Seattle Bankruptcy News - Symmes Law Group

Can I Qualify for a Home Loan with a Low Credit Score?

qualify for a home loanThe short answer is yes you can qualify for a home loan with a low credit score, but the higher the credit score the lower your interest rate on the loan will be, which will determine which programs you qualify for from a lender and what your monthly payments would be moving forward.

If you are looking to refinance a loan to get cash to finance other life events such as settling prior debts or a home remodel and have a low credit score, a lender may require that you have more equity in a home to mitigate any risks they are taking by giving you a loan. With a new mortgage loan, a bank may require at least a 10% down payment on any scores below 580. Symmes Law Group has partnered with Majestic Home Loans to offer various mortgage products including cash out refinance options and new home loans. You can complete a fast track application HERE to learn about what programs you may qualify for and get pre-approved by submitting the following information to the lender for review:

If Applying To Qualify for a Home Loan:

  • Wage Earner – Current 1 month’s Pay-stubs & W-2s for previous two years.
  • Self Employed – Personal & Business Tax Returns for the previous two years.

If Applying for a Refinance:

  • Mortgage Statement
  • Home Insurance declaration page
  • Wage Earner – Recent 1 month’s Pay-stubs & W-2s for previous two years.
  • Self Employed – Personal & Business Tax Returns for the previous two years.

Your credit scores are made up of a three-digit numbers that ranges anywhere from 300 to 850. The higher the score the better the credit. There are several calculations a lender may use obtaining your scores and most will use information from the 3 major credit bureaus, Equifax, Experian, and Trans Union. For conventional mortgages, most lenders ask that a credit score be at least 620. Those with excellent credit above 740, are typically offered slightly better interest rates and allowed to have a smaller down payment. But what if the score is below 620? What if the score is under 600 or even 580?

Scores that are sub-600 are often due to a recent event such as a recent payment delinquency, collection account or short sale. individual lenders can have their own internal credit guidelines but what that really means is if one lender says “no” that doesn’t mean the next lender will have the same answer.

If scores are in the neighborhood of 580 then adding compensating factors can help push through an approval such as a 10% down payment on the loan. Once you complete your fast track application you will be advised on what loans you may qualify for, but some examples are FHA, USDA, Conventional Loans, Jumbo Loans, FHA Streamline Refinance, VA Streamline Refinance, Cash Out Refinance or Home Equity Line of Credit to name a few. Every program comes with different guidelines and rates and how much you may have to put down for a down payment it is a new loan you are seeking.

If you have filed for bankruptcy in the past you may still qualify for a home loan, sometimes immediately. With Majestic Home Loans you would qualify for a loan after a chapter 7 bankruptcy after 2 years from your filing date on FHA, VA and conventional loans, while applying after a chapter 13 bankruptcy you would only have to wait 1 year to qualify for a loan. If no bankruptcy discharge was given in the bankruptcy case, then an applicant may qualify immediately at the time of applying for the loan.  A discharge order is issued by the bankruptcy court when you complete your case and are no longer obligated to pay back certain debts.  Sometimes a discharge order is not issued if your case was dismissed for various reasons or withheld for violating the laws of the bankruptcy code.

If you are in the market for a new home loan or home refinance be sure to complete the fast track application HERE and give Symmes Law Group a call at 206-682-7975 to get the counsel you need if you have questions or need assistance in the loan application process.  Symmes Law Group, PLLC is not a licensed loan officer or mortgage company and any qualifications and loan approvals would be subject to a particular lenders and their qualifications.

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.

How Long After Bankruptcy Can I Buy A House?

 

How to buy a house after bankruptcyIf you are wondering how long after bankruptcy can I buy a house? You are not alone.  Getting a mortgage after bankruptcy can seem to be a never-ending process. However, with the assistance of our mortgage experts, you can expect to receive the most efficient, and effective services we’re able to offer. Typically, you’ll have to wait for a period of 2 years after a discharge and 4 years after a dismissal.  However, there are home loan programs that can be available to you as soon as 1 day after discharge. You are also able to get a mortgage during your Chapter 13 bankruptcy but with some extra stipulations.  To learn more about when you can buy a house after bankruptcy read what mortgage experts have to say as provided by the author of this article Robert Weaver.

How Long After Bankruptcy Can I Get an FHA Home Loan?

Some lenders make it possible to get an FHA Home Loan as soon as 1 day after discharge.  In some instances you can receive an FHA loan during the Chapter 13 plan, or after 12 months of successful payments and approval from the trustee.  There are a number of stipulations which you must adhere to best qualify for an FHA home loan.  Some mortgage companies commonly see the duration of time to qualify for an FHA loan after bankruptcy as 3 years. As long as you’re properly aligned with the qualifying factors, there are mortgage companies that will work to get you for a FHA home loan.

How Long After Chapter 13 Bankruptcy Can I Buy a House?

Getting a Mortgage after Chapter 13 Bankruptcy requires the participant to undergo different seasoning periods after their Chapter 13 discharge.  Based on the type of home loan program the seasoning periods vary based on the borrowers current financial position.  Loan programs such as FHA, USDA, and VA loans tend to be even the most lenient for the borrower. This is possible because you’re able to borrow just a year into your bankruptcy plan due to the government-backed nature of the FHA, USDA, and VA loans themselves. Your ability to get a home loan can be affected by factors such as credit score, lack of savings, foreclosure/short sale, etc.

Position Yourself to Purchase a House After Bankruptcy

One key component to improving your chances of buying a house after bankruptcy, is by making on time monthly payments on your repayment plan.  A great way to begin making continuous monthly payments is by getting a secured credit card, and paying it off each month. Making regular continuous payments is crucial to rebuilding your credit score after bankruptcy.  It also shows the courts that you are financially responsible enough to get a mortgage.

Securing a mortgage after Chapter 13 Bankruptcy can take as little as 25 days, to as long as 2 months.  The most common issues that slow the loan process down are credit problems, problems with the property itself, and how quickly your lender receives the required documentation from you.

How Long After Chapter 7 Bankruptcy Until I Can Buy A House?

Chapter 7 Bankruptcy entails a waiting period of typically 2 years in total to obtain a mortgage. This waiting period can also be shortened by improving your overall financial status by paying down existing debts.  You should also begin to build wealth in the form of a savings account, and collateral.

Can I Buy a Second Home after Bankruptcy?

You’ll likely have to wait for a period of 2 years after discharge before you can request a second mortgage.  A better option for many borrowers instead of a second mortgage is to do a cash-out refinance.  When choosing to do a cash-out refinance a borrower has the opportunity to pay off their first mortgage.  In doing so the borrower will receive cash they might need to address other needs. Cash-out refinances work for borrowers after the third year in their Chapter 13 bankruptcy plan or as soon as 1 day after discharge.

If I Filed Bankruptcy Because of Medical Bills, When Can I Buy a House?

Chapter 7 Bankruptcy is the most common filing option for those seeking to dissolve their debts from unsecured sources, such as medical bills. You’ll have to wait a period of two years from your Chapter 7 discharge to apply for a home loan. If you filed a Chapter 13 bankruptcy to deal with your medical bills, then you should be able to get a mortgage as soon as one day after discharge.

If you live in Washington State and need assistance with filing bankruptcy, give Symmes Law Group a call at 206-682-7975 to get the counsel you need.

Should I Have a Will In Washington State?

Last WillIt is a good idea to have a will of your own in Washington State if you want to make things easier on your family when you pass away.  A will is a legal document in which you appoint a personal representative to manage your affairs, name who will care for your children, provide specific gifts to individuals, give burial instructions or even provide instructions for a trust within a will called a testamentary trust for minors or a special needs trust for those who cannot manage inheritances on their own. A will may also allow an individual to specifically disinherit people or give instructions for those who should not be named as a personal representative.

If I Have a Will, Who Should I Name As My Personal Representative?

The person you name as your personal representative should be reliable, responsible, willing and able to carry out the terms of your will and able to navigate the probate process should the need arise.  In Washington State any estate that includes assets of more than $100,000 must go through probate.  The personal representative duties include paying creditors, filing the will in court as part of a probate if necessary, making distributions of assets to heirs, and liquidating property. This person, often with the help of a probate attorney will be the point of contact for creditors and heirs of the estate.

What If I Don’t Have a Will?

If you don’t have a will at the time of your death then you will die intestate.  This means that the family members and friends will need to decide what your wishes were as to your estate and if there is disagreement it could cause litigation within the probate court. Not having a will at the time of death may also cause confusion in terms of who will inherit which assets, who will be the guardian of your children or who will be the personal representative of your estate.  Having a will should be as much for you as it is for your family to make sure your passing does not cause a burden or in fighting among family.  Any disputes as to succession or inheritances will ultimately be settled by state law, so if there are any specific gifts to friends or family that you wish to be made, you should be sure that you list these in your will.

What is the Process for Having a Will Drafted?

You should consult with an estate planning attorney to discuss your needs and wishes.  Most attorneys have a questionnaire that you will need to fill out listing out your personal representatives, guardian and possible individual gifts.  Backups for these people should also be listed.  Once your estate planning attorney reviews your information they will be able to assess your situation, advise you, and follow up with any questions.  Once a draft of your will is created, your estate planning lawyer will review it with you and make any changes or updates that you request.  Once the will is completed it will be time to sign the document to make everything official.  Wills require that you be above 18 years of age, you have 2 witnesses, and be of a sound mind at the time of signing the document.  It can also be a good idea to have the document notarized to make things more official in case you expect any disputes as the document.  Once the documents are signed, you should keep the will in a safe location and advise your personal representative or family as to the location of the will should you pass away.

If I Have a Will, Can I Make Changes At a Later Date?

Yes!  Your will can be changed at a later date and should state that all previous will have been revoked.  Updates may need to be made from time to time to consider life events such as children, marriage, acquisition of assets or changing your mind about specific gifts listed in a will.

If you live in Washington State and are looking for an estate planning attorney to assist with the drafting of a will, 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.

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.

Tagged with:

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.

Tagged with:

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.

Tagged with:

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.

Tagged with:
Follow Symmes Law Group, PLLC on:
Seattle Bankruptcy Attorney on Google Plus  Seattle Bankruptcy Attorney on LinkedIn  Seattle Bankruptcy Attorney on Facebook  Seattle Bankruptcy Attorney on Twitter  Seattle Bankruptcy Attorney on YouTube

Symmes Law Group is a proud member of the following organizations: