Marc D McCain's Answers

AZ deficiency law and HELOCs

THIS ANSWER DOES NOT CONSTITUTE LEGAL ADVICE OR FORM AN ATTORNEY-CLIENT RELATIONSHIP. With all respect to Ms. Galant, you need Arizona counsel on this matter since Arizona's anti-deficiency laws are very fact specific. There is no Arizona case on point but the general rule is that a loan is purchase money if it is funded to pay all or a portion of the purchase price. Also, a refinance does not change the nature of the loan being refinanced (i.e. if it was purchase money initially, it will...

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AZ Investment Property Possible Foreclosure

You have several options, none of them are all that good however. I am hearing that many lenders aren't working with borrowers until they fall behind on their payments, but you can continue to check and also stay apprised of any state or federal assistance plans. If you miss payments, this will affect your credit. if you fall behind enough, the lender can start foreclosure. you can attemp to sell the property via a short sale, but you'd usually need to get the property listed, find a...

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Arizona contract law, enforceability of a verbal agreement

Verbal agreements are generally enforceable unless the subject matter of the contract falls within the statute of frauds thereby requiring the contract to be in writing. In Arizona, any agreement that falls under the statute of frauds (ARS Section 44-101) must be in writing. These agreements include, but are not limited to, agreements of guaranty or suretyship, an agreement which is not to be performed within 1 year from the making thereof and agreements for the sale of real property....

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If I foreclose on my home in arizona can the lender sue for money lost and will I have to pay taxes on the difference?

THIS ANSWER DOES NOT CONSTITUTE LEGAL ADVICE OR FORM AN ATTORNEY-CLIENT RELATIONSHIP. Whether or not you will be subject to any deficiency following a foreclosure depends on the facts related to the loan. Assuming Arizona law applies (check your promissory note and other loan documents), and assuming that your home is a single family home (condos and townhouses are included) on 2.5 acres or less that is used as a dwelling, when your first lender sells the home at trustee’s sale, Arizona’s...

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Is it better to enter into a short sale or allow the property to be foreclosed

Arizona is what is generally referred to as an anti-deficiency state when referring to foreclosure of residential mortgages. Two statutes apply and the outcome can vary depending on the circumstances. However, as a general rule, if you own a typical residential dwelling and got a loan to buy your home, if the 1st lender forecloses on the loan, you won’t be liable for any deficiency if the sale price doesn’t satisfy your lender’s debt. however, a HELOC that is not a purchase money loan that...

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Renting but house going through Foreclosure and possible short sale

In general, a sale of a home is subject to existing liens and your lease constitutes a lien against the property. So, a buyer of a short sale home takes the home subject to the lease and your rights under the Lease, unless your lease provides otherwise. Nothing in this answer is intended as legal advice and no attorney-client relationship exists unless the author enters into a signed fee agreement with a client. Every borrower and owner should consult independent legal counsel to review...

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Do I have to file bankruptcy if I my home goes into foreclosure?

THIS ANSWER DOES NOT CONSTITUTE LEGAL ADVICE OR FORM AN ATTORNEY-CLIENT RELATIONSHIP. Whether or not you will be subject to any deficiency following a foreclosure depends on the facts related to the 2 loans. Assuming Arizona law applies (check your promissory note and other loan documents), and assuming that your home is a single family home (condos and townhouses are included) on 2.5 acres or less that is used as a dwelling, when your first lender sells the home at trustee’s sale, Arizona’...

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I didn't have insurance when I got into a car accident will I have to pay for other party's damages out of pocket

If you were negligent (at fault) and caused injury to another party in an auto accident, then you are liable in Arizona for the injured person's damages. If you had car insurance, this would cover the damages up to the amount of insurance coverage. If you didn't have insurance, then your personal assets are at risk. However, a "bill" doesn't obligate you to pay anything. If you got a demand to pay, I would inform the person that you don't have insurance or any appreciable assets. If...

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Can the bank come after me (my assets such as my savings,cars and business) after the foreclosure of my condo?

The answer is that it depends. Assuming Arizona law applies to your loan, if the lender forecloses via trustee's sale, the general answer is no, Arizona's anti-deficiency law would apply and you would not have liability for the unpaid balance of the loan following the foreclosure. If the loan is a purchase money loan under Arizona law, then a lender does not have the option of waiving its security under the deed of trust and suing you on the note. Where these rules apply, a lender's only...

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Short sale to relative

THIS ANSWER DOES NOT CONSTITUTE LEGAL ADVICE AND DOES NOT FORM AN ATTORNEY-CLIENT RELATIONSHIP. You raise an interesting scenario. My thought without researching the issue is that if the lender will approve the short sale to you, you will then own the home and be free to do with it what you wish. However, I would be concerned about this scenario giving rise to some type of fraudulent scheme claim if you have no intent on buying the home to use or as an investment, but for the purpose of...

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