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Sandra Margaret Emerson
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Sandra Emerson’s Answers

153 total


  • If delinquent on HOA fees & mortgage is foreclosed, are we personally liable for HOA fees accumulated prior to the sale?

    Servicer filed foreclosure complaint in June '10. We were served by publication in July/Aug '10. We filed appearance in Aug '10 & have yet to receive any notice of anything related to the foreclosure. The court has not issued Judgment for foreclos...

    Sandra’s Answer

    Yes, you would be personally liable for condo assessments and fees because you remain the owner of your condominium until the mortgage holder completes the foreclosure and obtains the deed to your property. Many condominium associations these days are filing suits for unpaid assessments, so you should be sure to pay the assessments.

    This answer is not intended to create an attorney-client relationship.

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  • Should small debt be paid off, for example medical bills and dept. store credit cards, when Chptr 7 bankruptcy is inevitable?

    Is it okay to continue to get medical treatment if needed and pay those bills too?

    Sandra’s Answer

    I agree with the previous answer. Sometimes I find that debtors are under the impression that they will get to keep a department store credit card if they pay off a small balance. However, many times your creditors will find out that you filed for bankruptcy and close the card anyway.

    This answer is general and not intended as specific legal advice or to create an attorney-client relationship.

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  • REAL ESTATE, I RECEIVED 1099A FROM MY FORECLOSURE...

    dO I HAVE TO PAY SOMETING IN TAXES OR DO I HAVE TOGO TO BANKRUPTCY? DO THE GOVERMENT CAN GARNISH MI MONEY? MY APARTMENT WAS LIKE 100' UNDER THE MORTGAGE LOAN. wHAT I CAN DO ?

    Sandra’s Answer

    Are you certain you did not get a 1099-C? That is normally the form that would be sent with regard to cancellation of your mortgage debt. If you did not get a 1099-C, you should first contact the lender.

    Second, do not panic. You should consult with a tax attorney or other qualified tax professional to do your taxes. That person can help you determine whether the canceled debt would be considered income by considering whether you can meet the criteria for certain exclusions relating to canceled debts, such as the insolvency exclusion or qualified principal residence exclusion. Under the latter, if no portion of the loan is unqualified debt and your principal residence indebtedness does not exceed the IRS cap (as of 2009, $2 million, or $1 million if married filing separately), you can generally exclude the canceled indebtedness from income.

    For more info, check out IRS publication 4681. But do seek the assistance of a qualified tax professional. I wish you the best of luck.

    (This answer is intended to be general in nature and not as specific legal advice. It is not intended to create an attorney-client relationship.)

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  • Can we transfer legal ownership of real estate amoung family members w/o using an attorney?

    The condo is debt free in ga. What is required forms, etc.?

    Sandra’s Answer

    Yes, you can. You'd need to prepare and record a quitclaim deed. Still, I recommend using an attorney just to make sure that it's done correctly. I doubt that it would be very expensive, and it would be worth it for your peace of mind.

    (I am an inactive member in good standing of the State Bar of Georgia. This answer is not intended as legal advice, nor is it intended to create an attorney-client relationship.)

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  • Should we foreclose on our home if we are current with our mortgage. We are upside down app 130,000 and are struggling.

    We have tried to work with our lender but have met a lot of resistance. We have been told to just walk-away. Is this good advice?

    Sandra’s Answer

    Certainly this is a very difficult decision. It is also a very fact-specific and personal one, and I believe most lawyers would be hesitant to advise you in an online forum.

    It sounds as if you are inquiring about the possibility of a deficiency judgment if you just walk away. Although in Arizona a lender can obtain a deficiency, Arizona law protects borrowers from deficiencies in many instances. For example, one section of the foreclosure law protects borrowers against deficiency judgments where there is a single or dual-family dwelling on 2 1/2 acres or less where the loan is "purchase money" (i.e., used to pay the purchase price of the property).There are other statutory sections that provide certain deficiency protections as well.

    To make an informed decision, I believe you should consult with an experienced foreclosure attorney in your state for guidance. Good luck to you.

    (I am not licensed in Arizona. This answer is intended as a general discussion and is not meant to be construed as legal advice or to create an attorney-client relationship.)

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  • What steps must a plaintiff take in filling a foreclosure, proof of standing?assignment,what if dates of assignent are after

    of assignment are after filling date? how does the plaintiff prove he holds the original note? What if plaintiff admits he lost the note?

    Sandra’s Answer

    Your questions are too involved for an online answer, and the case law for each state is different. Generally speaking, it appears that Florida judges are open to arguments regarding retroactive assignments (see Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885 (Fla. Dist. Ct. App. 1990) (where mortgage assignment was not made until four months after case was filed, plaintiff did not have standing and was required to file new action).

    Notes are negotiable instruments; their enforceability is governed by the Uniform Commercial Code. I won't go into it here, but the Code provides for such things as "lost note affidavits" that a plaintiff can produce in an attempt to show that the original note was lost or destroyed. If the documentation is genuine, the plaintiff could potentially maintain a foreclosure suit.

    I suggest meeting with a Florida foreclosure attorney as soon as possible to discuss your case. Your state has many fine lawyers who are on the cutting edge of foreclosure litigation; I recommend doing a little research to find one who has succeeded on motions to dismiss for lack of standing.

    (I am not licensed in FL. This answer is not to be construed as specific legal advice for your situation and is not intended to create an attorney-client relationship.)

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  • Mortgage was discharged in Chap 7 bankruptcy w/ no reaffirmation. Been making payments and was temporarily unable pay mortgage

    My question involves a foreclosure in the State of: Washington I was granted a Home Modification in June. The payment went down from about $2500 to about $1500. The next month (July) I filed for BK in July-mortgage was discharged in Oct. I did ...

    Sandra’s Answer

    I agree that a Chapter 13 could help you if the bank decides to accelerate and foreclose. But before you do that, you should definitely try talking to your loan servicer and tell the servicer that you had termporary setback and you'd like to get back on track. The servicer may work with you. Of course, without seeing the modification papers it's hard to say what will happen, but it doesn't hurt to try.

    (Please note that this answer is not intended to create an attorney-client relationship.)

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  • I am trying to figure out if I should file for bankruptcy.

    Last year, I owed Sallie Mae over $56,000. My monthly payments were more than I could afford, so I applied, and was granted, an IBR. I paid this new amount, every month, on time. But the interest is more than I make a year. When the IBR expired, ...

    Sandra’s Answer

    I do not recommend letting a student loan go into default. The government has powerful tools at its disposal to use against defaulting borrowers, such as garnishments and tax refund offsets.

    Student loans are rarely dischargeable in bankruptcy, but bankruptcy can sometimes still help because allows the debtor to discharge other debts. The discharge then frees up room in the budget to make the loan payments. It sounds as if you may be a candidate for Chapter 7, particularly since you have few assets. However, you don't say how much consumer debt you have. If it's very little, bankruptcy may not do much for you.

    I would recommend seeing a bankruptcy attorney in your area for a consultation.

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  • Steps after foreclosing on a property

    I have a vacant condo in illinois, that currently is behind in payments, I am attempting a short sale. In the event that the short-sale does not work, and foreclosure occurs, and the lender seeks a deficiency judgement what are my options? My conc...

    Sandra’s Answer

    I agree with the previous two posters. One more thing that you should know is that even where the lender doesn't seek a deficiency judgment, the fact that there is a potential deficiency out there can negatively affect your credit. Depending on your situation, you may also wish to consider a Chapter 7 if the bank forecloses. As the other posters noted, your 401k would be exempt. And you can potentially keep your other property, both real and personal, if the property is exempt by statute or has no potential to pay creditors if sold. (For example, you may own a couple of investment properties that are underwater or have very little equity.)

    This answer is not intended to create an attorney-client relationship.

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  • I am closing on a short sale due to a divorce pending, how do I successfully negotiate a deficiency amount with my second lender

    The title company attorney is not able to negotiate deficiency amounts. The lender wants a full repay of $30K. I have a special needs child, I don't have the money?

    Sandra’s Answer

    I would suggest getting a real estate attorney to negotiate for you. However, one thing that you should know is that no attorney can guarantee results. The result depends on who holds the second mortgage (some lenders just have a policy of not releasing the lien), as well as your financial situation (to complete a short sale, you have to submit financials to the lender). To release its lien, the lender may require you to sign a note for all or some of the loan amount or bring a lump sum to the closing table.

    (This answer is not intended to create an attorney-client relationship.)

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