we had a tax retu...

    Sergio’s Answer

    If the account was set up as a joint, spousal account from the outset (which makes it a "tenancy by the entireties" account) and you are not liable for the debt, you could defend against the creditor's taking it (i.e., the garnishment). If the account belongs to your spouse, the entire account is subject to garnishment, leaving you in the uncomortable position of trying to prove the funds were partially yours. This is an expensive, difficult, and risky route. I congratulate you for taking the first step in recognizing this is a potential problem and communicating with us (attorneys), so start taking measures to protect these funds, including meeting an attorney who can review your spouse's finanacial situation and find legal remedies in order to avoid problems in the future. As the saying goes, "This ounce of prevention is worth more than the pound of cure." I hope it all works out for you. Good luck!

    See question 
  • Collection agency is harassing me at work. Can they do this?

    I had a "process server" call me at work and tell me that he had papers to serve me from a collection agency. He told me the agency hired him to serve me at work, but that he would hold off if I wanted him to. He gave me the information of the age...

    Sergio’s Answer

    If the debt collector is calling you at work after you told him not to do so, and is falsely representing himself as a process server, this can be considered a violation of several federal laws. On the other hand, it may be an actual process server, who is allowed to attempt service upon you at work. A good place to start is by checking court records to see if a lawsuit was filed against you.

    See question 
  • After a foreclosure sale, can any party in the lawsuit motion for a writ of possession or does it have to be the title holder?

    There is one party, a defendant in my foreclosure lawsuit that has been pushing like the sky is falling to get my out of my house ASAP and it isn't the Plaintiff (Mortgage Holder). I received a foreclosure judgment against me by the Mortgage Holde...

    Sergio’s Answer

    First, I'm sorry to hear of your problems, and I hope everyhting works out for you. Just remember to stay strong. To me, your question was not completely clear. It can be intepreted that a "defendant" is a person who may have made a deal with the bank to purchase the note, or that "defendant" could have been the Association, who sometimes get involved in expediting foreclosures. It would be helpful for me to have this point clarified in order to provide any suggestions/answers.

    See question 
  • Does the homeowner typically needs to be notified when a motion for a writ of possession is going to be file with the judge?

    I purchased a property at the foreclosure auction. I do have the certificate of title. The homeowners are still in the property. They have said to me they are going to be moving out in a couple of weeks. My question is if I decide to file a motio...

    Sergio’s Answer

    The procedure must be followed correctly, and seeing how your question is worded with regard to the motion, concerns me. If not done properly, the homeowners can (and will) continue to reside in the property until it's done right, which will cost you as it continues to deprive you of possession. You should consult an attorney who can file the appropriate paperwork and go through the procedure correctly so you obtain the writ as soon as possible.

    See question