Skip to main content
David Michael Benson
Avvo
Pro

David Benson’s Answers

360 total


  • My husband has hit me on several occasions and he stop paying the mortgage how can I stay in my home and I have 4 kids

    I've been married for 12 years my husband stop paying the mortgage and its in default I have 4 kids in school right now what legal action can I take to have him give me support

    David’s Answer

    You can stay in the home if you are on the note and mortgage depending on whether he is also on the note and mortgage. If he is, you'll have to see that he cooperates or is ordered to cooperate with your attempts to modify the loan. If he is not on the note and mortgage, you may have him removed, or get him to leave, the house and make sure you have sufficient income yourself to afford a modified payment or can arrange for sufficient contributed income to afford a modified payment. But my colleagues are correct in noting that you have two separate issues here that may require two separate attorneys competent in each of these areas: family law and the regulation of mortgages. Good luck!

    See question 
  • Is an Assignment of Mortgage valid without a promissory note?

    My mortgage was assigned to another company, but they didn't record it until last month (2 years from the assignment) and won't provide me a promissory note. Is the Assignment valid? Do they have to show me the promissory note to prove they have...

    David’s Answer

    This can be a very complicated area and you may have many options in foreclosure. It is important that you get a full analysis of your options and the potential costs associated with each track before responding to the lender or taking up arguments in court. My colleague is correct that you may have separate claims under the regulations that should be investigated by a competent professional. Good luck!

    See question 
  • I need a attorney the attorney I had did me wrong. Can someone give me some legal advice?

    I bought my home in 2000, I live there for 14 years. On March 15, 2014, two people came into my home at 5 o'clock in the morning. I'm handicapped, they slid me out of my bed, into my wheelchair and pushed me out of my home, into my driveway. They ...

    David’s Answer

    Obviously, something precipitated this event. You'll probably have to offer a little more background before any attorney will know exactly what law is implicated and whether it is within the scope of their practice. In the meantime, you can call your county bar association or the nearest Legal Aid Society and see if they can give you a referral. Good luck!

    See question 
  • Hello my grandmother passed and was leaving her house to her daughter but she had a mortgage that is not paid off yet.

    So does her daughter have to get the mortgage in her name or does she have to get her own mortgage? Or can her daughter continue paying off the mortgage her mother had?

    David’s Answer

    Recent changes in regulations may permit your grandmother's surviving heirs to apply for a loan modification under programs that, until recently, would only have been available to your grandmother. But as my colleague notes, that would require a lot more information about, among other things, how the property is held, whether the person now on the deed will be living in the property, who the lender is and what the total gross household income is. So the first thing you should do is find a lawyer who regularly practices in foreclosure mediation and is very familiar with the regulations and programs available. Remember, banks make frequent mistakes when reviewing these applications!

    Good luck.

    See question 
  • Mortgage

    According to (Out of state law firm) via research on mortgage I received a phone call. According to the firm I am suppose to get "anywhere" from 40 to 85% of my principal paid? I was a victim of predatory lending from WAMU (Washington Mutual). ...

    David’s Answer

    It's a red flag to me that they are suggesting amounts of principal forgiveness without running your income and expense numbers first. In our firm, we do a preliminary analysis first to determine where you will end up in terms of monthly payment, interest rate and principal balance. It all depends on who's money was loaned and what programs are available from that particular lender.

    There may also be issues arising from violations of RESPA and TILA, as well as other federal and state laws that could affect the outcome. But you wouldn't know that without first doing some kind of analysis. As my colleagues have suggested, get with a qualified foreclosure attorney with detailed knowledge of federal mortgage regulations before making any decisions. Good luck!

    (BTW, notes don't have to be recorded locally since they aren't interests in property. Your mortgage, however, should be recorded not with the County Auditor, but with the County Recorder.)

    See question 
  • Promissory note is not secure passed from 1 lender to another?

    I have been advised that I have a promissory note and paperwork from my current lender from a bought out one, that the paperwork and promissory note are wrong

    David’s Answer

    Not sure what the question is here. Can you elaborate?

    If you are in foreclosure, the first thing you should do is contact a qualified foreclosure attorney with detailed knowledge of all regulations relating to loan modifications and the programs available to borrowers. Good luck!

    See question 
  • What course of action will I have to pursue to remedy a breach of contract in a real estate investment joint venture I entered?

    Entered into a real estate investment joint venture with a well known and experienced real estate investor in April 2015 to invest in a property. The joint venture was to rehabilitate a property and sell it for a profit. As calculated and annotate...

    David’s Answer

    I agree with my colleagues that you should not sleep on your rights. While you don't want to be unduly reckless or overspend, this is not a time to be timid. Research and interview lawyers to see who is the best fit given your expectations and budget. Then, if you feel comfortable with your decision, pull the trigger. Good luck!

    See question 
  • Can I leave my house for the bank?

    In 2006, I bought a house in Carbondale, Illinois, for $360,000. At present, I own $241,000 on the house to the bank and did not pay my loan (amount of $2,300 per month) for the last three months. This is because I filed a hardship application for...

    David’s Answer

    This is a matter for Illinois counsel. It appears that, under Illinois law, any mortgage lender can get deficiency judgment in foreclosure if they personally serve the complaint on you or you enter an appearance in the case. (See 735 Ill. Comp. Stat. 5/15-1508[e]). Here in Ohio, the only way to escape liability for a deficiency judgment and guard against subsequent collections would be to file for bankruptcy, unless the lender fails to take an action to collect within a 2-year window. Now, FNMA may write off the balance and you would presumably owe nothing. However, if they do, you may nevertheless find yourself with a large tax bill the following year since the forgiven debt may be treated by the taxing authority as income to you. If you can find Illinois counsel with experience in FNMA foreclosures and tax law, you'll likely get a more definitive answer. Good luck!

    See question 
  • Do I have to be in foreclosure for my mother property? Or can I get my name off the deed and let the bank have it?

    I'm on the deed with my brother of my mom house who is deceased . She still has a mortgage on the property. I want to give the property to the bank and cut all ties.

    David’s Answer

    Banks generally want money, not real estate. As a result, they would probably prefer to have the property sold by regular or short sale, or have the sheriff sell the property following a judgment in foreclosure. But there's no harm in contacting the bank to see if they'll take title. However, until someone else takes title, you and your brother are now owners of record and thus are ultimately responsible for the upkeep of the property. So you may want to avoid being hauled into muni court for violating your local ordinances by making sure the grass is cut, etc. Good luck!

    See question 
  • I've been offered a lump sum disbursement of a pension with in 6 months of my Chapter 7 hiring. What should I do

    At the time of my chapter 7 hearing I was unaware that my previous employer was going to offer a lump sum payout of Pensions. My hearing was June 6th 2016 the actual disbursement date of the lump sum if I take it is December 1st 2016. I understa...

    David’s Answer

    If you have filed a Chapter 7 case on your own without an attorney, you should get one now. Your pension should be a qualified retirement account subject to exclusion from your bankruptcy case and it should have been disclosed in your schedules. This is not the appropriate forum for this question since you shouldn't engage in public dialogue on this matter until you have been properly counseled. Good luck!

    See question