Seattle Bankruptcy News - Symmes Law Group

Should I Use National Debt Relief to Settle My Debts?

National Debt ReliefIn my debt relief practice I am coming across more and more consumers who have used National Debt Relief to help them manage their debts and negotiate settlements on their behalf, only to regret the decision to sign up with National Debt Relief at a later date.  With that said National Debt Relief is licensed in the State of Washington and appears to be complying with the Washington Debt Adjusters Act under RCW 18.28 which requires debt adjustors to charge no up front fee’s and limit their fees to 15% of the total debt listed on the signed contract which includes payments for any third party trust accounts used for holding client funds and making disbursements.  If a consumer decides to cancel services with National Debt relief and debts are not settled, any funds in a third party trust account must be refunded.  Consumers should know that attorneys such as Symmes Law Group, PLLC are exempt from the Washington Debt Adjustors Act and do not need to meet its requirements as attorneys are not considered debt adjustors.

It is also important to know that National Debt Relief uses a company called Global Client Solutions to manage your payments as a third party processor and trust account servicer.  This company has a history of working with many debt settlement companies who have been sued in the state of Washington and across the country for violating various debt adjusting and consumer protection laws.  Global Client Solutions has also been sued itself on a national level by the Consumer Financial Protection Bureau and in the state of Washington.

At the very bottom of the National Debt Relief website you will find a disclosure in very small print which reveals what you might expect working with National Debt relief.  The disclosure states that:

Clients who are able to stay with the program and get all their debt settled realize approximate savings of 50% before fees, or 30% including our fees, over 24 to 48 months. All claims are based on enrolled debts. Not all debts are eligible for enrollment. Not all clients complete our program for various reasons, including their ability to save sufficient funds. Estimates based on prior results, which will vary based on specific circumstances. We do not guarantee that your debts will be lowered by a specific amount or percentage or that you will be debt-free within a specific period of time. We do not assume consumer debt, make monthly payments to creditors or provide tax, bankruptcy, accounting or legal advice or credit repair services. Not available in all states. Please contact a tax professional to discuss tax consequences of settlement. Please consult with a bankruptcy attorney for more information on bankruptcy. Read and understand all program materials prior to enrollment, including potential adverse impact on credit rating.”

What Does this National Debt Relief Disclosure Mean?

If you enroll with National Debt Relief they state that you can expect to save potentially 30% on average and that does not include paying taxes on debt forgiven over $600.  Additionally what they don’t mention is that to obtain a favorable settlement you will need to stop making payments on your debts which will increase you total debt in the short term, hurt your credit, and open you up to potential lawsuits and debt collection phone calls due to non payment.

The potential to be sued for debts due to non payment is what causes consumers to reach out to a debt settlement attorney to learn further about their options. In my experience consumers typically accuse National Debt Relief of not settling their debts in time to avoid the lawsuit or not informing them that they could be sued on the debts when it all could have been avoided in the first place had the consumer talked to a debt relief attorney from the beginning of their financial problems.

Is Using National Debt Relief a Good Idea?

For most people I would say that signing up for National Debt Relief is not a good idea. While on its face, having you pay no up front fees with the goal of making you debt free in 2 to 4 years sounds great.  However the truth is there may be better options which can accomplish the same goals for a lower cost and that have less of an impact on your credit and your sanity from being sued by a debt collector.  Debt settlement in my opinion is best suited for people who have already been delinquent with their debts and have lump sums to offer up front to negotiate settlements of 50% or less in many cases.  Otherwise chapter 7 bankruptcy or chapter 13 bankruptcy may be the best fit to eliminate debt or pay off debt over a 3 to 5 year repayment plan and avoid being sued by a lawsuit.

Finally, if you do want to proceed with a debt settlement program I would always advise using somebody local or a debt settlement attorney who can help you in a similar fashion as National Debt Relief and likely save you on fees associated with the settling of your debts without the worry of thinking about whether you are being taken advantage of as attorneys are regulated by their states bar association and are subject to rules of professional conduct in order to maintain their bar license.  Additionally a local attorney can take creditor calls and assist with defending a debt collection lawsuit and settling the case prior to any judgment as part of services offered.

You can check out a full review of the National Debt Relief program by Nerd Wallet HERE.  

If you live in Washington State and are considering hiring National Debt Relief or are looking to settle your debts, give Symmes Law Group a call at 206-682-7975 to learn about your options first.

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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 Can You Sell Your House Before it is Foreclosed On?

Sell Your House Before it is Foreclosed OnIf you are suffering from financial hardship and facing home foreclosure, you may be able to sell your house before it is foreclosed on in order to avoid having a foreclosure sale report on your credit report and walk away with some of the equity you have built up over the years.

Living in the Seattle metro area, you would have to have had your head buried in the sand to not know that the Seattle metro area is the fastest growing city in America causing house prices to skyrocket.  This means that if you purchased your house more than a few years ago, you likely have a significant amount of equity in your home. With that increase also comes the increase in property taxes that you are now responsible for based on your homes’ tax assessed value with the county in which you live.

While most of the people I talk to on a daily basis suffering from financial distress are looking for ways to keep their primary residence if possible, many in fact would not mind selling the home if they are able to do so prior to a scheduled foreclosure sale. These consumers can use proceeds from the sale to pay down debts, use the equity as a nest egg or a down payment on a future less expensive home, perhaps in a lower cost of living area such as eastern Washington, Bremerton or even Phoenix, Arizona just to name a few.

If you are considering selling your home and under financial distress you should start planning your exit strategy as soon as possible to maximize the equity you are able to get out of your home. This is because once a minimum of 180 days go by of non-payment you could be facing a foreclosure sale, in which case you will lose significant equity that you could have saved to legal fees of foreclosing attorneys, possibly your attorneys to prevent a foreclosure through applying for a loan modification or bankruptcy, or having to sell the property at a bargain basement price just to avoid a foreclosure sale. If you don’t see your financial circumstances changing by the time you receive a notice of trustee sale, it may be time to list your property on the open market through. If however you do want to keep your home and think you will be able to afford the future payments or make up arrears applying for a loan modification, going through foreclosure fairness mediation, or filing a chapter 13 bankruptcy may be advisable.  These options can also delay a foreclosure sale for a significant time or buy time to work things out with selling the property.

Unfortunately, most people are not that proactive when it comes to digging their way out of financial distress and most are eternally optimistic about retaining a home.  So if you have waited until the last 30 days prior to a scheduled foreclosure sale or you already have had a loan modification denied or a bankruptcy case dismissed, you will need to act fast as most purchase and sale real estate transaction take at least 30 days to close under normal circumstances.  This is because the property must be ready to list and go through the escrow process of clearing any liens and getting payoff letters from lenders in default. In the days approaching the foreclosure sale date you will most likely receive a few cash offers to purchase your property, however these offers will be from investors looking to either make a profit flipping your home or renting it out.  The general rule for investors is that 1% of the purchase price should allow for that amount to be had in rents.  This is in contrast to investors who would flip the property for a profit may pay up to 70% of the fair market value which may still be profitable.  A seller on the other hand would profit the most from a buyer who wishes to live in the property and build up equity over the long term. Unfortunately, a person looking to live in the property does not have all cash available to close on a deal quickly and any offers they make will likely be contingent to them obtaining financing.  Therefore, you would be left dealing with speculators and have to accept that you would have to sell at a price that is well below the fair market value.

What Happens If I Let A Property Foreclose?

If you take no action or make no deal with anybody prior to a foreclosure sale, your property will head to the county auction.  Here investors will bid against each other for the right to purchase your property.  If there are no bids, then the bank gets the property and can sell it on the open market.  Auctions mostly consist of professional investors or representatives from banks or companies as any winning bids need to be paid in cash at the time of the auction.  It is also likely that most consumers would be outbid by companies or professional investors who work in the space as they generally have more resources, however at the end of the day everyone needs to decide if the property being bid on would be a good investment as the properties are bid on site unseen.

Once the winning bid is paid, the bank and any other junior lienholders would be paid in order of recording position. If there is not enough funds to pay everyone, then the junior liens would be wiped out as to the property, but not to the original owner who owed the money on a non first lien on a primary residence.  If the winning bid exceeds the moneys owed recorded against the property, then the excess funds are placed with the county superior court. As the former owner you can apply to claim these funds as can any former owners or lien holders who may have an interest in the funds.  Therefore, its possible you could still get some equity out of your property if all the debt is paid off by the highest bidder however, as previously mentioned there are attorney fee’s/bank fee’s/HOA fees incurred for having to go through a foreclosure and then you may need to hire an attorney to obtain the funds out of the court by making a claim to the funds and providing notice to anyone else who may have an interest.

Additionally, by allowing the home to foreclose you will have a foreclosure listed as a public record on your credit report which will hurt your credit score and ability to obtain favorable credit.  You may also have to wait 3 years to get a new home loan post foreclosure sale.

What if I don’t Have Enough Time to Sell My House Before It is Foreclosed On?

It is advisable to avoid foreclosure if at all possible, therefore many consumers end up filing a chapter 13 bankruptcy in order to delay a foreclosure sale. Chapter 13 bankruptcy can be filed at any time prior to the scheduled sale date to stop the sale. With that said, filing chapter 13 does leave a public record on your credit report and can prevent you from getting a future home loan for 2 years.  The benefit of filing the bankruptcy is that it could buy you time to list your house for sale on the open market to obtain the best offer available from a consumer who may want to live in the property.  Going through foreclosure fairness mediation also delays a foreclosure sale without having to file bankruptcy but it requires planning as it can only be requested at the latest, 20 days of receiving a notice of trustee sale date.

Therefore, in order to extract the most equity out of a distressed property a consumer should list their property on the MLS rather than on the eve a trustee sale date.  With that said, a consumer can delay a trustee sale in order to extract the most equity out of a property if they are proactive and act early or are open to chapter 13 bankruptcy.  Alternatively, if the ability to purchase a home in the future is of primary importance, selling your property to an investor for below market value may make the most sense and provide the most convenience if you are willing to sacrifice some equity.

If you live in Washington State and are looking for a real estate attorney to assist with a real estate transaction or prevent a home foreclosure, give Symmes Law Group a call at 206-682-7975 to get the counsel you need.

10 Things You Need To Know About Probate in Washington State

Probate in Washington StateProbate in Washington State is a court supervised procedure by which the ownership of property of a deceased person (the decedent) is determined.  Probate takes place in in Superior Courts of each county across Washington State.  The purpose of probate proceedings is to permit the decedent’s Personal Representative to take possession, protect and preserve the decedent’s property; pay all debts, claims and taxes necessary to settle the decedent’s affairs; and to distribute the decedent’s property to the rightfully entitled recipients. Typically a decedent has named who their personal representative will be in their Will and that person, usually with the assistance of an attorney, can open a probate case and become officially named as the personal representative.  Below is a list of 10 things everybody should know about probate in Washington state.

(1)   If the Decedent’s estate does not contain real estate or is worth less than $100,000, then the decedents estate does not need to go through probate.

  1. If you still need to transfer assets, Washington state allows the personal representative to complete a Small Estate Affidavit after 40 days have passed since the date of the decedents death.
  2. Personal representatives can mail or deliver the affidavit to the holder of the property.
  3. It is a good idea to consider filing and publishing a Non-probate notice to creditors which can shorten the statute of limitations on any claim from two years to four months.
  4. Its also a good idea to file an original Will with the Superior Court after 30 days after receiving notice of the death, even if there is no probate case.

(2)   The Washington State Department of Licensing has its own form for the transfer of vehicles when no probate has started.

  1. It’s called an affidavit of Inheritance/litigation

(3)   If the Decedent owned real estate, then a probate case must be filed in order to sell the real estate and obtain testamentary letters to transfer assets.  The court filing fee is $240 in King county and attorney fees can vary based on the size of the estate, potential creditors, and whether there is the possibility the probate process will be contested.

(4)   It is helpful if the Decedent had a last Will clearly naming a personal representative that allows for non-intervention powers.  This allows a personal representative to liquidate and distribute assets according to the last will without other family members possibly challenging the choices of the personal representative.

(5)   Documents that will be needed in order to start the probate process will be the filing of a petition for probate of Will, Solvency & Non intervention powers, death certificate, an Order for the court to sign, Oath of Personal Representative agreeing to take on the duties, a notice to creditors and a filing of the original last will that includes at least 2 witness signatures.  Other documents may also be required depending on the circumstances.

(6)   All potential heirs, beneficiaries, legatees, and devisees must appear in the verified petition of probate.  Listing only the beneficiaries under the Will is not sufficient.

(7)   If the Decedent was married, consider which assets are community property and which are separate.  It is presumed that an asset acquired during marriage is community but separate property may need to go through probate prior to spouses death if it is considered separate property.

(8)   Proceeds from retirement or life insurance account with transfer on death provisions can be administered without having to go through probate.

  1. Consider filing a transfer on Death Deed for your home to avoid the probate process. A new law in Washington created in 2014 now allows for this type of deed to be recorded.  This deed can be filed anytime and can be revoked anytime prior to death.  This would allow for the immediate liquidation or transfer of the home, without having to go through probate.

(9)   Assets placed in a revocable trust will also avoid the probate process as they have already been transferred to the trust which name specific beneficiaries.  There may be tax implications of transferring an asset so talk to your accountant before taking action.

(10)  As of 2018, estates that are worth $2.193 million will not be subject to Washington State taxes and estates worth less than $11.2 Million for a joint couple or $5.1 Million if single will not be subject to Federal Estate taxes.

If you live in Washington State and are looking for a Seattle probate attorney to assist with filing a new probate case, give Symmes Law Group a call at 206-682-7975 to start the probate process today.

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Can A Seller Keep Buyers Earnest Money?

keep earnest moneyIf you are involved in a real estate purchase and sale agreement where a potential buyer has backed out of an offer to purchase a property, you probably want to know who can keep buyers earnest money that was offered as part of their purchase offer.

What is Earnest Money?

Earnest money is a deposit a home buyer submits with an offer to buy a property.  The purpose is to show a buyer that you are serious about purchasing the property and the higher the earnest money amount is, the more likely it is that your offer will be accepted.  “Earnest” is an old fashioned word to mean your “serious” about purchasing a property.  The earnest money funds can also be referred to as a “good faith” deposit and are often held by a third party escrow company as part of the purchase and sale transaction.

How Much Should A Buyer Offer in Earnest Money?

The amount to offer in earnest money really depends on the type of transaction you are involved in and the competitiveness of the market you are in.  The Seattle Metro market is currently hyper competitive so it would be advisable for a buyer to offer more in earnest money if they really want a property so show the buyer you mean business. Typically it is normal to see an earnest money deposit of 1-3% of your offered purchase price but keep in mind, having a higher earnest money offer could make the difference of a seller accepting an offer or not.

What Happens to the Earnest Money if the Purchase and Sale Transaction is Not Completed?

If an offer to buy a home is accepted by a seller, then the earnest money paid as part of the offer would be applied to the purchase price.  If however, the buyer backs out of the sale or the seller changes their mind, that could trigger a series of events that would leave the earnest money paid in flux.

Most purchase and sale agreements in real estate include several contingencies that allow a buyer to back out of a transaction and allowing the buyer to receive their earnest money back.  These contingencies include stating that the offer is subject to the buyer obtaining mortgage financing within a certain time period or home inspections that could reveal defects in the property.  In a hot real estate market such as Seattle, Washington, buyers are increasingly making all cash offers and waiving contingencies in order to get their offer accepted by sellers.  This is very beneficial to sellers as they could now be in a better position to be entitled to the earnest money should the sale not go through.

Earnest money deposits are governed in Washington, State by RCW 64.04.220. Should the purchase and sale transaction not go through it would be up to the party who feels they are entitled to earnest money paid to make a written demand for all or any part of the earnest money held by the holder (typically Escrow Company).  The holder must then within fifteen days of receipt of the written demand:

(1) Notify all other parties to the transaction of the demand in writing

(2) release the earnest money to one or more of the parties; or

(3) Commence an interpleader action.

RCW 64.04.220 further states that “the holder’s notice to the other parties must include a copy of the demand and advise the other parties that: (a) They have twenty days from the date of the holder’s notice to notify the holder in writing of their objection to the release of the earnest money; and (b) their failure to deliver a timely written objection will result in the holder releasing the earnest money to the demanding party in accordance with the demand upon expiration of the twenty-day period. The holder’s notice must also specify an address where written objections to the release of the earnest money must be sent.
(4) The twenty-day period commences upon the date the holder places the holder’s notice in the United States postal service mail and sends an email …”

What is an Interpleader Action?

An interpleader action is a civil action, much like a complaint filed to begin a lawsuit in which the holder will initiate a legal case in civil court naming the buyer and seller as defendants in which they can litigate a case over who is entitled to the earnest money paid while the holder is entitled to a reasonable attorney fee for having to file the interpleader action.  The earnest money in question will be deposited with the court where the interpleader action is filed.

Ideally the buyer and seller will be able to work out any problems among themselves before having to deal with an interpleader action and potentially incur further costs, however some disputes may not be able to be resolved causing this issue to have to be litigated within the civil court.

If you live in Washington State and are looking for assistance with dealing with a purchase and sale agreement gone wrong involving who can keep earnest money, give Symmes Law Group a call at 206-682-7975 to speak to a real estate attorney today.

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How Will the New Tax Laws Impact Bankruptcy Filings?

Tax Laws Impact Bankruptcy FilingsThe new United States tax laws which could impact future bankruptcy filings was signed into law on January 3, 2018. The new law brings with it many changes that will affect consumers as well as businesses. In general, the biggest impact may prove to be on businesses, however there are some important changes that will impact the majority of American taxpayers and future bankruptcy filers.

Consumers who are contemplating filing bankruptcy under chapter 7 or chapter 13 bankruptcy may feel an impact if they are above median income earners who need to pass the means test to qualify for bankruptcy or who may seek lower plan payments in chapter 13 bankruptcy. This is because in general, for most higher earning Americans, they will likely receive a tax cut in the immediate future which will make available more disposable income in which to pay to creditors through a chapter 13 bankruptcy, or give less of a deduction on the bankruptcy means test.

How does the Means Test Work in Bankruptcy?

The means test determines how much disposable income a person has to pay their creditors. If this number is zero, then there is a good chance you could qualify for chapter 7 bankruptcy. If the number is higher, then you would likely to file chapter 13. In chapter 13 bankruptcy you would then seek to make your available disposable income lower by taking allowed deductions, similar to doing your taxes, on the means test. These deductions are often calculated from your paystubs and include things like your federal taxes, Medicare, social security etc. Therefore, if these amounts are less in the future, then you won’t get as much of a deduction on the means test.

The good news is that a consumer will have more disposable income in which to possibly avoid filing bankruptcy, although for most people, it probably will not make a significant difference. For lower income earners who are already below the median income, the impact from a bankruptcy standpoint will most likely be negligible.

So what are the 2018 Major Changes to the Tax Code Moving Forward?

1. Your income may put you in a different tax bracket
Tax brackets have changed under the new tax law. Taxpayers will want to look at the changes and what they mean for those filing single and those filing jointly. Take a look at all of the new tax brackets and tax percentages here.

2. A majority of American taxpayers will benefit from lower tax rates
For example, single taxpayers earning between $38,701 and $82,500 will reduce their tax liability from 25 percent to 22 percent. Additionally, those joint filers earning between $165,001 and $233,350 will get a reduction in tax liability from 28 percent down to 24 percent. For five additional tax brackets, there will be reductions of 3 percent or more. To illustrate the potential savings on higher earning households, consider that a family earning $233,350 would potentially reduce their tax liability by more than $9,000.

3. The standard deduction goes up and the personal exemption goes away.
The new tax plan increases the standard deduction from $6,350 to $12,000 for individuals and from $12,700 to $24,000 for married couples. The personal exemption has been eliminated. The net effect is a modest increase in the overall tax savings for those taxpayers who did not previously itemize deductions.

4. Tax preparation fees are no longer deductible
You can no longer write off your previous year’s tax preparation fee. Previously the fee you paid a professional to do your taxes was an eligible deduction.

5. You can no longer write off mileage if you are a W-2 employee
Previously, mileage had to exceed 2 percent of your adjusted gross income (AGI) in order to write it off, but now even if that 2 percent is met or exceeded it cannot be written off against income.

6. Taxes on business owners has changed
If you own a business, you will now have a flat tax of 21 percent, instead of the 35 percent tax rate that was previously in place. This results in a huge tax savings for business owners. The idea is that the savings will trickle down to employees of these companies but only time will tell if consumers will benefit or this tax break just makes companies richer.

7. The child tax credit will go up from $1,000 to $2,000
If you have a child living with you who was under the age of 17 at the end of the year you qualify for this deduction. This change also increases the income threshold at which the credit gets phased out to $400,000 for married taxpayers and $200,000 for others. This could mean significant savings for taxpayers with large families.

8. Medical and dental expense deductions have been expanded
While the percentage has gone up and down over the years, the most recent requirement was that your medical and dental expenses had to exceed 10 percent of your adjusted gross income (AGI) in order to write them off against your income. Now, they must only exceed 7.5 percent of your AGI for you to be able to deduct them.

9. Alimony is no longer deductible or taxable
Under the new tax law, alimony will no longer be deductible against income for the person paying it, nor will it count as taxable income for the person receiving it. This change is effective for divorce decrees signed after January 1, 2019.

10. Entertainment expenses can no longer be deducted, but meals can
The deduction for business-related entertainment has been repealed as part of the new tax plan. Businesses can still generally deduct 50 percent of the cost of qualified meals.

11. There are lower limits on mortgage interest deductions
Securing a good mortgage interest rate may matter more now than ever. This Is because home mortgage interest for debt incurred after December 15, 2017 to acquire or improve a home, is now limited to the interest on $750,000 worth of principal. This is a decrease from the prior $1,000,000 principal limitation and applies to both primary and secondary residences. Home loan debt acquired prior to December 15, 2017, is grandfathered and this change does not apply. This provision could affect Washington consumers more than in other states as the rise in property values continues and the median household value in Seattle is above $750,000.

12. There is a limit on interest deductions for home-equity lines of credit (HELOCs)
Like primary mortgage loan interest, the interest on HELOC loans has also been impacted by the new tax law. Interest on these loans will no longer be deductible, regardless of when the loan was acquired, unless the funds are used explicitly for home improvements or acquisitions.

13. There are now limitations on property, state and local tax deductions (“SALT”)
Taxpayers’ state and local tax deductions will now be capped at $10,000 under the new tax legislation. Meaning, if you itemize deductions on your taxes, you will be able to deduct your state individual income, sales and property taxes up to a limit of $10,000, but you’ll have to choose between property tax and income or sales tax. All three cannot exceed that $10,000 amount. This reduction will also impact Washington consumers negatively as the state and local taxes are rising sharply in 2018 to over 17% in some areas and the net result will be less of a deduction if taxes exceed $10,000.

14. The estate tax exemption is doubled
The new tax law doubles the estate tax exemption to $11.2 million for single filers and $22.4 million for joint filers. This change will only affect the roughly 1 percent of the American population that pays estate taxes.

15. The Obamacare medical tax is no more
The new tax legislation eliminates the individual health care mandate penalty tax that was imposed by the Affordable Care Act (aka, “Obamacare”) beginning in 2019. However, The penalty tax will remain in effect for the 2018 calendar year.

16. “Like-kind” exchanges are limited
Like Kind Exchanges under Section 1031 of the Internal Revenue Code are now limited to exchanges of real property. They no longer apply to any other property, including personal property associated with real property.

17. Education tax credits, student loan interest deductions remain
Many of the 44 million Americans with student loan debt feared that these changes could be devastating. However, the ability to deduct student loan interest will remain intact in the future.

18. The use of Section 529 accounts has been expanded
This may be one of the most significant impacts of the tax reform on education. Section 529 accounts, which are tax-advantaged savings and prepaid tuition plans designed to encourage people to save for future college costs, have been expanded. Starting in 2018, these accounts can be used for tuition at public, private or religious schools in addition to college tuition. Section 529 will be limited to $10,000 per student during any taxable year.

If you live in Washington State and are looking for assistance with figuring out your bankruptcy or debt settlement options, give Symmes Law Group a call at 206-682-7975 to speak to a debt relief attorney today.

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Are Washington State Consumers Headed for Bankruptcy in 2018?

consumers headed for bankruptcy With the stock market and the economy at an all-time high, how are Washington state consumers really doing day today and are consumers headed for bankruptcy in 2018? As a Seattle bankruptcy attorney, I have a good idea of how every day Washingtonians are doing in the current economy. While Seattle has grown in size and wealth in the last 5 years, so has the cost of living, driving many consumers to pick up and move or file for bankruptcy just to stay afloat.

Recent national statistics and economics support a theory that the economy simply cannot keep going the way it is going forever. In fact, in the last 5 years wages have remained stagnant, while most types of debt ballooned out of control. Prior to the financial crash, there was a 65% percent increase in overall debt, mostly attributed to mortgage accounts that consumers could not afford, while there was not a whole lot of growth in other debt areas according to the Bureau of Labor Statistics.

After the financial crash of 2008 and in the following 5 years, America has seen significant increases in auto loans (78% increase) and student loan debt (72% Increase), while credit debt continues to rise to pre-financial crash numbers. So, with stagnant wages and increased costs of living, there is now likely the lowest available disposable income in recent history available to the average person in which to service these debts or set aside savings for retirement.

So What Are Options for Washington State Consumers to Deal With Debt?

(1) Move to a lower cost of living location

While this may not be preferred, it is a product of the economy we live in. Native Seattleites and millennials are being pushed out from the city in Search of more affordable housing in order to service their debts. Many are moving back in with parents or moving to a different city or different state as Seattle is now the 6th most expensive city in the country.

(2) Eliminate Your Debt Through Bankruptcy

If you have decided that you are staying in Seattle or a similarly expensive city, whether it be for work or personal reasons, then you need a plan to create more disposable income in which to save for retirement or perhaps for a down payment on your own home, which these days is likely cheaper than renting an apartment with the added benefit of building equity as the economy continues to grow. This way you have your money working for you, rather than you working just to pay rent.

If you qualify, you can eliminate unsecured and unwanted credit, medical, auto loan debt, setting you up for a future in which you can buy that home, perhaps even in a year or two from the date you file a bankruptcy case. Most debts will be eliminated setting you up for a fresh start. In a chapter 7 bankruptcy your case could be completed in 90 days whereas a chapter 13 bankruptcy repayment plan last 3-5 years and is usually filed by those who’s income is higher than the states median income and they don’t qualify for chapter 7 or they are looking to make up payments they fell behind on a house. The amount you would need to pay back is based on your available disposable income determined by something call the means test. Either way, you would be setting yourself up for a fresh start in the future.

(3) Settle your Debts for Less Than the Full Balance

If you have savings or help from family, you are delinquent on your debts, and have a hardship for why you can’t make monthly payments, you may be able to negotiate settlements of 50% or less on certain unsecured credit debts. In general credit unions are harder to negotiate with as well as medical but it still may be possible if you have a lump sum payment to offer. This is better than just making monthly payments that continue to accrue interest increasing the amounts you pay out.

(4) What about Student Loans?

If you are part of the 78% massive increase in student loan debt over the last 5 years from the crash then you are probably wondering what you should do with your student loans. All types of student loans in most cases are not dischargeable in bankruptcy. Therefore, for federal student loans I would advise signing up for an income based repayment plan where you get credit for your payments every year and they will be eventually be forgiven after 20-25 years depending on the plan you qualify for. There is also public service forgiveness where they could be forgiven in 10 years if you qualify and if the government does not meddle in this program to take this option away. If you are on a plan you should not be paying more than you can afford and you can go back to living your life.

If, however your student loans are private, these are some of the worst types of debt you can have as banks are not required to give you an income repayment plan or reasonable repayment plan. Therefore, I would advise, if at all possible, eliminating these debts as fast as you can. In many cases these debts will settle significantly lower than the full balance, so a lump sum settlement is the best way to knock these out, otherwise they could linger for many years. If you do have good credit you could check to see if you qualify for a loan or other refinance program to see if you can raise funds to get out of these student loans. At least other loans may not be subjected to being non-dischargeable in bankruptcy.

(5) Don’t Buy Cars You Can’t Afford

Yes, I know, everybody wants the latest and greatest cars, but is it really worth it. Auto debt has skyrocketed out of control at higher interest rates and many consumers putting loans on top of loans when they trade in a vehicle, making the vehicle significantly under water the moment you walk off the lot. Keep your payments reasonable and if you can’t afford the car or it is significantly under water you can give it back and consider bankruptcy options to start fresh so this debt won’t continue to follow you and balloon out of control.

While the economy seems to appear to hum along and be on the upswing, eventually I believe as do many economists, that the market must correct, and when it does, many consumers will be left holding the bag. While it may not happen tomorrow, it could happen in 6 months, a year or two years and by unknown or known events. Consumers should prepare for that day now and set themselves up for success in the future by knowing about their options now.

If you live in Washington State and are looking for assistance with figuring out your bankruptcy or debt settlement options, give Symmes Law Group a call at 206-682-7975 to speak to a bankruptcy attorney today.

How Do I Get Approved For a Loan Modification?

How to get approved for a loan modificationIf you have become delinquent on your home mortgage you are probably searching for options for how you can avoid foreclosure, get approved for a loan modification and make your mortgage payments more affordable to keep your home.  If you have been delinquent in your mortgage payments for at least the last 90 days, your bank servicer may have mailed you a notice of pre-foreclosure options or even a notice of default or notice of trustee sale. These are the first steps in the foreclosure process in Washington state, but as the notice of pre-foreclosure options and notice of default tell you, you may have options to retain your home and one of those options is to get approved for a loan modification.

A loan modification can help you reduce your interest rate on your mortgage payment, allow arrears to be placed on the back end of a loan, or even lowers your overall mortgage payment.  So why would a bank agree to a modification? The answer is because it is cheaper for the bank to give you a modification rather than foreclose on your home.  With that said, a loan modification is not guaranteed just because you apply and the bank has several guidelines that they will use to evaluate whether it is in their best interest to approve you for a loan modification.

After the housing crash of 2008, the government created a program called Home Affordable Modification Program (HAMP) which allowed for banks to adjust mortgage payments to 31% of a borrower’s income.  This program was phased out at the end of 2016 and replaced by a program called the Flex Modification program which applies the same measures, but it allows lenders to also consider how many days delinquent borrowers are and the value of their home.  The flex loan modification program aims to reduce monthly mortgage payment by 20% for eligible borrowers.

What are the requirements to get approved for a loan modification?

(1)   You mortgage must be owned or guaranteed by Fannie or Freddie Mac.  Loans from FHA, VA or USDA do not qualify.

(2)   Your mortgage must be at least a year old.

(3)   The mortgage you are trying to modify must be in first position on your home.

(4)   You must be at least 60 days delinquent on your mortgage payment.

(5)   The mortgage loan must not have been modified 3 or more times.

(6)   You must submit a borrower response package provided by your loan services as well as a completed 4506T form requesting a copy of your taxes, last filed tax return, a letter of hardship as well as proof of your last 60 days of income and bank statements.

With this information your bank will evaluate whether to approve you for a loan modification and if you are more than 90 days delinquent on your mortgage loan you may be eligible for a streamline version of flex modification in which a full forms and income verification package may not be required.  The streamline modification goal is also to reduce mortgage payments by 20%.

Once the bank receives all of the required documents, they will do their own analysis to determine whether you qualify for a modification.  The most important factors that will impact whether you receive a modification or not are going to be how much in arrears you are, the value of your home and whether you can afford a modified payment moving forward.  The bank needs to make a business decision on whether it is more beneficial for them to give you a modification or foreclose on your home.  For a complete look into how the bank will analyze your application you can click HERE

If you live in Washington state and would like to apply for a loan modification and get the protection and peace of mind of not being foreclosed upon while in the modification process you should consider applying for a modification through the states foreclosure fairness program in which a mediator as well as local attorneys for the bank and yourself will be present to hopefully make sure things go smoothly.

If you are denied a modification or have not applied in time in which to stop a foreclosure sale on your home, you may qualify to file a chapter 13 bankruptcy in order to stop a sale and make up your arrears over 60 months.  You can also apply for a loan modification while in a chapter 13 bankruptcy.

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

What Happens After Filing For Bankruptcy?

filing for bankruptcyIf you are considering filing for bankruptcy, you likely want to know what exactly happens once you do so. However if you want to know if filing for bankruptcy is a good idea and whether chapter 7 or chapter 13 bankruptcy makes the most sense, you should consult with a bankruptcy lawyer prior to filing your case.

So what happens after you have filed for bankruptcy?

After you have reviewed and signed your bankruptcy petition and supporting schedules your bankruptcy attorney will file your documents with the local bankruptcy court in the jurisdiction in which you reside. In Washington State, all bankruptcy attorneys must file cases online using the courts Electronic Case Filing System. Once the case is filed, the clerk of court will review the documents that were filed in your case and make sure you have filed all of your required documents. If something required is missing, the clerk will issue a notice of deficient filing and you will need to make sure you comply with the court notice by the deadline listed if you don’t want your case to be dismissed.

Upon the filing of your case, you will also be issued a bankruptcy case number, a bankruptcy trustee will be assigned to your case, and mail will go out to all of your creditors that you listed in your bankruptcy petition from the bankruptcy noticing center.  This all happens immediately and from the time your bankruptcy case is filed, the bankruptcy automatic stay will go into effect, stopping most creditors from attempting to collect on a debt. This is what stops wage garnishments and foreclosure actions on your home.

Next, your attorney sometime before your required 341 meeting of creditors will send the trustee assigned to your case your last filed tax return, last 60 days of paystubs, last 30 days of bank history and a declaration form as well as a chapter 13 info sheet if filing for chapter 13.  The meeting of creditors is held in about 30-45 days after your case is filed and in the jurisdiction where you live.

At the meeting of creditors, the trustee will ask you basic questions about your bankruptcy petition and financial circumstances.  Creditors can show up at the meeting to ask you questions under oath, but that is a rare occurrence.  Creditors are more likely to show up if you know you have the possibility of a hostile creditor such as an ex spouse or business partner who is trying to prove that a debt may not be dischargeable or if there is the possibility of making a case for fraud. Usually general creditors such as somebody representing a credit card or medical bill won’t show up.  In many cases, if you don’t own many personal assets, your meeting will be less than 5 minutes, however usually about 1o other people are assigned to meet with the bankruptcy trustee at the same time so you should expect to be at court for about an hour.

If you haven’t already completed your required financial management class, you should do so after the meeting of creditors in order to ensure that you will receive your discharge in about 90 days after your case is filed in chapter 7 or at the end of your plan in chapter 13 bankruptcy.

Creditors or the US Trustee have the right to object to your bankruptcy filing or discharge and are given about 90 days in which to do so. In most cases, no objections are filed and the discharge will be issued in 90 days after your case was filed.  This is what you are looking for as a bankruptcy judge signs an order stating that your debt has been forgiven if the debt is of a type that is dischargeable.  In a chapter 13 case you would be on a 3-5 year repayment plan so the discharge would happen once the plan is completed.

Filing For Bankruptcy and Case Closure

One you receive you bankruptcy discharge, your case can close. However if a chapter 7 trustee is investigating assets or trying to sell assets such as real estate for the benefit of your creditors, your case can remain open, even after your bankruptcy discharge has been issued. Once your discharge is issued however, your credit reports should be updated to reflect that your debts have zero balances and are closed out.  You will want to review your credit reports about 30 days after your discharge has been entered to make sure items are being reported correctly.  If they are not reporting correctly you can dispute these items with the credit bureaus.

If you happen to get a collection letter or call from a debt collector regarding a debt that was discharged and incurred prior to your case being filed, it is likely because the creditor did not receive notice or it may be a scam, so be mindful of that.  Usually scam callers have to do with pay day loans and these calls should be reported to the Federal Trade Commission, FBI or your states Attorney General.  If your case was a no asset case, which means the bankruptcy trustee did not take or sell any assets of yours, that debt should be discharged whether it was listed or not.

This is a general guide of what happens in a typical bankruptcy case, however other things you may have to deal with or consider are reaffirmation agreements for secured debts, trustee objections and motions to dismiss proposed plans or filing or defending the rare adversary case if there is a creditor who is behaving badly and not adhering to the rules of the bankruptcy code or if you failed to abide by the rules of the bankruptcy code by acting in good faith. Filing for bankruptcy can be complicated and have consequences but if done properly with the proper counsel you could be debt free and get the fresh start that you deserve. Most debtors are able to purchase a home after about 2 years of a bankruptcy filing and shockingly you will be offered offers for new creditor cards and vehicles almost immediately after filing, so there is hope that you will be able to rebuild your credit scores in short order.

If you live in Washington State and are looking for assistance with filing for bankruptcy, 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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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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