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James Joseph Falcone's Answers
- 106 Legal Answers
- 6 Legal Guides
1
Attorney answers:
Legalities of how I can use my LLC? Commercial Real Estate Brokerage California
Unfortunately, you cannot do business which requires a brokers license in California as an LLC- it has to be a corporation. A corporation may be a real estate licensee if it is qualified by an officer who is a licensed broker. A corporate real estate broker can operate only by and through the license of a responsible managing officer; if there is no licensed officer, the corporation cannot perform licensed activities. The corporation must be created, and then the corporation must submit to...
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1
Attorney answers:
Short sale - HAFA Program
Regardless of HAPA, California law now prohibits secured lenders on residential properties from requiring payment from the owner to consent to a short sale, regardless of status of 1st, 2nd, or 3rd. Code of Civil Procedure section 580e (b) states “a holder of a note shall not require the trustor, mortgagor, or maker of the note to pay any additional compensation, aside from the proceeds of the sale, in exchange for the written consent to the sale.” See comments in my blog linked below....
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2
Attorney answers:
I converted my home in California to a rental after living in it 1 year - does the antideficiency statute apply?
Yes; the key is that you bought it with the intent to occupy, and did occupy, the house. As I go into in detail in a Legal Guide (link below), this should satisfy the requirements for a non-recourse loan under California state law concerning anti-deficiency protection for real estate buyers. That does not mean that the protection is automatic; and, if there is a short sale or foreclsure, the lender may misreport that you were personally liable for the debt. Disclaimer The content of...
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1
Attorney answers:
If I get foreclosed on my rental property in California, can BofA (lender of both 1st & 2nd mortgage) sue me for the 2nd loan?
It sounds like you got both the first and second loans when you bought the property (so they were Purchase Money loans) and that you initially lived in the house. In California, if it a purchase money loan for owner-occupied property, you are not liable for the 2nd after foreclosure- it is a non-recourse loan (discussed in my blog post at http://tinyurl.com/ydwlmts). If you got the 2nd loan after you had already bought the property, or if you never did live in the house, then bad news-...
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1
Attorney answers:
Deceased Bank Account with Beneficiary on account
Sorry to hear about your family troubles, they are the worse. As your sibling had the atm card, and the password, the bank would not be liable unless the beneficiary notified the bank of the death, and had the account frozen. Your only recourse is legal action against the sibling (small claims for up to $5000), but you would have to prove they took the money, which may be difficult. If the amount is large, and you file suit, it may be worth it to subpoena the bank’s atm surveillance tapes...
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Attorney answers:
I want to give my house to my niece as a gift. I own my house free and clear. What steps should I take?
The only thing required is to prepare a deed to your niece, and have it notarized and recorded. Once it is recorded, it is her property. However, there may be financial and tax impacts for both of you in granting such a substantial gift. You would be well advised to consult with an estate planning attorney who could review your entire estate and advise you as to your options to avoid surprises. Disclaimer The content of this comment contains general information based on California...
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Attorney answers:
How is the 2nd piece of property affected on a loan when 1st piece of property is in default?
Your question is a bit confusing. If BOTH properties are security for the same mortgage loan, meaning the Deed of Trust describes both properties, then default on one affects both properties. The lender may foreclose on property 1 first, and if it does not raise enough to cover the debt, they foreclose on the second; that’s why both properties were involved. But, you say “one property” has a mortgage on it, which does not make sense if they both were “used to acquire a loan together.” You...
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1
Attorney answers:
After Notice of Trustee Sale, can lender still do loan modification via HAMP?
To apply for a modification under HAMP, you must be the owner-occupant of a one to four unit home; you state that you are not the occupant, so you are technically no longer eligible, unless you can argue a hardship reason for having to move. Regarding the bank trying to discover your assets: If this is a 1st loan against the property which obtained ns as part of the original purchase money financing- meaning that you got this loan when you bought the house- then in California there should...
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1
Attorney answers:
I am a renter and purchasing the home from the owner thru a short sale.
Your contract to buy the property most likely has a date for close of escrow. The seller is not required to close before then. If this is the situation, you are probably out of luck as to the rent. If he prevents closing by the deadline by not signing, he is in breach of the sales contract. As far as the deposit goes, you have the same rights even though you are the buyer. If your rent is paid up you should get the entire deposit back, as you are buying the house subject to whatever...
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2
Attorney answers:
Behind payments of construction loan on my home which never got started building. The consequences of judicial foreclosure?
A lender starts a judicial foreclosure because this allows them to obtain a deficiency judgment after the property is sold. That means you would be personally liable for he balance of the loan. You do have a period of time after the sale when you could redeem the property (buy it back) which is not available in an ordinary trustee’s sale. Given that you borrowed $300k to build a house, and never started construction, the question is where did the money go? Guess what the lender thinks....
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