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James R. Andrews II

James Andrews’s Answers

107 total

  • What are the laws of walking away from your house these days in the state of AZ?

    We owe more than what the house is worth-we can no longer afford our payment. Would we be taxed on the foreclosure?

    James’s Answer

    In Arizona foreclosure deficiency judgment is allowed but there are certain limitations that makes it more favorable for the homeowners than lenders. For every state in US there are different laws for deficiency judgment.
    According to Arizona anti-deficiency statutes the lender in certain cases cannot sue the homeowners for deficiency. According to the Title 33, Chapter 6.1 of Arizona Revised Statutes, the lender cannot sue the borrower:
    If the size of the property is 2.5 acres or less than that
    Further anti deficiency statutes is applied if the foreclosed home is a single family home or duplex.
    Moreover homeowners having second mortgage, refinanced loans and home equity line of credit are also exempted by the statute.
    Deficiency Judgement in Arizona
    Deficiency judgment in Arizona is allowed only for judicial foreclosure process and that too within the period of 90 days after foreclosure auction. The Veteran Affairs or VA home loans are the exception to anti-deficiency law. In case of VA loan deficiency judgment can be obtained even if the state prohibits the same in certain cases. In case the deed-in-lieu has happened, which means the homeowner willing gives the title of the home to lender, then the right of Arizona foreclosure deficiency judgment does not remain with the lender. But in this case the remaining balance, if any, becomes taxable income which will have to be paid in the next tax return.
    There are two anti-deficiency laws that are available for the protection of borrowers. These are:
    The distressed residential real estate market has prompted some lenders to ask us about possible foreclosure strategies in the context of Arizona’s anti-deficiency statutes. Many of these questions have not been easy to answer, due to the language of the statutes, the amount of discretion left to the courts, and the scarcity of applicable case law attributable to our recent history of favorable market conditions. What follows is a brief discussion of Arizona’s anti-deficiency statutes and how they affect a lienholder’s foreclosure decisions.
    In Arizona, protection for residential borrowers is set forth in two anti-deficiency statues: A.R.S. §§ 33-729(A) and 33-814(G).
    While by its plain language, § 33-729(A) applies only to purchase money mortgages, Arizona courts have construed it to apply also to purchase money deeds of trust that are foreclosed judicially. Mid Kansas Federal Savings & Loan Association v. Dynamic Development Corp., 167 Ariz. 122, 126, 804 P.2d 1310, 1314 (1991). The statute defines a purchase money mortgage (or deed of trust) as one “given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price.” Thus, the statute would not protect borrowers who have assumed the mortgage on the property, mortgaged one home to purchase another, or obtained home equity lines of credit.
    In turn, § 33-814(G) applies to deeds of trust foreclosed by trustee’s sale, whether or not they are purchase money deeds of trust. The statutory scheme, however, does not provide for non-purchase money mortgages.
    Qualifying Properties. Regardless of which statute is applicable, the threshold for obtaining anti-deficiency protection is the same: the property securing the loan must be “two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling.” A.R.S. §§ 33-729(A) and 33-814(G). The Arizona Supreme Court interpreted this language to require that the dwelling be built and at least occasionally occupied. Mid Kan. Fed. Sav. & Loan Ass’n, 167 Ariz. at 129, 804 P.2d at 1317. However, whether the property is occasionally occupied by the owners or rented to third parties, it will qualify under the statute for anti-deficiency protection. Northern Arizona Properties v. Pinetop Properties Group, 151 Ariz. 9, 725 P.2d 501 (App. 1986). In addition, for purchase money mortgages (or deeds of trust judicially foreclos

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  • Does the SBA have a statute of limitations to recover the original loan amount after a foreclosure?

    Does the SBA, as a post-foreclosure, wiped out junior lien holder on commercial property, have a statute of limitations to come after me to recover the original loan they gave me? If so, what statute applies?

    James’s Answer

    • Selected as best answer

    The SBA would pursue a claim for collection on a promissory note, which is a contract. For written agreements there is a statute of limitations of of 6 years based on A.R.S. Section 12-548. They are diligent at pursuing defaulted loans, however if a debt is deemed noncollectable they may in fact charge it off. However, if they are pursuing you withing the statutory period you will want to confer with a debt or bankruptcy attorney ASAP.

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  • If a writ to garnish was filed back in 2007 and it was denied, can a creditor file it again?

    I forgot I owed a credit card back in 2003.

    James’s Answer

    The reason for the denial must be detailed. If there is a valid underlying judgment, there is generally no good reason for an effort to collect it to be denied unless the creditor erred in it process. You may also be protected by the Statute of Limitation at this point.

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  • How long is a judgement valid and can it be refiled to change the amount against you?

    My checks were garnished starting in 01/2008 through 10/2010 totaling over $10,000.00. I was laid off in 09/2010 and attempted to contact the lawyer for the other party to make payment of the remaining $736.00 but calls were never returned. This ...

    James’s Answer

    It sounds like this debt is yours, therefore showing a judge your letter may not suffice much except to possibly set aside some of the interest. I agree with my colleague, you may want to consider options to discharge the debt instead of paying it off.

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  • I have a civil judgement in AZ & I work in CO. My employer has no presence in AZ Can they garnish wages & how long would it take

    Was wondering if we could fight it and what the process would be

    James’s Answer

    A competent attorney or collection service will find your employer pretty quickly via one of the array of databases we have access to. Once your employer is found, your AZ judgment will be domesticated in CO, then the road to their recovery will be paved and executed. The amount of time this will take depends on how aggressive they want to be. I could take as little as a month.

    They could also pursue your assets through your banking institution if they know who you bank with.

    Practically speaking, depending on the amount of the judgment they may or may not pursue you. To discuss the probability of their efforts to collect from you, you should consult an attorney in CO.

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  • Cant get my personal items from a landlord.

    I've tried two different scheduled times to only get sorry cant make it.

    James’s Answer

    Your former LL has a legal obligation to return your property to you post possession, however, you will have to pay him/her any past due monies. Otherwise they may sell your property to recover their loses and refund you the balance.

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  • Real estate question

    My mortgage was due on 10/1. I made a pre scheduled payment made on 10/15 for full payment on 10/31. When I made the arrangement they stated to call by the 30th if anything changed They also never stated that all arrangements are final... They ...

    James’s Answer

    If you make a payment a single day later than what you agreed, the bank can commence collection activities. However, a trustee sale cannot be executed so quickly. The foreclosure process begins with a notice of default, which must be issued 120 days before a trustee sale can be executed. If you have already received such, then the next requirement is that they must record a notice of trustee sale, which you must receive. The trustee sale cannot occur for 90 days after such notice is recorded. If a notice of trustee sale has not been recorded you merely need to get current on your mortgage. If it has been recorded, you will have to negotiate with the lender to reinstate your loan in good standing. Contact a real estate attorney who has experience with distressed property negotiations. Good luck.

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  • Can Party Compel An Arbitration If The Subject Contract Contained No Mandatory Arbitration Provision?

    Plaintiff (tenant) files a civil personal injury suit against Defendant landlord. The written rental agreement between the parties did not have any provisions indicating that an arbitration would be agreed upon in the instances of a lawsuit being...

    James’s Answer

    If the matter is valued at less than $50,000 the court will mandate arbitration. If it is greater, they may also strongly suggest it. If it is not based on a contract, either party may otherwise be entitled to its "day in court."

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  • Eviction: Re: Landlord/Tenant Act(Dec 2012) I've been grossly violated by landlord regarding eviction process. PLEASE HELP ASAP.

    I do not wish to inundate your time with the minutia regarding this situation. Suffice to say, I've got a co-lessee & not only is he predominantly responsible for this, he's not been involved in the resolution. I believed & was threatend by landlo...

    James’s Answer

    The best thing for you to do is try to find a personal reference. If that does not pan out, search Google and interview a handful of local attorneys.

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  • Is a Breach of Quiet Enjoyment A Breach Of Contract (rental agreement)?

    Is a covenant of quiet enjoyment always applicable in a landlord/tenant relationship even if not specifically a provision of the written rental agreement? If a landlord's conduct breaches the covenant of quiet enjoyment in some way, does the ten...

    James’s Answer

    If the rental agreement addresses a matter and it is not complied with by then it is a breach of quiet enjoyment. Their are breaches that are actionable and breaches that are not. To determine whether you need to write the LL a letter, pose the threat of breaking your lease and/or filing a suit, the nature and extent of the breach are important. In short, a breach of quiet enjoyment is a breach of an the implied agreement to quiet use and enjoyment. Contact a local attorney to discuss your matter further.

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