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Brandon Kavanagh

Brandon Kavanagh’s Answers

342 total


  • Will I be able to refinance this house or will it require a new loan?

    I have a house where the title is in my name, but another person has a mortgage against the property. I want to eliminate the other person from the equation by paying their bank off via a refinance or a 'new' loan. Since I'm vested in title, can I...

    Brandon’s Answer

    I agree with the other posting attorney. My only question is how the other mortgage came to be on the property. Is this a "wrap" where the prior owner had a mortgage that you took subject to when you took title? If so, was it done with that lender's consent? These questions come up as there may be a "due on sale" clause that would mean that if you start a refinance or new loan process, you may well need to see it all the way through so that you do not face an acceleration by the existing lender once it learns that title is no longer in the name of its borrower.

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  • Can I terminate my lease if I continue to have eye allergies while living in the apartment and nothing is done by management?

    I recently moved into a student housing complex where you are matched with roommates. After moving in my eyes turned red, as well as a sever headache and one of my eyes slowly began visibly swollen. After a few days of still having a headache an...

    Brandon’s Answer

    I agree with the other posting attorney, but there is an intermediate step that needs to be addressed. The landlord needs to be given the opportunity to cure before you try to terminate the lease. You have not identified to the landlord what is causing your allergies, so the response from the manager is not necessarily legally inappropriate even if you may feel it was rude. If the urgent care can identify for you what the problem is, then you need to demand in writing that the landlord fix the problem. Only after there is a failure to cure an identified problem could you seek to terminate the lease. I recommend you work with an attorney. You may want to call the Maricopa County Bar referral service.

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  • 2nd mortgage in deceased spouse name only, I can pay first mortgage but not 2nd will they foreclose

    both loans are with chase bank. The note on the 2nd was signed by my late spouse only. This is before Chase bank took over Washington Mutual. I am about $50,000 under water on the property. I received a loan modification on the first mortgage...

    Brandon’s Answer

    I disagree with the other posting attorneys as your situation is not so absolute. Chase will have the right to foreclose on you on the second if it is unpaid, but you have a number of options at your disposal. First, Chase will have to want to take the property subject to the first mortgage, which may or may not be of interest to them. If they are not very interested, then Chase will be motivated to work with you to restructure the second for you to assume it on certain terms that you can afford. You should make these contacts with Chase after consulting a bankruptcy attorney as your bigger threat to Chase is whether you could file bankruptcy under a restructuring approach and seek a "cramdown" of the second to be only as large as the actual value of the house (i.e. you would eliminate the $50,000 you are underwater). Don't give up yet as you have plenty of negotiating room and options to try to keep the house.

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  • Can I claim sale of second house as a loss?

    Going through a divorce and a court order stated that my wife had exclusive temporary possession of the residence. I have another home that I purchased (last year) that I have been residing in. The house my ex-wife was in possession of was sold an...

    Brandon’s Answer

    I agree that talking to a CPA is one approach, but you also can discuss this with a tax attorney that has some knowledge of divorce proceedings. The way your divorce decree was written may impact how the loss is handled.

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  • How can I keep my rights under a deed of trust I hold for a property when the owners have filed bankruptcy? This is in AZ

    I sold a property and carried a note. The people have filed bankruptcy. I have offered the bankruptcy court to purchase the property back. They have petitioned the court to accept my offer or any higher offer. The offer is subject to my note. ...

    Brandon’s Answer

    You are in an interesting situation here. If you currently have a deed of trust on the property, you have the ability to seek a lifting of the automatic stay that would allow you to foreclose on the note. That would mean that you could be outbid at such an auction, but you could get the property back without "buying it back". It sounds instead like you are agreeing to an auction within the bankruptcy case, instead of outside of it in a foreclosure, where any buyer takes the property subject to your deed of trust and note. So long as the bankruptcy court orders that your lien remains on the property after sale, it will remain. The bankruptcy court has the power to strip your lien from the property as well and sell it free and clear if you are not foreclosing outside of bankruptcy. You need to sit down with a creditor-side bankruptcy attorney to make sure you understand what you are getting involved in so that you can best protect your rights.

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  • We are selling our home due to excessive wood burning in the neighborhood, what are we required to divulge to prospect buyers?

    In the last few years, more and more of our neighbors have begun burning wood in their fireplaces to heat. Most of those who burn create dark plumes of foul smelling smoke, which hangs around our home. We can no longer take walks, or breathe f...

    Brandon’s Answer

    • Selected as best answer

    I agree with the other two attorneys about disclosing through the SPDS. You also must not make any false or misleading statements in person. In other words, if someone asks you directly about the smoke, do not lie or make a misleading statement. You also should look into whether or not you have a nuisance claim against your neighbors as the value of your home in a sale will be decreased if buyers are aware of the smoke issues. Finally, you need to understand that all of the advice given is what you need to do to best defend yourself if a suit is ever brought or to try to reduce the chance of being sued; however, the same answers obviously make it more difficult to sell your house. There is no advice that any of us can give you about how to "avoid" being sued as anyone can sue anyone at anytime, whether you have done everything correctly or not.

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  • 2nd mortgage note signed by deceased spouse only am I still liable if the owner affidavit was not signed by me

    both loans are through chase bank I am not sure I signed any owner affidavate form. If I did not will I still be liable for the loan

    Brandon’s Answer

    You need to discuss with an attorney just what kind of second mortgage note is involved. The issue that I am getting at is that many second mortgages are home equity lines of credit. While you would generally not be liable for a mortgage you did not sign for (except for losing the property as the other attorneys have noted), you also want to make sure that an argument cannot be made that you benefitted from the use of the funds borrowed from a home equity line of credit. That type of liability comes from outside of the terms of the note itself through other legal theories. You need to sit down with a real estate attorney with your documents to get specific advice that applies to your facts.

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  • I have a home in three peoples name me my ex and his mothers name and written in trust. what are my rights to sell ??

    three peoples name on title and written in trust with me and my exs name on home . mother still alive and ex left me with the home and left my three kids with me to do drugs never came back. he remarried and I left the home due to being harassed b...

    Brandon’s Answer

    I agree with the other posting attorneys, but you also need to examine just how the property is held. Are you in a tenants in common or joint tenants with right of survivorship situation? Also, you need to talk to a real estate attorney about whether you have what is called an inchoate lien on the property (which is separate from your ownership) for your funds that you put into the house. There are multiple ways to go about this, including some hard-nosed negotiations once you know your legal position as well as the possibility of a partition lawsuit; however, you should speak to a real estate attorney to decide which is the best course of action.

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  • In a AZ real estate transaction does the buyer ready to close have recourse against a seller who fails to produce a clear title?

    This is a home purchase that the buyers title company found a 150k lien from 7 years ago. The seller is a builder that bought a tear down in 2011 and built a new home. His title company failed to find it when he purchased the property. The bui...

    Brandon’s Answer

    The question about having recourse depends on what you want to have occur. If you want out of the sale, then that would be your method of recourse for a seller unable to provide clear title. If you want to force the sale of the property, then we need to determine whether you can get clear title because of the prior lien. We do not know from your facts what liens the seller has on the property, such as a construction loan lien to build the new house, to determine how much of the purchase price is available to payoff the underlying surprise lien as that would leave the seller dealing with his own title insurer while you take clean title. You need to sit down with a real estate attorney with your contract in hand to see what specific performance rights you have and whether you want to exercise them based upon the specific dollar amounts involved.

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  • What are my options?

    I have paid over $800,000. to the owner of a company that deals in real estate, to purchase a home. I bought this home in January 2013. Recently, the owner of this company was arrested on federal charges for fraud / fraudulent schemes and extorti...

    Brandon’s Answer

    The first thing you should do is sit down with a real estate attorney that has some background in criminal law (or at least the concepts of restitution) or perhaps someone in a firm that has access to another attorney with such a background. You need to coordinate your efforts so that you can maximize the potential of criminal charges for recovery versus a judgment from a civil court. If you can get criminal charges filed based upon your situation (which will require the cooperation of the County Attorney, Attorney General's Office, or possibly the Federal prosecutor's office), you can have more teeth for enforcement of your recovery. You should talk to a real estate attorney first as the facts you have given do not necessarily indicate criminal activity in your situation whether or not other criminal activity occurred. That is not to say that fraud did not occur in your case. You also need to get on this quickly as you do not want restitution for others to get in the way of your possible recovery if you have a claim.

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