By Elspeth Crawford Many homeowners these days fall into the unfortunate situation of not being able to afford their home loans. When the Grim Reaper of mortgages comes around, foreclosure is his scythe. Foreclosure is a catch-all term for the legal process by which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments by forcing the sale of the asset used as the collateral for the loan, typically a house. Foreclosures are governed by the law of the state where the mortgaged thing is. Default The foreclosure process is triggered once the borrower (mortgagor) falls so far behind on her payments that she enters default. The conditions for entering default vary, based on state law and terms in mortgage agreements. Once a borrower enters default, she starts to accumulate late fees, legal fees, and other charges that are added to her outstanding debt, as determined by the mortgage agreement and state law. It’s important to note the lender does not have to foreclose; they are free to negotiate with the borrower. For example, they might agree to adjust the terms of the mortgage, refinance, allow the borrower to sell the property, or allow the mortgagor to make up for his or her missed payments. Types of Foreclosures Generally, there are two varieties of foreclosures: judicial foreclosures, which require a court order, and non-judicial foreclosures, which do not. In judicial foreclosures, the mortgagee must go to court and prove that it owns the mortgage and has the right to foreclose on it. Non-judicial foreclosures allow a mortgagee to foreclose without going to court. This is cheaper and quicker than a judicial foreclosure. Non-judicial foreclosures may only be used where the mortgage has a power-of-sale clause. These clauses most often appear in deeds of trust, a type of real estate secured lending instrument similar to a mortgage. Acceleration Clauses Most mortgages now include acceleration clauses. According to these clauses, if borrowers fall far enough behind in their payments, the rest of the loan is due immediately. Mortgagors usually invoke these clauses as a prelude to foreclosure. Most states regulate acceleration clauses, either generally, as specifically as applied to mortgages, or both. Mortgage-Backed Securities In recent years, lenders frequently bundled groups of mortgages into mortgage-backed securities, and then sold shares of the securities to investors. As a result, some mortgages have many owners. Others have changed hands so many times that it is difficult to determine who actually owns them. As a result, it is often difficult for the mortgagors to modify the terms of their mortgage. Similarly, mortgagees might have trouble proving that they own a mortgage they want to foreclose on. Right of Redemption In some states, mortgagors have a right of redemption that allows them to get back foreclosed property. If the original mortgagee owns the property, mortgagors may exercise the right by paying the bank the unpaid balance of their mortgage. If the property was already resold at auction, mortgagors must pay the purchaser whatever he or she paid for it. Rights of redemption only last for a limited time, which varies by state. The Process The foreclosure process differs state by state, but we can take a look at the general steps that are taken. If you're faced with foreclosure, it's important that you research your state's laws and practices. Foreclosure proceedings can begin after a single missed payment, but it isn't very likely. Most banks and lenders have a grace period for late payments, usually with a fee added on. It typically takes being a full 30 days late for the alarm bells to go off. After the second missed payment, you'll be getting some phone calls. Many lenders will only accept both late payments to bring the loan current. They also may refuse any partial payments. Once you fall three months behind, things get serious. This is typically when most lenders will begin the foreclosure process in one of two ways: judicial sale, which requires that the process go through the court system, or power of sale, which can be carried out entirely by the mortgage holder. All states allow judicial sale, while only 29 allow power of sale. If your state allows power of sale, the loan papers will usually have a clause that says this method will be used. Power of sale is typically faster than the judicial route. Let's look at both methods. Judicial Sale:
Power of Sale:
Both types of foreclosure require that any other involved parties be notified of the proceedings. For instance, if the homeowner took out another loan against the house with a third party, that lender must be contacted and its loan amount must be paid from the auction proceeds. If the third-party lender isn't paid, it can apply the mortgage to the new property owner. Many times, the lender will actually buy the property back and attempt to sell it through the real estate market at a later date. There can also be deficiency judgments made against the borrower if the sale of the property doesn't satisfy the amount of the loan. The entire difference between the two can be required, although some states only require that difference between the fair value of the property and the loan amount be paid. There's one more type of foreclosure that's almost completely obsolete, called strict foreclosure. In these cases, once judgment is made on the lawsuit, the property is automatically assumed by the mortgage holder. Only Connecticut and Vermont still allow this practice.
1 Comment
By Elspeth Crawford Slip and fall accidents are among the most common personal injury claims out there. They come in many varieties. A plaintiff might slip on a floor of a public business, trip over a toy in a residential home, stumble over a hole in the ground while walking outside, or more. Depending on the situation, the path to recovery can be different, and an attorney may be needed to help steer the case toward a satisfactory end. What to do Immediately After a Slip-and-Fall Accident The first thing to do after any accident, not just a slip-and-fall, is to get needed medical attention. Such accidents can break an arm, twist an ankle, or worse, and you don’t want to risk compounded the damage by not getting timely treatment. Assuming you’re in the condition to do so, it’s extremely important to create a record of the accident while it’s still fresh in your mind. Write it down if you can. Take note of the sequence of events leading up to the accident, the names and contact information of any witnesses, and what anybody said before, during, and after the accident occurred. If possible, take pictures of the accident scene. If you fell in a public facility, like a convenience store, the facility may file a proprietary accident report, but it’s always prudent to create one of your own so your version of events is preserved for negotiations down the line. Liability Proving fault in any personal injury claim is a tricky, circumstance-specific business. When dealing with slip-and-fall cases, much comes down to where the accident happens. The dimensions of the owner’s responsibility differ depending on what kind of locale is at issue, so be sure to tell your lawyer not only how and why you fell, but also where.
When thinking about who’s at fault for a slip-and-fall accident, remember that there must be a responsible party whose negligence caused the injury. Most state laws take the plaintiff’s own negligence into account, so if you were partly or completely responsible for your own injury your chances of recovering decrease dramatically. If you’re in a convenience store and slip on a puddle of grease which the management failed to clean up, you have a good case, but if you’re in the same convenience store and trip over your own untied shoelaces, your case will likely go nowhere. Damages If you have a successful slip and fall case, you stand to recover the kinds of damages you would normally recover in any personal injury case. These include compensation for wages lost, medical bills paid, potential future medical expenses, and damages for pain and suffering caused. Take a look at our new animated logo produced by IMIGpro. By Elspeth Crawford The right of publicity is the inherent right of every human being to control the commercial use of his or her identity. If your image is used to sell something without your permission, that is a violation of your right of publicity. Some people, in particular famous people, have a bigger interest in enforcing this right than others. Rush Limbaugh, for example, is known for his conservative viewpoints on American politics, so he probably wouldn’t want to have his face put on an advertisement for a liberal talk show. But celebrities aren’t the only people entitled to protect their identities: everyone has a right to safeguard the way they’re viewed by the public large. On the flip side, if you have a business and are thinking about invoking a public figure as a way to promote yourself, knowing what lines you can and cannot cross is very useful. Establishing a Violation of the Right of Publicity If you or your business believes that some other person or company is trading on your name and reputation without your permission, or if you’re thinking of doing that yourself, know that there are a couple of things that must be shown before anyone has to pay up. Specifically, the person alleging that their right of publicity has been infringed must show that:
Something to remember about cases for infringement of the right to publicity is that intent does not matter. If you use a celebrity’s image to promote your product without knowing that who that celebrity is are or that they’re famous, you’re still liable for damages if they come after you. What kind of remedies are available for a violation of the right of publicity? In order to recover damages under a right of publicity case, it is not necessary to establish any economic loss. If a celebrity’s image has been used commercially as described above, some amount of damages will be presumed. However, such an amount is likely to be nominal. To recover anything more, the person whose image has been misappropriated must establish that they lost money as the result of the misappropriation. This can be difficult to do, but at the least they will be able to obtain an injunction ordering you to stop using the image in commerce. In the worst case, those who misappropriate someone else’s image can be made to pay expensive punitive damages if they misappropriate it with full knowledge that what they were doing is against the law. Is there a time limit on filing a case for a violation of the right of publicity? The statute of limitations for violations of someone’s right of publicity varies between jurisdictions, but typically the limitations period is one or two years. Continuation of the Right of Publicity After Death Like many rights, the right of publicity can pass down from one person to another. For example, a certain movie star may be deceased, but their right of publicity persists and if wielded properly can still stop people from misappropriating their image. Whether the right gets passed down after death depends on whether the celebrity at issue exercised the right during their lifetime. If they did, the right passes down their family tree, but if they didn’t their image passes into the public domain and can be used by anyone. By Elspeth Crawford According to the FBI, identity theft is the fastest growing crime in the U.S., with over 700,000 victims a year. Learning about how it is commonly committed can help you prevent it from happening. Ordinary Theft Identity thieves increasingly make use of high-tech methods to poach personal information, but ordinary theft is still a distinct possibility. Identity thieves can go rooting through your trash for identifying information about you, steal mail from out of your mailbox, or simply snatch your wallet or purse from a public place. Shoulder-Surfing If he or she has a good memory, an identity thief can get a prolonged look at your personal information, say your credit card number, in a public place and then memorize that number for later use. Skimming Identity thieves can use small credit card readers to copy and later use the information on a card’s magnetic strip. This practice is called skimming. Skimming most often occurs when people turn their credit cards over to another person who then runs it through a card reader. This doesn’t mean that you have to walk back to the kitchen every time you use your credit card to pay at a restaurant, but be wary of letting your card out of sight at establishments you do not trust. Phishing Phishing occurs when an identity thief sends a fake e-mail to a user claiming to be from an institution which the user trusts. The identity thief might, for example, send a user an e-mail purporting to be from their bank and telling the user that there is a problem with one of their accounts. The user would then be directed to a phony website and tricked into giving away personal information in an attempt to fix the made-up problem. Related to phishing is pharming, a practice which also makes use of phony websites but does not involve using e-mails to trick a user into visiting those websites. Instead, pharming redirects users to a phony website even if they type the correct website address into their browsers. Careful monitoring of your spam folder and keeping your malware protection current can help protect against phishing and pharming behavior. Wireless Hacking Be wary of connecting to the internet via an unprotected wireless network. Such networks are easier to hack into than password-protected networks, and your information could become pray to identity thieves. Hard-Drive Rebuilding Many people keep sensitive information on their hard drives. When it comes time to get a new desktop computer, be sure to erase the data on your hard drive before disposing of it. Otherwise, enterprising identity thieves may be able to rebuild your hard drive and extract information from it. Laptop Theft Likewise, be cautious when taking your laptop out in public. Laptop theft is increasingly common, and thieves can use the information stored in a laptop to your disadvantage. The same applies to Smartphones, which are even easier to steal than laptops. Social Networking Many people post personal information on social networking sites like Facebook. You’re unlikely to put something like your social security number of Facebook, but the information you do provide can allow identity thieves to put together a profile of you they could use to get more sensitive information. For this reason, be wary of accepting invitations from people you do not know. Computer Security Attacks The reality is that even if you are not careless about your personal information and have it registered only with reputable institutions, you may still be vulnerable to identity theft. Identity thieves can hack into the records of such institutions and steal those records, or someone at the institution could steal them from within. The Privacy Rights Clearinghouse in the USA documented over 900 data breaches by major firms over a period of three years which resulted in a total of 200 million records being compromised. No method of protection is absolute, but it’s fully within your power to minimize risk. If the worst should happen, know what steps to take following an identity theft. All states require drivers to buy automobile insurance, but the reality is that, whether out of ignorance, inability, or unwillingness, many drivers ignore this requirement. If you get into an accident with such a driver and you do not have uninsured motorist coverage, you may find yourself needing to take the uninsured driver to court in order to recover damages. Seeing as how that driver could not afford insurance in the first place, it seems unlikely that you will recover anything from them. For this reason, it is prudent to purchase uninsured motorist coverage where you have the option to do so. In a handful of states, it is required. How it Works Most uninsured motorist laws give coverage for all sums the owner would be legally entitled to recover if the uninsured motorist was insured, but the specifics involving just what the motorist would have been entitled to recover differ state by state.
Definition of Uninsured Vehicle Definitions of an uninsured vehicle change slightly from state to state, but most define it as a driver who did not have any insurance, had insurance that did not meet state-mandated minimum liability requirements, or whose insurance company denied their claim or was not financially able to pay it. Most laws also specify that uninsured vehicles include:
Coverage of Persons It is very important that the person claiming benefits under an uninsured motorist policy fall within the policy’s definition of an “insured.” Those covered differ from policy to policy and it is vital that you understand who is covered before making a purchase. People commonly covered include:
Underinsured Motorist Insurance You can also purchase insurance that protects you from underinsured drivers in addition to uninsured ones. An underinsured driver is someone who met minimum legal financial responsibility requirements but did not have payment limits high enough to cover the damage they caused. Underinsured motorist protection pays you for damages that exceed the payment limits carried by a driver who is considered underinsured. |
Archives
January 2022
|