Symmes Law Group | Press & Media - Symmes Law Group

Symmes Law Group | Media & Press

Thanks for checking out the media and press section of the Symmes Law Group, PLLC website. Here you will find a compilation of radio shows I have recorded on 1150 AM KKNW New Urban Unlimited Show and corresponding content to support the topic of each show. You can link to the written content on the media player above or scroll down to view all the content in depth. You can also find additional media on our video resources page which you may find helpful as the videos address common questions for those interested in bankruptcy, debt settlement or foreclosure defense. If you live in Washington State and need assistance with any of these topics feel free to schedule an appointment HERE.
 

What is Financial Self Defense?

Financial self defenceFinancial self defense is a term used to describe your overall financial well being and planning for the future and unknown.  I had the chance to discuss this topic on 1150 AM KKNW radio with Dr. James Gore the host of the New Urban unlimited radio show and JR Gillespie of All Star Financial Insurance. You can listen to our full discussion on financial self defense here:

Should Financial Self Defense Include Creating a Household Budget?

Financial self defense starts with implementing the correct budgeting based on your household income and making sure you are not living outside of your means.  By sticking with your budget you can keep an eye on overspending and make sure you are saving something for your future.  These days 78% of Americans are living paycheck to paycheck so it’s important to get a financial plan in place so you can put funds away for savings and  rainy day.

Should Financial Self Defense Include Obtaining the proper insurance?

Insurance can come in many forms and amounts.  Some of the most popular types of insurance include medical insurance, life insurance and disability insurance.  Having the proper insurance can insure that your family is taken care of if you are not around or unable to work in the future.  For instance if you are a business owner and have an accident which makes you unable to work, having the proper insurance can make sure you still get a paycheck every month even though you are unable to work.  Insurance will help you stay on track and stick to your budget so you don’t have to be one of the 78% living paycheck to paycheck.

Should Financial Self Defense Include Business Planning?

If you are a business owner or real estate investor, having your businesses set up as an entity such as an LLC can make sure you will not be liable for business debts should you run your business properly.  For example if you are facing collections for a business debt that you are not personally liable on or somebody slips and falls at a property you own and the property is owned by a business, your personal assets would be protected. Proper business planning can save you from having to personally deal with such an emergency and makes sure you can stick to your budget and continue to save for your future.

Should Financial Self Defense Include Estate Planning?

Estate planning is something that everybody should be thinking about.  A typical estate plan consists of a will, power of attorney, medical power of attorney and a health directive.  Having a will in place will make sure your assets will go where you want them to for the protection of your family when you pass away.  A will can also set up a testamentary trust for your children and name guardians so there is no question as to you wishes.  A power of attorney makes sure that your finances can be controlled by another should you become incapacitated and medical related documents make sure the right person is making your medical decisions should you not be able to. Having things documents in place avoids confusion by your family should something happen to you and makes sure there are safeguards in place for your estate and is part of the financial self defense strategy.

What Can I Do If I Did Not Utilize a Financial Self Defense Strategy or I Had An Emergency?

It is never too let to start thinking about your financial self defense plan moving forward.  You can start be talking to professionals who can set you up on a plan to make sure you are protected moving forward.  If you are already in financial distress then there are also options such as chapter 7 bankruptcy, chapter 13 bankruptcy and debt settlement that can get you back on track and in control of your financial future.  Once you have a plan for your finances you can start rebuilding your credit and be protected should there be a financial emergency in the future.

If you live in Washington State and are looking for options for how to implement a financial self defense strategy, give Symmes Law Group a call at 206-682-7975 to speak to a financial planning attorney and learn about your options.

10 Things that Prevent Consumers from Getting Out of Debt

Getting out of debtMost consumers who are buried in debt are likely looking for options in getting out of debt. There are options to get out of debt, such as debt settlement, chapter 7 bankruptcy and chapter 13 bankruptcy, but a consumer needs to be willing to learn about their options and take action by scheduling a free debt consultation.

If no action is taken, the consumer will likely fall further behind, continue to do harm to credit, face possible lawsuits and garnishments and end up needing to address the issue in the future when they have ran out of all alternatives. I talked about this topic on the radio at 1150 AM KKNW and  you can listen to that segment here:

What are the 10 things that prevent consumers from getting out of debt?

(1) Emotions. Dealing with debt can be very stressful and emotional at times. These emotions can cause a person to simply bury their head in the sand and ignore the reality that action needs to be taken.

(2) Family. Sometimes family can be a great help in dealing with financial distress. Other times unfortunately they can provide bad, uneducated information regarding bankruptcy or debt settlement. Cultural dynamics and values may also come into play when dealing with debt to a consumers which can affect how a consumer takes on the debt issues. A consumer in financial distress should always consult with a professional first to get the facts before making any decisions that could be based on misguided information.

(3) Fear. Most people want to pay their debts, however if an when the time comes where you simply cannot keep up with payments, there is fear of what might happen if a bankruptcy is filed or a creditor files a lawsuit. The reality is that most people emerge from a bankruptcy in much better financial condition than they started, but may have heard or received bad information regarding bankruptcy and options that are available to help.

(4) Procrastination. In order to resolve financial issues, you need to be willing to put in some time to get the information from professionals that can help you out of your situation and then once that is received, you must be able to execute on the plan of action you decide. Sitting around for a year or longer when you know what needs to be done will only continue to cause stress and fear of the unknown when you could have resolved the issues at a previous date and obtained a fresh start.

(5) Financial Barriers. While you may already be experiencing financial distress, it is true that most professionals such as attorneys do not work for free as they need to work too to support their families. With that said, you can come up with a plan in order to pay legal fees by stopping payment to creditors who may be included in a bankruptcy or debt settlement plan.

(6) Pride. Nobody wants to file for bankruptcy or go late on paying their bills. You can feel like a failure and it does take an ego hit. With that said, bad things can happen to good people that are out of your control whether it be medical, a job loss, or a business that didn’t work out.

(7) Stubbornness. Even when you have the facts and know you are out of options; sheer stubbornness can cause people to wait until the 11th hour to take action. This usually happens when a judgment or wage garnishment is issued from a debt collector and then you are faced with not having funds to pay basic living expenses.

(8) Over Rationalization. Yes, you can rationalize every angle and possibility for dealing with debt and hang on as long as you can but most of the time that will not make the debt go away, or it is simply not the smartest move if you could get rid of debt today, but this may not be an option in the future due to an inheritance or new higher paying job. You should live in the moment and decide how to take action based on the current situation not what ifs.

(9) Too Busy. You may have a job, perhaps a good job, but you may still be dealing with debt issues from a divorce, prior business or being unemployed previous. Now you are very busy, but you realize something needs to be done to stop the financial bleeding. This results in no action being taken if you don’t take the time to get your financial house in order.

(10) Not Understanding What to Do. If you have not sought out professional help with how to resolve your debt then you may not know what direction to go, even though you want to try to resolve the problem. Perhaps you have consulted with somebody and you are still confused. Until your situation improves you should strive to get the answers you seek to understand the action steps you need to take.

If you live in Washington State and are looking for options for getting out of debt, give Symmes Law Group a call at 206-682-7975 to speak to a bankruptcy attorney and learn about your options.

10 Things Young Families Should Think About When Drafting a Will and Estate Plan

drafting a willAn estate plan for 99% of people usually consists of a drafting a will, durable power of attorney and a medical power of attorney with an optional health directive. A trust may also be created, however for most common folks it is not necessary as a testamentary trust provision can be added to a will for the benefit of minor children. Attorney Richard Symmes discussed the topic of drafting a will and 10 things young families should think about when drafting an estate plan on 1150 AM KKNW which you can listen to here:

(1) What Goes into Drafting a Will and Do I Need One?

As a general rule of thumb, everybody should have a will. This is a legal document that allows you to name a personal representative to handle your affairs when you are gone, it can provide for specific gifts to individuals or organizations, it can include a testamentary trust provision that states a trust shall be created for the benefit of minor children and will include your estate assets and it will name a guardian(s) for your minor children and trustee for your testamentary trust.

Having a will makes it so that your assets are administered per your wishes and can make sure that your children are taken care of. It also takes the burden off of your family to try and determine how you would have wanted your assets distributed. If you don’t have a will and die intestate (without a will) then all of your assets will be administered per Washington state law.

(2) Who Should I Name as My Personal Representative?

The person that you name as your personal representative should be somebody that you trust will handle your affairs per the instructions set out in your will. This is typically a spouse or a sibling but you may name anybody you wish. It is advisable to name a primary person and then one or two backup options in case the personal representative you name is unable to serve.

(3) How Does a Testamentary Trust Work?

A testamentary trust is simply language placed into a will that instructs the personal representative to set up a trust, most likely for children, should they pass away. The trust provision can include language that can restrict how any testamentary funds are to be distributed and shall name a trustee to manage the trust and all the beneficiaries. It is important to think about how you want these funds to be used such as most families like to put restrictions on the trust funds such as they may be used for education and support but not until a certain age are all the funds distributed to a beneficiary.

(4) Can I Disinherit People in My Will?

Yes, you can place restrictions in your will that can specify certain people shall not receive any benefit from your estate as well as limit who can serve as a personal representative or trustee of your estate or testamentary trust.

(5) Do I Need a Separate Trust Set Up Now?

For most young families the answer is no. If assets are placed in a trust before an individual’s passing, then they do not have to pass through probate. Probate is the process of administering assets and paying debts in a court proceeding. Anybody with more than $100K in probate assets upon their death must go through probate in Washington State. Things like life insurance proceeds or assets placed in a trust do not have to go through probate which is beneficial as probate is the process of distributing assets and paying creditors under a court proceeding which can delay family members from receiving assets in a timely fashion.

Furthermore, with regards to real estate, families can record a transfer on death deed which would transfer a property upon death and also avoid probate. For high net worth individuals there may be tax benefits to creating a separate trust or if you want anonymity with regards to your estate a separate trust may be a good idea and trust docs are not filed in court for public viewing.

(6) What is a Durable Power of Attorney?

A durable power of attorney is a legal document that allows you to act on ones behalf if they become incapacitated. This usually applies to being able to access bank account and handle ones personal affairs. If somebody passes away, however you may need to open a probate case to get testamentary letters to access accounts, transfer title in real estate or gain access to a safety security box.

(7) What is a Medical Power of Attorney?

A medical power of attorney names an individual to act on your behalf when it comes to making medical decisions. You may want this person to be different than your personal representative for various reasons such as training in the medical field or being more compassionate when it comes to handling your medical affairs.

(8) What is a Health Directive?

A health directive specifically advises under what situations the hospital shall stop administering life saving health care. For instance, if you are in a coma with no brain activity do you want them to continue life support or not? When you sign a health directive it should be in the presence of two witnesses. Once, again this reduces the burden for loved ones in an already difficult time.

(9) What If I Don’t Have Assets of More than $100K?

If you don’t have assets of more than 100K at the time of your death, then your estate can avoid probate and your heirs can sign a small estate affidavit to administer your estate in order to close out accounts and distribute funds accordingly. If you had a will, it will still need to be filed with the Superior Court in the County where you lived. Nevertheless, it is still advisable to have a will so that you can name a personal representative to handle your affairs and give specific gifts to any beneficiaries you see fit, otherwise the state will make these decisions for you.

(10) Should I have an Attorney Draft My Estate Planning Documents or Do It Myself?

With all the technology and do it yourself services out there you are probably thinking you can handle drafting your estate planning documents on your own. I don’t blame you, but it is just like any other legal matter where you could represent yourself or hire an attorney. Having an attorney will allow you to get all your questions answered during the process and have peace of mind that the documents are being drafted correctly. If you create the documents on your own, you may save a few dollars, however you will need to be careful that the laws cited in the documents apply to your state and that they are doing what you intend them to do. At the end of the day, hiring an attorney isn’t crazy expensive as most estate plans can be created for between $1,000 – $2,500 for the docs listed in this article.

If you live in Washington State and are looking for assistance in drafting a will or an estate plan, give Symmes Law Group a call at 206-682-7975 to speak to an estate planning attorney and learn about your options.

How Can Bankruptcy Benefit Real Estate Investors and Consumers?

How Bankruptcy Can Help Real Estate Investors

Last week attorney Richard Symmes had the opportunity to be on one of our favorite podcasts for real estate investing, the Seattle Investors Club Podcast. In the episode you will learn about attorney Richard Symmes’ background and experience in bankruptcy and foreclosure defense and how can bankruptcy benefit real estate investors and consumers alike moving forward.  You can check out the episode here:

Can Bankruptcy Benefit Real Estate Investors and Consumers?

The answer is yes.  As we talked about in the episode every real estate investor when they come across a distressed home owner should be looking to provide options to those in need.  The better understanding an investor has of those tools, the better you will be able to help those in need.  Those tools can consist of Chapter 7 bankruptcy, Chapter 13 Bankruptcy, Loan Modification or Foreclosure Fairness mediation.

If these options do not make sense, the best option for the homeowner might actually be selling the property so that they can have equity to move forward and the real estate investor can have the property they were seeking to rehab or hold.  It’s a win/win situation if everybody is on the same page and everybody is in agreement as to what is the best options moving forward for everybody.  The first step is to check out where the distressed owner is on the Washington state foreclosure timeline and offer some options from there.

How Can Foreclosure Fairness Mediation Benefit Distressed Homeowners?

In Washington State we have a law called the Foreclosure Fairness Act (FFA) (RCW 64.24.163).  This act allows homeowners with loans from most big banks (smaller bank or individual lenders are exempt from the law), to apply to the state through an attorney or housing counselor for mediation. This mediation may be requested once a notice of default is received by the homeowner and up to 20 days after a trustee sale date is recorded with the county.  This act also only applies to primary residence and not investment properties.  Once the state has accepted the referral a mediator will be appointed and local attorneys for the bank will be notified.  The goal of the mediation is to help a distressed homeowner get a modification to stay in the residence.

The best benefit of the FFA mediation is that once the mediation process is started, a homeowner cannot be foreclosed upon until the mediation process is complete.  This process can last several months if not longer so it will allow the distressed homeowner to buy time to weigh their options as well as have the opportunity to be reviewed for a loan modification without living in fear of a foreclosure date or having to file for bankruptcy.  If the distressed homeowner is denied a loan modification and mediation session is closed, the foreclosure process may start up again.  If necessary a bankruptcy could be filed at a later date to delay a sale further.

How Can Chapter 7 Bankruptcy Benefit Distressed Homeowners?

In most cases involving distressed homeowners looking to stop a foreclosure sale, chapter 7 bankruptcy does not make the most sense.  Chapter 7 bankruptcy is a start fresh, liquidation bankruptcy, although most times, debtors get to keep all their assets under a certain amount per exemption laws.  The filing of the bankruptcy will stop a foreclosure sale due to the bankruptcy automatic stay, but it allows a bankruptcy trustee to liquidate assets for the benefit of creditors.

In Washington, homeowners can protect up to $125,000 of equity in a primary residence located in Washington State by utilizing the Washington State bankruptcy exemptions.  If there is the potential to receive any more than that amount a bankruptcy trustee is likely to sell the property for the benefit of creditors. Distressed homeowners also need to watch out for trustee’s trying to short sell a property for the benefit of creditors if there is no equity and the mortgage is delinquent.  Court have allowed trustees to “carve out” funds from the short sale for the benefit of creditors.  This means the bank takes the property back, and gives money to the trustee for doing their dirty work and these funds benefit the distressed homeowners creditors.

This means that chapter 7 bankruptcy is not the best option for distressed home owners unless they have significant unsecured debt like credit cards or medical debt and they are ok with the possibility they may lose their  home if the trustee wants to sell it for the benefit of their creditors.  There are also other factors that may impact whether a chapter 7 makes sense or is possible and a bankruptcy attorney should be consulted prior to filing anything.

How Can Chapter 13 Bankruptcy Benefit Distressed Homeowners?

Chapter 13 bankruptcy is likely going to be the best and most tool to a distressed homeowner.  A chapter 13 bankruptcy can be filed anytime prior to the actual foreclosure sale in order to stop a foreclosure sale from happening. A chapter 13 bankruptcy allows a distressed homeowner to make up payments they are behind over 5 years while also making their normal mortgage payments.  Being able to afford such a plan is key if this option is going to be a viable long term plan.  Filing a chapter 13 bankruptcy can also eliminate other unsecured debts as part of a case and the amount a debtor needs to pay is based on equity in assets, family size and household gross income.

If a complete chapter 13 bankruptcy case is not filed, it may be referred to as an emergency filing that consists of a distressed homeowners name, address, social security number and a list of their creditors.  From here the distressed homeowner can decide to file the balance of the required bankruptcy schedules or let their case get dismissed. By filing an emergency case it can buy a distressed homeowner 30-45 days on average to figure out their next plan of action, whether that be catching up on a loan, a loan modification or selling to a third party.  Filing the balance or the required bankruptcy schedules will allow a debtor to buy more time, but they will also have to start making payment to the chapter 13 bankruptcy trustee. If no payments are made or the balance of schedules are not filed a bankruptcy case can be dismissed or in the rare case, converted to a chapter 7 liquidation if a debtor has been abusing the process or is a serial bankruptcy filer.  If a debtor wishes to sell a property while in a bankruptcy, it would require court approval or the dismissal of the case.

If you come across homeowners who are looking for options to stop a foreclosure sale in your real estate business, give Symmes Law Group a call at 206-682-7975 to speak to a foreclosure defense attorney and learn about how we may be able to help.  

How Do I Rebuild My Credit After Filing Bankruptcy?

How Do I Rebuild My Credit After Filing BankruptcyIf you are considering filing for bankruptcy or you have recently filed for bankruptcy, you may be wondering, how do I rebuild my credit after filing for bankruptcy? Attorney Richard Symmes discussed how to rebuild credit after filing bankruptcy on 1150 AM KKNW and you can check out the discussion here:

Like most consumers, you may assume that filing bankruptcy will completely destroy your credit scores and that you will never be able to obtain credit, buy a home or purchase a vehicle again.  The reality is quite the opposite.  While a bankruptcy can remain on your credit report for up to 10 years as a public record which is a negative item in of itself, it is usually outweighed for most people after they obtain a bankruptcy discharge which erases most debts and negative reporting of the past.

A big part of your credit score is how much debt you have in relation to your available credit lines and what negative history you have.  If all of your debt and negative items disappear, your credit score will likely go up.  For instance if your scores are in the 400-600 range, it’s typical for scores to increase 100+ points after a bankruptcy filing.  If you scores are in the 600 700 range, there may be a minimal impact on your scores.  If your scores are 700+ at the time of filing a bankruptcy, then you may see a decrease in your scores, however as we will discuss here, you can improve your scores over time after filing for bankruptcy.

Should I check My Credit Report After My Bankruptcy Case Closes?

Yes! After your bankruptcy case closes, you may be free of debt, but that doesn’t mean there may not be some remnants remaining from your past.  You should monitor your credit for several months to make sure creditors and credit bureaus have updated their records and reporting history on your credit reports.

Discharged debts that appear on your credit report can have a negative impact on your credit score.  You should dispute negative items immediately with the credit bureaus and creditors to get your scores reporting correctly.  The longer the negative item remains on your credit report, the longer it will take to rebuild so it is best to be proactive about the situation if you spot an error.

What If My Reaffirmed Debt is Not Reporting On My Credit Report?

In a chapter 7 bankruptcy case, debtors are allowed to reaffirm secured debts such as an automobile loan.  If you choose to reaffirm the debt, your lender should continue to report your payments on your credit report and you will also be liable for the debt post bankruptcy filing.  If you do not reaffirm a debt, you will not be liable for a debt post filing, but your secured debt will not be reported on your credit report.  Whether you should sign a reaffirmation agreement depends on each individual situation.

If you did sign a reaffirmation agreement and the debt is not reporting correctly you will want to contract your creditor and the credit bureaus to get this resolved as the omission could have a significant impact on your credit score.

Will I Qualify for a Car or Home Loan After Filing Bankruptcy?

The short answer is yes.  One of the most common statements clients make to me when I see them at court in about 30 days after filing their case is, why do I get so many offers for credit and cars after filing?  The answer is because creditors know that you cannot file for chapter 7 bankruptcy again for 8 years and chapter 13 after 4 years from a chapter 7.  Therefore, they are willing to take a risk on you with regards to offering credit.  The rates you will receive will likely depend on your credit score, which is why it is important to monitor your score and make sure items are reporting correctly.

With regards to home loans, most bankruptcy and federal lenders will offer you a home loan after 2 years from your chapter 7 bankruptcy filing date and immediately after you exit a chapter 13 plan.

What if I Incurred More Debt After Filing Bankruptcy?

After filing for bankruptcy, you don’t want to make the same mistakes you made before, including borrowing more than you can afford to pay back.  Sometimes accumulating debt is unavoidable such as with a medical problem or job loss, but if you can avoid incurring more debt it is advisable as an individual will only qualify to file bankruptcy again after 8 years.  Therefore, it is best to live within your means and accumulate savings if at all possible.

With that said, not all debt bad debt.  If for instance you get a car loan, credit or a home loan, and make payments on these every month, that can help build your credit.  For best results you want to have several lines of credit, but not actually use all the credit available to you.  This means use credit, get perks associated with that, and then pay down the debt every month.  You don’t want to have balances more than 25% of your available credit lines.  Secured credit cards are another way to build your credit if you don’t otherwise qualify for regular credit cards.

If you live in Washington State and are looking for assisting in rebuilding your credit score after filing for bankruptcy, give Symmes Law Group a call at 206-682-7975 to speak to a credit repair attorney and learn about your options.

What are Possible Remedies for An Unlawful Foreclosure?

Remedies for An Unlawful ForeclosureIf your home has been foreclosed upon, you may be looking for possible remedies for what you may consider an unlawful foreclosure. In Washington state most foreclosure sales have to go through the Washington state non judicial foreclosure process. It is also common during this process for a bank to change servicers which can cause confusion as to who is doing what and whether your trustee sale date has been rescheduled. You should know that under RCW 61.24.040 a servicer change during the foreclosure process is not reason alone to reset the foreclosure process and furthermore courts have ruled that a homeowner was still notified of the possible sale and could have taken court action prior to the trustee sale date.  Therefore, it is very difficult to get a property back after a foreclosure sale has occurred if the servicer and trustee will not voluntarily rescind the sale.  This also means that homeowners should be pro active to either file bankruptcy to stop a foreclosure sale or file a lawsuit months in advance if possible for injunctive relief to make sure a sale does not happen before you have your day in court. Bankruptcy is the easiest and most cost efficient way to stop a sale, but bankruptcy is not for everyone as circumstances may very from one consumer to another. If filing for injunctive relief in Washington state superior court, you must allow enough time to give all parties notice of the lawsuit and get the case on the courts calendar which can take time.

With that said, after a foreclosure sale, although chances of getting a sale rescinded are slim, a homeowner may be entitled to damages if they believe the foreclosure sale was unlawful, although expect a long costly litigation fight from the bank.  In order to mitigate legal fee’s the first step is to report the issue to the Washington State Attorney General if you think you have been taken advantage of by the bank. For more information on remedies for an unlawful foreclosure you can license to attorney Richard Symmes discuss this topic on 1150 KKNW radio here:


Below are possible causes of action for damages if you think your property has been unlawfully foreclosed upon.

File a Claim under the Washington Consumer Protection Act (RCW 19.86)

In order to protect themselves from unfair and deceptive practices, consumers are allowed to bring private suits against individuals and businesses that engage in unfair or deceptive business practices.  The consumer may recover actual damages, treble damages ($25,000 maximum in most cases), and attorney’s fees.  Two types of actions may be brought under the law: 1) By the Attorney General or 2) By a consumer (under more stringent requirements).

What does a consumer have to prove to win a CPA case

In 1986, the Washington Supreme Court established the current five-part test for a private cause of action: the consumer must show:

  • an unfair or deceptive act or practice,
  • occurring in the course of trade or commerce
  • that affects the public interest and
  • causes harm to the consumers’ business or property (Damages)
  • Damages caused by the business actions.
    1. Emotional damages even if related to the business or property damage are not recoverable under the CPA
  • Courts have also ruled that Debt collection is subject to the WA CPA (Stevens v Omni Insurance – Div. I 2007).

File a Claim under the Breach of Duty of Good Faith under the WA Deed of Trust Act RCW 61.24.010(4)

The Washington state deed of trust act states that “The trustee has a duty of good faith to the borrower, beneficiary, and grantor.” Further, the WA supreme court has stated “Trustee’s have obligations to all the parties to the deed, including the homeowner: Bain v. Metropolitan Mortgage Group (2012).

File a Claim under Negligence or intentional Misrepresentation

In order to win a claim for damages under negligence theory a consumer would have to prove the following:

  • Defendant supplied information for use in a business transaction that was false
  • The defendant knew or should have known the information was supplied to guide the plaintiff in a business transaction
  • The defendant was negligent in obtaining or communicating the false information
  • The plaintiff relied on the false information
  • The plaintiffs reliance was reasonable
  • The false information proximately caused the plaintiff damages.

These are just some of the possible remedies for an unlawful foreclosure. If you are considering filing a lawsuit against your bank, you should be prepared to be able to finance such a claim and expect push back from the lender or trustee who filed the claim.  Claims can often be appealed and tied up in court for years, therefore stopping a sale before it happens through bankruptcy or a pre foreclosure lawsuit is ideal, with the ladder offering no gaurantees a judge will stop your sale.  if you want the closest thing to a sure thing to stop a foreclosure sale, filing bankruptcy due to the automatic stay may be the best way to go.

If you are in need of stopping an upcoming foreclosure sale, give Symmes Law Group a call at 206-682-7975 to get the counsel you need and learn about your options.  

How Do I Transfer Real Estate in a Probate?

How do I transfer real estate in probate

Dealing with the assets, real estate and belongings of a love one who has recently passed away is never easy. If the loved one who passed (“The Decedent”) had assets of over $100,000 in Washington State then their estate must go through a process called probate.  The purpose of the probate process is for the personal representative of the decedent to notify all potential creditors of the decedent of the passing, for creditors to make any claims to assets of the probate estate, and allowing the personal representative to liquidate and transfer any assets to beneficiaries of the decedent.  The First step being able to transfer real estate in a probate is to open a probate case and get a personal representative appointed.  Attorney Richard Symmes was on the 1150 KKNW talking about this topic and you can hear the full segment here:

(1) Open a Probate and Get a Personal Representative Appointed in the Probate Case to Transfer Real Estate in a Probate.

A probate case is typically opened in the Superior Court in the county where the decedent lived.  If the decedent had a Will, it would name who the chosen personal representative is.  This Will would be filed with the court along with a motion appointing the personal representative and an Oath of the Personal Representative.  If there is no Will, then a motion seeking to be appointed as the personal representative would need to be filed by a person petitioning to be the personal representative of the decedent. If the family and heirs are in agreement on who the personal representative should be and how assets should be distributed this process can go smoothly.  Otherwise, aspects of a probate can be adversarial. Once the motion is approved the personal representative will received “Letters Testamentary” or “Letters of Administration”. These letters will allow a personal representative to act on behalf of the decedent.   

(2) Provide Notice to all Beneficiaries and Known Creditors. 

Once a personal representative is appointed with non-intervention powers they will need to provide notice to any known beneficiaries and known creditors of the decedents estate.  This allows creditors to file claims in the case and beneficiaries to be put on notice of a possible distribution or the right to object to such an appointment or the handling of the probate matter. 

(3) Liquidate Assets and Transfer Real Estate in a Probate.

The personal representative is considered a fiduciary, meaning that they are accountable to the beneficiaries for their actions.  The personal representative is tasked with making sure the assets of the decedent including real estate, are bequeathed to the proper beneficiaries accordingly.  The personal representative may have the power to list for sale a property if it needs to be liquidated or transfer the property to beneficiaries.  The personal representative has the right to choose who to hire as legal counsel or as a real estate broker should they need assistance with the probate process or transferring real estate in a probate.  The transfer of property is typically done through a personal representative’s deed which transfer’s the property on behalf of the decedents estate to the proper beneficiaries or purchasing party. This deed is different than a typical warranty deed in which a title company would provide if the property is sold in a typical manner and goes through the title and escrow process. 

(4) Pay Creditors and Close Out Probate

Once all real estate and property has been liquidated and transferred to the proper beneficiaries and any creditors who have filed claims in the probate case have been paid, the probate case will be ready to close. Any funds or assets remaining prior to closing may then be distributed by the personal representative to the proper beneficiaries per the decedents will if applicable. 

(5) Close the Probate

One all assets and real estate has been liquidated or transferred and creditors have been paid, the personal representative may close the probate case and file a Declaration of Completion of Probate or report of final accounting. This report should contain information on who was paid what, expenses of the estate, and any transfers made to beneficiaries.

If you live in Washington State and need assistance with probate or selling or transferring real estate while involved in an active probate, give Symmes Law Group a call at 206-682-7975 to get the counsel you need.

What Happens After Filing Bankruptcy?

after filing bankruptcyOne of the most common questions that I am asked as a Seattle bankruptcy attorney is what happens after filing bankruptcy?  This is a loaded question and how things transpire after filing bankruptcy will depend on each case individually however I have compiled a list of what most debtors can expect.  I discussed this topic on 1150AM KKNW recently and you can listen to the full audio here:

(1) Do I have to Go to Court After Filing Bankruptcy?

Most Consumers who file bankruptcy will need to go to court one time for a 341 meeting of creditors.  This meeting generally lasts 5 minutes although you should plan to be at court for about an hour.  The purpose of the meeting is to allow the bankruptcy trustee to ask you questions about your assets and financial circumstances. Creditors may attend however that is usually unlikely unless a creditor wants to question you about your business affairs in order to prove some sort of fraud or ask about assets.

(2) Your Credit Will Improve Over Time After Filing Bankruptcy

When you file for bankruptcy, you must list all of your debts, collections, taxes etc. in your bankruptcy petition.  Most debt will be discharged (eliminated) once you receive a bankruptcy discharge from the bankruptcy court in about 90 days after filing in a chapter 7 case or after your plan is completed in a chapter 13 case.  One of the major factors affecting your credit score is how much unsecured debt you have and how much of your available credit lines are you using.  If all your debt goes down to zero, then you are no longer maxing out your credit and your scores will likely rise if they started out lower.  Yes it is true that a bankruptcy will show up on your credit report and can stay they for up to ten years, but for most 1 negative items is better than many other debt related negative items appearing on a credit report.  After receiving a bankruptcy discharge, consumers should review their credit reports to make sure everything is reporting correctly, showing closed accounts and zero balances.  It is advised post filing that you sign up for a secured credit account or two that will report positively to your credit after your case is filed and you can build up your scores from there.

(3) Will I be able to buy a car, a house or obtain credit after filing bankruptcy?

Yes!  Once of the most common comments I get from clients after filing for bankruptcy is “Why do I get so many offers to buy cars?” The answer is now that you have filed for bankruptcy, your credit score has likely improved and creditors know you cannot file for bankruptcy for several years.  When you file for bankruptcy the information is public record which is how auto dealers may obtain your information to send you mail.  The interest rate on the vehicles will of course vary but rest assured you will be able to get a vehicle post filing and most people get to keep the vehicle they already have should they choose to do so.  In terms of obtaining a home loan, most lenders will loan to you after it has been 2 years since you have filed for bankruptcy.  It should be noted that some apartment complexes do not like renting to bankruptcy filers but usually you can find somebody that will work with your situation.

(4) How Do I deal with non dischargeable debts after filing bankruptcy?

Some consumers have debts that are not dischargeable in bankruptcy.  These can include child support, some types of taxes, court fines, student loans or speeding tickets (Dischargeable only in Ch. 13).  For these types of debts, chapter 13 bankruptcy can allow for you to pay off these debts over a period of 5 years.  Outside of bankruptcy it is bet to negotiate a payment plan with the individual creditor and see if you can budget the payments to something that you can afford.

(5) What if a Creditor Contacts Me After Filing For Bankruptcy?

Creditors are forbidden from contacting consumers after filing for bankruptcy due to the bankruptcy discharge order.  With that said if you have a debt that is not dischargeable then a creditor can contact you regarding that debt and you should set a payment plan per #3 above.  If a creditor is contacting you post bankruptcy discharge when the debt should have been dischargeable it is likely they did not receive notice for one reason or another.  You should contact the creditor and provide them with your case number and filing date.  If they require additional information you can mail or fax them notice of the discharge and 99% of the time this will clear up any confusion.

(6) What if a Creditor is Still Reporting Negative Items on My Credit After Filing Bankruptcy?

If a Creditor is still reporting negative items on your credit report or an account is reporting as having a balance when it should show zero after filing bankruptcy you will need to dispute these items with the creditor and the credit bureaus reporting the negative items.  You should always send your disputes in writing through the mail in order to have any possible claims in the future.  Under the Fair Credit Reporting Act, if mis information continues to be reported you may have a claim and be entitled to $1,000 in damages.

If you live in Washington State and are considering filing for bankruptcy, give Symmes Law Group a call at 206-682-7975 to learn about your options.

How Can You Protect Yourself as a Real Estate Investor Washington State?

Protect Yourself as a Real Estate InvestorIf you are thinking about becoming or are a real estate investor in Washington State you will want to know how to protect yourself as a real estate investor to make sure that you set yourself up for success and minimize risk whenever possible.  With that said you will want to weigh the costs of having the maximum protection with what each option is actually going to do for you and the costs of such protection. Below I have outlined some common questions and answers and various information that can help you in your real estate investment business.  This is all meant to be general advice and you should consult your own accountant or real estate attorney should you have questions about your specific situation.

You can also listen to real estate investor attorney Richard Symmes on 1150 AM KKNW on how you can protect yourself as a real estate investor in Washington State here:

What is the easiest way to protect yourself as a real estate investor in Washington State?

At a minimum I would recommend that you hold property in an LLC and create a separate LLC for each property which would insulate each property from creditor claims against each business. An LLC provides for limited liability should a tenant or other party file a lawsuit against you or your business during a lease term or a rehab. Forming multiple LLC’s protects all the other properties from creditors of each property. This also keeps your personal assets safe and unreachable by a creditor.  However real estate investors should be aware of something called piercing the corporate veil in which an individual may be held liable even if you have formed a business. The best way to avoid this from happening is to make sure you keep all business activities separate from your personal activities and bank accounts and actually treat the LLC’s you have set up as a separate business from yourself.

Should I form a Series LLC in a state other than Washington to Hold Washington Property?

Washington state does not have a legal entity called a series LLC, however several other states do allow for the creation of a series LLC.  A series LLC allows for the owner to create one LLC holding company as a parent company and then as many other series businesses as part of a LLC stemming from the parent company. So it would be XYZ company which holds XYZ 1, XYZ 2, XYZ 3 etc.  This allows for the creation of 1 LLC and filing fee’s with the state of incorporate and as many other sub companies that you want in the series.

A series LLC can be useful if you own several properties so you can create numerous series companies within the same LLC.  With that said this type of business is not ideal if you just have a single or a few properties.  You would also have to keep in mind that if you form a series LLC in a state other than Washington, the business would need to have an agent for service in the home state in which the company was formed and you would likely have to pay taxes of the state in which you have formed the company if applicable.  Finally, you have to remember that Washington does not recognize the series LLC which may cause you issues down the road if there are disputes or litigation which require court intervention.

You would have to weigh these drawbacks with the cost to form several normal LLC’s in Washington and the fact that Washington does not have a state income tax.  Therefore, if you just have a couple properties my advice would be to just stick with a Washington state LLC. If you own numerous properties then I can see how a series LLC can be useful but it may not be worth the additional cost time and effort.

Is the Transfer of Real Property to an LLC Taxable? 

Most investors have to get a loan in order to invest in their next project and usually can get better interest rates if the loan is taken out personally and recorded against the property. This means that the property will initially be held in an individuals name and the investor will later want to transfer the interest to an LLC.

Do I have to Pay Washington State Tax on a property transfer to an LLC?

So, if you do transfer a property from an LLC, there is generally no Washington state excise tax associated with a quit claim deed transaction if there is no consideration (value) paid for the property. If there are taxes assessed it would be in accordance with the Washington Real Estate Excise Tax (REET). The tax also applies to sales or transfers of controlling interests in entities (e.g., corporations, partnerships, limited liability companies, etc.) that own real property. The exemptions to this tax can be found in the REET statutes, chapter 82.45 RCW, or in the rules or regulations adopted by the Department of Revenue, chapter 458-61A WAC.

Consideration means money or anything of value, either tangible or intangible, paid or delivered, or contracted to be paid or delivered, including the performance of services, in return for the transfer of real property. The REET applies to both transfers when two properties are exchanged and there is no exemption when the transaction involves an IRC §1031 exchange. Consideration also includes the amount of any lien, mortgage, indebtedness or other encumbrance given to secure the purchase price or remaining on the property at the time of sale, including the assumption of an underlying debt. A sale where the buyer assumes the underlying debt and pays no additional consideration is fully subject to REET.

Do I have to Pay Federal Tax on a property transfer to an LLC?

The answer to this question depend on how your LLC is taxed.  If it is a sole member LLC and taxed as a disregarded entity there will be no federal tax incurred.  If the LLC is taxed as a partnership or corporation the answer may be different based on several factors.  You should consult your accountant.

Will My Mortgage Lender Call My Note Due If I Transfer a Property to an LLC?

Most likely not, but the due on sale clause in your mortgage note (not in every mortgage note but most) is more likely to be enforced if you fall behind on payments.  The due on sale clause allows a mortgage company to call a note due in full should you sell or transfer your property so there is some risk to doing this.

The Garn St. Germain Act of 1982 addresses the basic conflict between homeowners looking to protect their assets, and the bank’s insistence that the homeowner buy the property in their own name. The Garn St. Germain Act prevents lenders from enforcing the due-on-sale clause when residential properties are transferred into a revocable trust and there is no change to the rights of occupancy.

It should be noted that if you have a loan that is not federally backed, then the Garn St. Germain Act may not apply.

Should I Transfer My Investment Property to a Revocable Trust or Land Trust?

A common question that many real estate investors have is whether they should transfer their property into a revocable trust or “Land Trust”.  A revocable family trust can include real estate as well as other assets set aside for beneficiaries vs. a “land trust” generally just includes 1 property held in the trust.  The main purpose of transferring property into a trust as a real estate investor would be to avoid the due on sale clause discussed above and for privacy as a trust is not a document that is filed publicly in your county’s recorders office.

States that don’t have specific rules for land trusts such as Washington state, simply govern them using standard trust laws based on the state laws available.  In almost all cases, the investors who establish a “land trust” are establishing a revocable trust. The land trust laws and trust laws in general are clear that a revocable trust does not give the grantor (the guy that sets up the trust and puts the property into the trust) any type of asset protection. It doesn’t matter who the beneficiary is. All trust laws state that if the trust is revocable, the courts can require the grantor, when they are sued for any reason, to “revoke” the trust and give the property in the trust to the grantor’s creditors.

The goal of the land trust is to make it look like you the investor do not have any real estate in your name if you are sued.  This is wishful thinking however as most attorneys and insurance companies may look into or ask questions through litigation discovery that could reveal who the true trustee or beneficiary is of the land trust and open you up to being discovered as the true owner. Think of the land trust as more of a smoke screen or costume designed to trick aggressive creditors into thinking you don’t own any assets of major value.

A land trust has three parts: a grantor, a trustee, and a beneficiary. When you choose to form a land trust, your lawyer can serve as your nominee trustee and you the real estate investor can become the designated beneficiary and eventually assign your interest to an LLC you own.  This allows the investor to reap the rewards of property ownership, such as investment income, without being publicly identified as the owner. The trustee’s role is to manage the trust itself and the investor should be named as the successor trustee once your initial trustee resigns so that the real estate investors name does not appear on any publicly recorded documents.

As you can see a land trustee can be very complicated and defeat the purpose of anonymity if it is not set up correctly.  Furthermore, keeping your assets in a land trust can cause issues when you try to sell or refinance your property as you most likely will have to transfer the property back to your personal name, the acting trustee or beneficiary prior to moving forward with refinancing plans depending on the situation.

Personally, I think going through this land trust process is more trouble than it is worth unless anonymity is of utmost importance. While it is nice if your name does not show up on public records for purposes of asset protection, this strategy can be easily defeated should a creditor initiate a lawsuit and delve deeper into your finances and holdings.  With that said, if you believe that creditors won’t file a lawsuit because they can’t find any assets in your name, this may be a worthy asset protection strategy.

If you live in Washington State and are looking for a real estate investment attorney to assist with the protection of your real estate, give Symmes Law Group a call at 206-682-7975 to get the counsel you need.

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How Do Mortgage Payments Work?

HowdomortgagepaymentsworkFiguring out what you owe on your mortgage can be very difficult, especially when you likely have to go in circles with your loan servicer to get a competent person to answer the phone with regard to how your mortgage payments work. I discussed this topic on 1150AM KKNW recently and you can listen to the entire conversation here:

For most people, their mortgage is their biggest debt that they will ever have and their home is their most important and expensive asset that they will ever own. Surprisingly, the people accounting for your payments are increasingly incapable of the very basics of their job.  These days, it is very common for home loans to get sold to another owner the moment the deal closes. It is even more common for your note to get sold into a trust with many other loans without you having a say in the matter. The right to collect the loan payments is bought and sold separately from the right to the payment amount which is usually handled by a separate loan services.

Increasingly, the servicers are making mistakes as they cut corners for the almighty dollar at your expense and it not uncommon for your services to change several times over the lifetime of the loan.

So what do you need to know to assess whether your loan servicer has got the numbers right?

1. Principal balance isn’t always what you owe

For most people if you ask somebody what they owe on their mortgage they will recite the principal balance. The principal balance is the remaining part of the amount originally borrowed that is still unpaid. With that said, it’s possible you owe other fee’s that you may not be aware of such as delinquent payments that are mostly interest, late fees, escrow advances, or junk fees that most delinquent loans consist of in the form of penalties.

Finding the principal balance gets even trickier if the loan has been modified to include a non-interest bearing amount or some other out of the ordinary adjustment. So the amount necessary to pay off the loan upon sale, or refinance, may very well include charges from past delinquencies plus fees for calculating what you need to pay to satisfy the debt in full.

2. Payments are credited to oldest month unpaid

If you fall behind on a mortgage, then resume making payments, your payment will likely be credited to the oldest month still unpaid.
So the payment you make in March 2017 may be credited to July 2016 if you missed a payment back in July 2016.  The servicer will then report that you remain due for July 2016, even though you sent a check in March 2017.  It’s all in the rules about how payments are credited under the terms of the note that you signed when you closed on your home and financing documents that you probably did not read closely at that time.

3. Payments may not be credited

Loan servicers usually have a separate super secret account labeled “Suspense” into which they sometimes dump your payment.  Of course they don’t tell you this when you sign your loan documents. The bank usually has your money, they just haven’t credited it to the amount you owe when the funds are in a suspense account.

Usually the only reason for putting funds in a suspense account is when the payment submitted is too little to make a full payment on the monthly loan amount. Servicers are not required to credit partial payments to your account. Therefore, they put the money in suspense until they receive enough money to make the usual payment.  Suspense accounts can often contain errors of unapplied funds in the tens or even a hundred thousand dollars so this is the first place I would check if it looks like you are being reported delinquent on a mortgage payment.  Therefore, a mortgage statement that doesn’t address any funds held in suspense would not tell the whole story.

4. Escrow accounts contain something extra

If your local property taxes and hazard insurance are paid by the lender, you have an escrow account. Under federal law, the lender is allowed to collect more than the sum of the year’s taxes and insurance as protection against the borrower’s non payment. The extra money, the “cushion”, can be no more than 1/6th of the annual expenditures. It remains your money, it’s just held by the servicer should the servicer have to make the payment on your behalf should you not be able to pay.

You should also get an annual escrow analysis that shows income and expenses in the past year’s escrow account and a projection of the coming year’s expenses. That projection will determine what you pay in escrow payments going forward.

5. Statement doesn’t come from owner of note

Now that it is common for loans to be bundled up and sold on Wall Street to investment trusts, the work of collecting your payments has been handed off to loan “servicers”.  The owner of the note (likely a trust) pays a company to deposit your payments, keep track of fees and expenses, and take action if you don’t pay. The servicer rarely owns the note, they just have the right to collect the money.

Servicers change and they change quite often.  When there’s a loan handoff from one servicer to a new servicer, details about anything unusual in the loan account sometimes gets lost. You should review your monthly statement. The problem of finding out what the servicer thinks you owe became such a problem that regulations written pursuant to the Dodd-Frank act gave borrowers some protection. Now, a borrower with a home loan can make a Request For Information about their loan and expect answers within a shorter period than under the old law.

If the servicing of the loan has changed to a new company, the borrower has a window in which to request information from the old servicer, to compare with what the new servicer thinks.

If you live in Washington State and are looking for assistance with a loan modification or foreclosure defense, give Symmes Law Group a call at 206-682-7975 to speak to a bankruptcy attorney and learn about your options.

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