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John M McKindles

John McKindles’s Answers

46 total

  • Person A has a promissory note in their estate. The promissory note is secured by real estate.

    The terms of the note are for the money to be paid in monthly amounts to satisfy the terms of an installment sale, to person F, of the above mentioned real estate. The date of the installment sale was June 1, 2005. On August 5, 2009 person A die...

    John’s Answer

    Based upon the information given, I would first review the Will you referenced. If there is no mention of a specific devise of the promissory note to a devisee, then that asset would typically flow through the residuary estate. This is where the language usually says something about "the rest, residue and remainder of the estate shall be distributed to...".
    The personal representative (PR) would likely distribute the interest in the Note to the residuary devisees in the percentages reflected in the Will for them to collect as payments became due.

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  • My Deed of Trust lacks a Legal description in the body , and its not present as an attachment and its also not present

    in the recordings of the county recorder. Any defense against foreclosure or help with short sale? Thanks

    John’s Answer

    When you review your real property on the county recorder's website, does the DOT show up? If so, there is evidently sufficient identifying information in the DOT to align it with your property. More investigation should be done to find out if there may be any additional defects which may impair a foreclosure, but I would not rely upon just your records you were given at Close of Escrow. It is not unusual for the title company to not give you a copy of all pertinent documents at COE, so it is important to check with the county recorder.
    As for a short sale, you would be working with the lender on that, and as soon as you raise the issue of a defective recording, I would imagine that the lender would promptly attempt some correction. I am not confident that you would have more success in obtaining a lender approval simply by virtue of a potential recording defect.
    I would question how the county recorder would be able to connect the DOT to your property without a legal description of some sort.

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  • How can I get out of a house and bills that me and my girlfriend bought together, its not working out we are not compatable?

    My girlfriend and my dad and myself bought a house together and it is not working out between us, we have other bills together and I cant afford to pay all of the bills myself, we can not seem to get along and are very unhappy in our living situat...

    John’s Answer

    There is not quite enough specific information for a specific answer, but if all three of you own the real estate and are indebted on the loan, each of you would have a right to occupy the property and have an obligation to pay the related debt. Your best option would be to achieve a written agreement regarding occupancy and debt payment. This gets complicated these days because many properties are not worth what is owed on them.
    If that is the case you may be able to let the property go into trustee sale with no financial consequences if it qualifies under the antideficiency statute. Again, not enough information was given for a more specific answer. The circumstances sound complex enough that it would benefit you to consult with an attorney for an hour or so in order to get some direction.
    What does appear clear is that the situation is not going to improve unless you do something to change it.

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  • Can one be held liable for HOA fees and city liens (Buckeye, AZ) after foreclosure or deed in lieu?

    We were forced to move out of our primary residence due to hardship, but we continue to pay our HOA fees and city lien. Our foreclosure date is in January. We have been pursuing a “deed in lieu” but a buyer has cropped up here at the last minute...

    John’s Answer

    Regarding your liability for the HOA fees, that liability normally continues to be a personal obligation as long as title of the property is in your name. Once the Trustee Sale takes place and the title changes by trustee's deed, you no longer continue to be personally responsible for those fees under the typical terms of the HOA governing documents. I am unsure what the city liens are to which you refer. The property taxes are county and not personal liabilities.Regarding a "deed-in-lieu", those are extremely rare and have not been in general use for decades. There is little incentive for lenders to accept them and they are often held out to delinquent borrowers (along with short sale processing) as a strategy by lenders to entice borrowers to continue paying.
    I also am unsure what you mean by vacancy insurance. Regarding your question about accepting a short-sale contract, that depends on many factors which are not included here and that really needs a more comprehensive discussion with an attorney. Generally, all your questions and their ramifications can be handled in an hour conference. Your peace of mind and comfort with a course of action would be worth it. A short sale might expose you to liability which a trustee sale could eliminate.

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  • Can I apply rent to agreed upon repairs?

    My landlord contracted with me to implement repairs on the house I am leasing. Landlord agreed to pay 60% of the cost, and I am to pay 40%. Final quotes were accepted and signed by each of us. I have upheld my part, and have received nothing from ...

    John’s Answer

    When you say that your landlord contracted with you to effect repairs on the house you rent, do you have that "contract" in writing? If not, get it before you act on the repairs. If you do have a sufficient writing, follow the terms of it. Although the quotes may have been signed by both of you, that does not automatically designate who pays what. Further, if these are needed repairs, you may be able to require the landlord to pay for those repairs needed in order to make the premises habitable.
    If the landlord has done nothing for 6 weeks, perhaps he is waiting for you to do something. Contact your landlord to clarify that status. Often, such a contact saves grief later.
    Good luck.

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  • We have one month left on our lease. In early Oct we told our landlord we would not be renewing at the end of November.

    We found another place and by October 31 have completely moved out of the other house. We left it spotless and cleaner than when we moved it. We have a security deposit equal to one months' rent. If we don't pay rent for November it'll be breaki...

    John’s Answer

    Technically, and in most residential leases, the security deposit is not rent, but is to be accessed for a variety of lease breaches, including failure to pay rent. In this case, where you have one month left and the deposit is in the same amount as the monthly rent, there is little likelihood that the landlord will pursue you for more money, particularly with you leaving the premises in such good condition. However, the proper way to handle it is to timely pay your rent and demand a return of your deposit after the end of November. That way, if the landlord improperly withholds your deposit or any portion thereof, you may have additional damages against the landlord than you would have had if you simply allowed the deposit to act as a rental payment.
    In any event, I strongly suggest that, while you still have access to the premises, you take many pictures of the condition of the premises at this time, in case the condition is disputed.

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  • AZ law - commercial lease and personal guaranteed.

    My husband is about to sign a 3 yrs commercial lease. They required my signature as a personal guaranteed. They said it's AZ law that I have to sign it. Is it true? Can we get away from it? I have nothing to do with his business, even though ...

    John’s Answer

    • Selected as best answer

    There are a few circumstances in Arizona under which signatures of both spouses are required in order to bind the marital community. Agreements regarding real estate, of which a lease agreement is such an agreement, and guarantee of the debt of another are both such circumstances. Otherwise, the signature of one of the spouses can bind the community.
    The net effect of having both of you sign the lease is to open your community assets, and any separate assets you may have, to liability for payment of the debt. Without both signatures, the landlord would be limited to pursuing your spouse's separate assets, if any. If the lease is in the name of the business, the landlord may also pursue any of the business assets. You certainly do not have to sign, but the landlord may decide not to lease the space without both signatures.

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  • Will my wages be garnished for unpaid rent/lawyer fees?

    in sept i was going to be evicted. i owed a total of almost $900 & was onlya able to paymy rent of $562. we went to court & case was dismissed because landlord accepted partial payment & i did not sign anything saying i would pay remainder. landlo...

    John’s Answer

    Since the judgment has been entered recently, presumably in Justice Court, you might timely appeal it to Superior Court. It does not sound as though an appeal would be successful, however. Your bankruptcy filing in March would not have included your liability for the subsequent judgment, and so the judgment is viable and can be collected against any non-exempt assets you have. It is very likely, with what you have stated, that your wages could be garnished. Unfortunately, your mother may have some liability under the lease, but I doubt that she was included in the eviction action which rendered the money judgment. If she was not included as a party to the eviction (Forcible Entry and Detainer), she would not be liable for the judgment you refer to. The landlord could possibly bring a separate action against her for breach of contract.
    You may have other strategic options which might be explored in a fuller discussion of all the facts. You might consider contacting the landlord to propose a discounted payoff or terms for payment on the judgment, without revealing anything specific about your financial resources. You do not want to give a judgment creditor any information which can be used by him to collect.

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  • I live in AZ and have a prenup. Can my husbands bill collectors attach my wages for my husbands bills?

    My husband is getting ready to file a 3rd bankruptcy as soon as his 8 years is up and he has stopped paying most of his charge cards. Can the companies attach my wages since this is a community property state even though we have a prenup?

    John’s Answer

    If The prenup properly specifies that your respective debts and assets (including income) will remain separate during the marriage and you were not signing on the credit card debt at issue, his creditors would have no claim against your wages, either before or after he files another bankruptcy. Further, once he files bankruptcy, by himself, the bankruptcy estate would include any community assets and community debt. If the prenup was properly drafted, executed and followed, you would continue to retain your assets (and debt) separate and apart from that contained in the bankruptcy estate. This would include all of your separate assets, in addition to your accruing wages.
    Without knowing more about the specific nature of the debts and the status of the assets, it is impossible to give reasonable advice regarding a direction for you. Should any additional facts be revealed, they may well change this analysis. However, it certainly appears that you acted prudently in having a prenup.

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  • I have to move oversea permanently due to a job relocation. If I foreclose my AZ home, will HOA be able to garnish my wage?

    If I walk away or foreclose my primary residence in Arizona, will HOA and Property tax be able to garnish my oversea wage and freeze my US savings account? If I can't afford homeowner's insurance after I foreclose and the house get vandalize or s...

    John’s Answer

    Your job relocation really does not impact the legal consequences of a trustee sale of your real property. Whether the lender(s) can sue you for a deficiency depends upon whether or not you can qualify under one of Arizona's 2 anti-deficiency statutes. You are not likely to have a personal obligation to continue to pay real property taxes, but you will likely have a personal obligation to pay HOA dues and assessments as long as title of the real property is in your name. Title would change upon completion of a trustee sale.
    Whether or not you qualify for protection under one of Arizona's anti-deficiency statutes requires a fact intensive analysis which cannot be done adequately in this site. It would behoove you to pay for an hour's consultation with a real estate attorney in order to get a comfort level with a direction. Also, you should discuss the potential for an IRS assessment of taxes on any deficiency as a forgiveness of debt.
    By the way, as long as you are current on your payments, unfortunately, do not expect to have your calls to the bank returned.
    Finally, I would not suggest that you mail the keys to the lender. As long as you have any liability for the house, you should retain access to it.
    I realize that not all of your questions were answered, but to do so would require more facts and a much more detailed discussion than possible at this site.

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