Real Estate Closings or Refinance
Foreclosure Defense and Modifications
Landlord Tenant Disputes
Bankruptcy Chapters 7 11 13
Utilize Chapter 7 or 13 to save your home through a Court Modification Program.
The Chapter 13 Mortgage Modification Mediation Program (MMM) is a new program in the U.S. Bankruptcy Court to help qualified Chapter 13 debtors keep their homes. MMM is designed for Chapter 13 debtors who cannot afford their current mortgage payment, but have steady income to pay a modified mortgage payment. MMM sets up an informal meeting between the debtor and the lender conducted by a neutral mediator who acts as a discussion facilitator. The mediator cannot force a lender to modify a mortgage, but can help the debtor and the lender reach an agreement. MMM is a way for the debtor and lender to discuss whether modifying the mortgage is possible.
The goal of MMM is for the debtor and lender to agree to a permanent mortgage modification. MMM is a voluntary program, and MMM has the support of the Bankruptcy Court. The Judges encourage qualified Chapter 13 debtors and lenders to try the program. MMM has been designed with protections for debtors and lenders alike.
Chapter 7 bankruptcy is the simplest and most common form of bankruptcy.In Chapter 7, if the debtor has assets not protected by an exemption, a court appointed trustee may sell the assets and distribute the net proceeds to creditors according to the priorities established in the Code.In exchange, the debtor gets a discharge of his personal liability for most debts.In almost 99% of individual bankruptcy cases, the trustee closes the case without selling anything that belonged to the debtor.
An individual’s eligibility to file Chapter 7 is determined by the means test instituted with the 2005 amendments to the bankruptcy code.Some high earners may not qualify for Chapter 7 if their debts are primarily consumer debts. With the help of experienced bankruptcy lawyers, most people who want to file Chapter 7 can do so.Chapter 7 is generally the simplest and quickest form of bankruptcy and is available to individuals, married couples, corporations and partnerships.
During your initial consultation our goal is to devise a plan to help settle your case quickly and with as little financial and emotional distress as possible. Our approach to your defense will depend upon where you stand in the foreclosure process. You may be pre-foreclosure, meaning a foreclosure lawsuit has not yet been filed against you, or post-foreclosure, meaning you have received notice of a pending foreclosure lawsuit. In either situation, an active defense can aid in the process of negotiation by helping the lender(s) avoid the expense of continued litigation. Call today to start the process or just ask a question.
Landlord Tenant Issues
When a person pays rent to live in a house, apartment, condominium or mobile home, the renter becomes a tenant governed by Florida law. It doesn’t matter whether payment is made weekly, monthly or at other regular periods. Also, it doesn’t matter whether the apartment, house, condominium or mobile home is rented from a private person, a corporation or most governmental units. These facts are true even when there is no written “lease” agreement.A tenant has certain rights and responsibilities under Florida law. These are specified in the Florida Statutes at Part II, Chapter 83, the Florida Landlord Tenant Act. A tenant in federally subsidized rental housing has rights under federal law, as well. If there is no written lease, these laws regulate the tenant’s rights. There also may be a written lease that could affect a tenant’s rights. If there is a written lease, it should be carefully reviewed.
The Florida Residential Landlord Tenant Act prevails over what the lease says.A tenant is entitled to the right of private, peaceful possession of the dwelling. Once rented, the dwelling is the tenant’s to lawfully use. The landlord may enter the dwelling only in order to inspect the premises or to make necessary or agreed upon repairs, but then only if the landlord gives the tenant reasonable notice and comes at a convenient time. If an emergency exists, the requirement for notice may be shortened or waived.The landlord is required to rent a dwelling that is fit to be lived in. It must have working plumbing, hot water and heating, be structurally sound and have reasonable security, including working and locking doors and windows, and it must be free of pests. The landlord also must comply with local health, building and safety codes. If the landlord has to make repairs to make the dwelling fit to live in, the landlord must pay.If the landlord contends that the tenant has violated the rental agreement, the landlord must inform the tenant in writing of the specific problem and give the tenant time to correct the problem – even if the problem is nonpayment of rent – before the landlord can go to court to have the tenant removed. Tenants receiving a nonpayment-of-rent notice should be aware that a landlord may accept part of the rent owed and still evict the tenant.
Tenants renting condominiums should be aware that, in certain circumstances, the condominium association may demand that the tenant pay the rent to the association instead of the landlord. Tenants should consult an attorney in this case. If the tenant commits a serious act endangering the property (such as committing a crime on the premises) or fails to correct a problem after written notice from the landlord, the landlord still must go to court to be permitted to evict the tenant. In any court proceeding, tenants have the absolute right to be present, argue their case and be represented by an attorney.If the landlord requires the tenant to pay a security deposit, the landlord must preserve the deposit during the tenancy. In addition, the landlord must return the full amount of the deposit within 15 days after the tenant leaves the dwelling or give the tenant written notice of why some or all of it won’t be returned within 30 days after the tenant leaves the dwelling. The tenant then has the right to object in writing within 15 days of receipt of the notice. Under some circumstances, the tenant may receive the security deposit plus interest. Before moving out, the tenant must provide the landlord with an address for receipt of the security deposit, or else the tenant may lose the right to object if the landlord claims the right to keep the deposit money.The tenant has the right, under certain very aggravated circumstances caused by the landlord’s neglect, to withhold rent. This can be done only when the landlord fails to comply with an important responsibility, such as providing a safe and habitable home in compliance with local housing codes. Before rent is withheld, the tenant must give the landlord seven days’ written notice of the problem so the landlord can fix it. Even after withholding rent, the tenant should save the money and seek court permission to spend part of it to do what the landlord should have done. If the tenant does not preserve the money and seek court assistance, the tenant may be evicted for nonpayment.
Finally, the tenant has the right to move out. If there is a written lease, the tenant should read the lease closely to see if it requires up to 60 days’ notice that the tenant does not intend to stay after the lease ends. If there is no written lease, the tenant may move out for no reason by giving written notice of the intent to leave no fewer than seven days before the next rent payment is due, if the rent is paid weekly, or 15 days, if the rent is paid monthly. The tenant may terminate the rental agreement if the landlord has failed to live up to a major obligation, provided the tenant has sent written notice to the landlord seven days before the rent is due (there are some exceptions to the right to move out).If a landlord loses in court, the landlord may be held liable for any costs and attorney’s fees incurred by the tenant. If the tenant loses in court, the tenant may be liable for the landlord’s costs and attorney’s fees.A tenant also has responsibilities that, if not observed, can lead to eviction. The tenant must pay the agreed-upon rent and do so on time. The tenant must comply with building, housing and health codes. The tenant must maintain the dwelling without damage, other than ordinary wear and tear, keep the dwelling clean and maintain the plumbing. The tenant must not violate the law or disturb the peace, nor allow guests to do so.In trying to evict a tenant, a landlord will try to prove that the tenant violated a tenant responsibility. However, the landlord may not seek to evict a tenant in retaliation for legitimate complaints about housing conditions to proper authorities. No eviction can occur until the landlord first gives the tenant notice of the problem and then gets a court order. Without the court order, the landlord has no power to interfere with the tenant. The landlord cannot, for instance, lock a tenant out or cut off a tenant’s utilities. A landlord engaging in this type of prohibited practice may be liable to the tenant for damages in the amount of three months’ rent or actual damages, whichever is higher. The landlord must get a court order of eviction before interfering with the tenant’s occupancy. If a tenant is served with papers seeking eviction, the tenant should immediately seek legal assistance. The tenant may have legal defenses. For instance, the landlord cannot try to get even with a tenant through eviction when the tenant has not violated tenant responsibilities. To raise defenses in an eviction proceeding, a tenant normally must pay into the court registry past-due rent if any is owed and rent that comes due during the proceeding. A tenant who disputes the amount of rent claimed to be due may ask the court to determine the correct amount, but the tenant must show why the amount is wrong. In an eviction proceeding, a tenant has very little time to respond, so quick action is important.The landlord can never remove the tenant’s property or lock the tenant out. Only the sheriff’s office may do this, after a court order and writ of possession.
In Florida, the real estate sector is a large part of the local economy with a substantial number of residential and commercial real estate closings occurring on a continual basis.Although Florida real estate attorneys fully understand the real estate closing process as they are involved in real estate closings every day, many of the other participants in Florida real estate transactions often experience some confusion as to everything that happens between the time the purchase and sale contract is signed to the date of closing.This brief article is written to explain the closing process and the basic steps that are customarily followed in every Florida real estate transaction so that buyers, sellers, real estate agents, lenders and other interested parties will have a better understanding of the many actions taken by Florida real estate attorneys to successfully close a real estate transaction.
After a purchase and sale contract is signed between the buyer and seller and the initial escrow deposit is made by the buyer, the buyer's lender (if the transaction is being financed) or the buyer's real estate agent (if the transaction is a cash transaction) will submit a request for title to the closing attorney chosen by the buyer to start the process.Typically, the buyer's lender or real estate agent will complete and send a one or two page form to the closing attorney which contains all of the relevant information related to the transaction such a party names, property description, purchase price, lender information and exiting mortgages. Most real estate attorneys also have pages on their websites where the buyer's lender or real estate agent can electronically complete and send in the request for title. The buyer's realtor will also typically send a copy of the signed purchase and sale agreement to the closing attorney at this point.
The processing stage of the transaction commences immediately after the closing attorney receives the request for title. As there are many third parties who must be coordinated with in order to obtain all of the necessary information and documentation in time for the closing date, an experienced Florida real estate attorney will commence the processing stage as soon as possible after the receipt of the request for title.The file processing stage includes ordering tax information that shows the status of current and prior years taxes, loan payoff statements, surveys, homeowner or condominium association estoppel letters showing maintenance fees and any assessments, inspection reports, and certificates evidencing hazard insurance.In addition, at this stage the Florida real estate attorney orders the title search report from the title insurance underwriter and the lien and judgment search report from the lien search company.
During the title search phase of the transaction a thorough search is made of the public records in the county in Florida where the real property is located. Records searched and located include deeds, mortgages, lis pendens, judgments, easements, restrictive covenants, liens, divorce settlements and any other documents recorded in the public records which affect title to the property.After all of the documents are located, the title insurance underwriter prepares a title search report, which includes all such documents and sends it to the closing attorney.
After the closing attorney receives the title search report from the title insurance underwriter, the title examination phase commences. The closing attorney will first issue a title commitment to the buyer (and if applicable, the lender) based upon the information contained in the title search report.Next the closing attorney will examine all of the documents found during the title search that affect the title to the property in order to determine the current status of title and whether any title clouds exist which need to be cleared prior to closing. The closing attorney also verifies the record legal owner of the property and makes note of any debts owed against the property.
After any and all title clouds have been cleared and the parties are ready to close the transaction, the Florida closing attorney will proceed to prepare all of the documents in order to close the transaction, which includes the deed, bill of sale, affidavits, FIRPTA certificate, and closing statement.In connection with this, if the buyer is financing the purchase, the buyer's lender will submit to the closing attorney its closing instructions so that the closing attorney can include all of the lender's charges, fees and escrows on the settlement statement.An experienced Florida closing attorney will distribute drafts of all of the closing documents to all interested parties in advance of closing so that same may be reviewed, commented on, revised, if necessary, and ultimately approved well in advance of closing.
Once all of the closing documents have been approved, a date and time to close the transaction is scheduled. At the closing the closing attorney oversees all aspects of the closing of the purchase and sale transaction and answers any questions the parties may have which relate to the transaction and/or the closing documents.The seller signs the deed and the other seller documents, the buyer signs the buyer's documents and the loan documents (if the transaction is being financed), and both parties sign the Closing Disclosure. After the closing has occurred the seller, real estate agents, the attorneys and other parties to the transaction are paid and certain documents are sent to be recorded in the county in which the property is located.
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