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John M McKindles

John McKindles’s Answers

46 total

  • Can lender impose deficiency judgment on Single Family Income property in Arizona.

    I could not sell my single family residence and decided to rent the property. I later refied for a better rate as income property. I understand that they do not persue on owner occupied properties but can the persue a deficiency judgment in this s...

    John’s Answer

    The Arizona anti-deficiency statutes apply to both owner-occupied and investment residential properties. If you qualify under the statutory criteria, it does not matter whether the dwelling was owner-occupied or an envestment property. Other critical factors may apply, such as whether the loan was a purchase money security interest or if you carry a second or HELOC (home equity line of credit).
    But to answer your particular question, the fact that the dwelling is an investment property would not, by itself, disqualify it from being subject to one of our anti-deficiency statutes.
    Good luck.

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  • My home is in foreclosure. Auction date is Sept1. Should we leave for a rental before the 1st and are we liable for any repairs?

    We have 2 contract short sale offers pending but still awaiting to hear from lender. Legally am I still responsible fr utilities repair, etc.?

    John’s Answer

    Since you have short sale contracts being processed by the lender, it is probable, but not certain, that the Trustee Sale scheduled for Sept. 1 will be postponed. However, sometimes you might be advised by the lender that the sale will be postponed and the lender proceeds with the trustee sale anyway. Very unpredictable how lenders may act these days, and it is sometimes a case of one hand not knowing what the other is doing.
    Generally, you will not be personally liable for not making repairs to the property, unless the lender can prove that damage to the property was intentional.
    I am surprised that you have more than 1 short sale contract being reviewed by the lender, since typically only one contract is processed at a time. You may have back-up offers which would kick in if the original contract is terminated for any reason.
    Utilities are usually in your personal name, so you would have a continuing liability for the payment of those bills until you terminate the service.
    In any event, I would strongly urge you to have plan B--a rental to move into--as an option ready to exercise by Sept. 1.
    Good luck.

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  • I have a beneficiary deed to my mom's house. It has a loan balance on it. Can I sell the house without going to probate?

    The beneficiary deed has been recorded prior to her death and I have recorded the certified death certificate to the deed. The mortgage company is requesting I open probate to be her personal representative to her estate. Is this so they can for...

    John’s Answer

    The short answer is that, assuming that the beneficiary deed was properly completed and recorded, the recording of the death certificate terminates your mother's interest in the property in favor of you, assuming you were the only beneficiary listed. This means that you have authority to sell the house without going through probate.
    There will be some complications dealing with the mortgage company yourself, since they will be unable to give you any information on the loan. They should accept monthly payments from you with payment coupons, so you can actually market the property without falling behind. If you do get a buyer and open escrow, the escrow company can generally obtain a payoff figure in order to close escrow. It would obviously need to be a new loan/cash sale.
    The loan company is right that you cannot assume the loan or even obtain information about it without opening probate. The lender would also likely require you to apply for a new loan under those circumstances. In any event, the loan will need to be paid.
    Good luck.

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  • If my home goes into foreclosure am i still responsible for HOA?

    My home goes into foreclosure the 28 of this month, am i still reliable for HOA

    John’s Answer

    As a supplement to the previous answer, I must advise you that your liability for payment of HOA fees and assessments is a personal liability, unlike some home financing or real estate taxes. This liability continues until you lose title ownership to the property, which typically takes place when the Trustee Sale takes place. It has been my experience that some HOA property management companies are pursuing individuals in court for payment of these costs, so I would not recommend that you simply ignore these fees. Depending on your circumstances, I might suggest that you attempt to negotiate a resolution with the property management company on any amount due.
    After the home title is transferred by Trustee Deed, you have no personal obligation for continuing HOA fees and assessments.

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  • Am I required to pay for a garage door repair to a rental house for my tenant?

    The automatic garage door was working fine for the past year(+) that they have rented this home. "Somehow", the garage door came off the track and they tried to fix it themselves, but now it's completely a mess. They want me to pay for the repai...

    John’s Answer

    Arizona statutes require you to provide safe and habitable premises, which may not include a garage door, depending upon the configuration of the unit. However, the lease likely contains some reference to the garage and the issue boils down to how the lease terms address this issue, if at all.
    My suggestion is to get a garage door repairman out to take a look at it and pay to get it fixed as soon as practicable, and deal with the responsibility for the cost later. Ask the repairman if he can isolate the potential cause of the damage and put it into the repair estimate/receipt.
    After this, attempt to negotiate some resolution with your tenant for a split of the cost if the cause of the damage is unclear. You do not have to provide a new garage door if the old one can be repaired.
    Ultimately, you may be able to deduct at least a portion of the cost from the tenant's security deposit. However, I would first attempt to work out an agreeable resolution and keep your tenant happy. The repair cost is probably not going to be as much as one month's rent.
    Good luck.

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  • Divorce - I live in az she lives in fl - I received an inheritance does she get 1/2

    I have lived in AZ for 3 years now and filed divorce in that time but she was never served so the court kicked it out. I am now about to file again and have her served but I'm worried about her being able to get 1/2 my inheritance. Because AZ is...

    John’s Answer

    If you file in Arizona and get her served wherever before she files and serves you, Az should have jurisdiction to grant the divorce since you have established residency. However, that could be complicated if, for example, there are children and, if so, where they live, etc.
    In AZ, your inheritance would be considered your separate property, as long as it has not been commingled with community property or converted into community property, such as placing inherited funds into a joint account from which it may be difficult to segregate the funds, or if inherited real property has been conveyed into the community (both parties' names).
    Other complicating conditions may be present and impact this overview, so it would pay for you to consult with an attorney for specific advice after a review of all pertinent facts.
    Good luck.

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  • I have 1st & 2nd loan on my primary residence in Arizona. If I walkaway can either mortgage company come after me on deficency?

    In 2005 I went through a divorce and had to refinance my home and put in my name only and give my ex half the equity. I also in 2006 got a heloc. I am currently late on both loans (June 2011), am concerned that mortgage companies can come after me...

    John’s Answer

    • Selected as best answer

    More specifics would be needed to give a complete answer, but some parameters might help you.
    Arizona has 2 anti-deficiency statutes. One I call the purchase money security interest (PMSI) statute and the other I call the trustee sale statute. In your circumstances, your first (refinanced) mortgage (DOT) which was refinanced will likely proceed to trustee sale and you should have no personal liability for a deficiency thereafter. The HELOC is more problematic, as there is likely no equity in the property to attract that lender to foreclose on it and that loan is not PMSI. Consequently, you do not appear to have any protection against collection of a deficiency, or the balance of what is owed to that creditor.
    Before you continue to allow your payments to get much further in arrears, consult an attorney to discuss your specific circumstances.

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  • Community property with rights of survivorship ?

    Can this document only be executed between spouses or can they be executed with anyone (friend, sibling, parent, etc) ?

    John’s Answer

    Christopher's answer is correct. I wanted to amplify a bit on the nature and effect of holding real property with right of survivorship, and joint tenancy, for your planning purposes.
    By holding such property "with right of survivorship", when one of the joint owners dies, that deceased owner's interest terminates in favor of the remaining joint tenant(s). All that would be required would be to record a certified copy of the certificate of death with the county recorder where the property lies and the deceased's interest automatically terminates. This is true whether held as "community property" or "joint tenants". Carefully consider whether to title property jointly, since any owner of the property so held could poossibly force a sale of the property and be allocated that pro rata share of the sale net proceeds. It is easy to convey property into joint tenancy, not so easy to convert it back if any joint tenant refuses to cooperate.
    Hope this helps.

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  • I am a Canadian, who owns property in the USA. (winter home). The title is in joint tenancy with my spouse. If one of us passes,

    Does the property transfer seamlesy to the survivor,.will there be any tax involved? We also own our permanent residence in Canada.

    John’s Answer

    Adding to Mr. Lazar's fine answer, I would recommend that you promptly record a certified copy of your spouse's death certificate with the county recorder in Maricopa County, assuming that the property is located there. Otherwise, record the certified copy with the county recorder of the county where the property lies. You might as well do it now in order to start the time for constructive notice to any interested party of the current status. Plus, it will avoid any delay if/when you want to do something with the property in the future. When you record the certified copy of the death certificate, be sure to attach a cover sheet upon which the recording information is to be stamped. The cover sheet is required to have a blank portion in the upper right for the use of the county recorder. On the left upper portion, put your name and address for the return of the original documents. If you do this by mail, include a stamped, self-addressed envelope for the recorder's use in returning the documents. This will save you an additional dollar in costs.

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  • Can I sue an apartment complex?

    I lived at this complex and moved out after my lease was up like normal. Now, I got a letter in my new address charching over $1000 in cleaning fees and carpet replacement. **the main issue is that when I lived there there was a huge flood from wa...

    John’s Answer

    At this point, your best course of action would include gathering any documentation you can which evidences the flooding that took place which caused the damage the complex is now attributing to you. Did you have an exit inspection? Did you take pictures of the damage when it occurred? Do you have contact information on any other tenants who would be aware of the flooding?
    Also, be sure to respond to the demand letter by denying your liability in writing. If you can, send copies of any documents as above described, including any pictures. You want to nip any potential action in the bud before any attorney fees are incurred.
    You mentioned "we", so I suspect that someone else was living with you at the complex. Have your roommate do the same and both of you challenge the liability.
    Better 2 witnesses than one.
    Good luck.

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