A lender has a mortgage lien. What is a lien and does it affect my bankruptcy case?

mortgage lien consumer bankruptcy

A lender has a mortgage lien. What is a lien and does it affect my bankruptcy case?

A lien is a claim by a creditor against some specific item of your property. The property is called “collateral” for the loan. It guarantees payment in the event that you fail to make the required payments. A mortgage lien is a special type of lien on real estate that’s used to secure repayment of a loan for the purchase price or a home-equity loan.

Your home may be subject to more than one lien (e.g., tax liens, judgment liens, “second” and “third” [or even higher numbered] mortgages). If you fail to make payments, the creditor may enforce its rights by taking the collateral (this is called “foreclosing”), in order to get paid off. Filing Chapter 7 bankruptcy blocks a foreclosure sale temporarily, while filing under Chapter 13 blocks it if your plan provides for paying off the arrearages and keeping payments current during the life of your case (see our discussion on the effect of bankruptcy on foreclosures).

Even though your personal liability to repay a judgment or other debt will probably be wiped out (“discharged”) at the end of your bankruptcy case, liens do not automatically go away. If you do nothing about a lien, the creditor will eventually be able to foreclose and sell the collateral. You have several options to avoid losing your property:

(1) You can “avoid” judicial liens against exempt property. See the discussion of “WHAT DOES IT MEAN TO AVOID A LIEN”.

(2) You can “redeem” the collateral by paying the lender its current market value. See the topic “WHAT IS REDEMPTION.”

(3) You can “reaffirm” the debt on terms that you and the lender mutually agree upon and that are fair to you in the judgment of your attorney or the court. See the topic “WHAT IS REAFFIRMATION.”

(4) You can also avoid the hassle of a foreclosure sale by “surrendering” the collateral to the lender. See the topic “WHAT IS SURRENDER”

(Reviewed 11.14.08)

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What are the liability issues involved in a mold case?

Mold Case Liability Issues Injury Law

What are the liability issues involved in a mold case?

The most common “theories of liability” that an attorney would look at in a mold cases might include:

· Negligence – where the plaintiff must establish that a defendant’s (or more than one defendants’) failure to live up to a responsibility (also known as a “breach of a duty”) caused the damage. When someone has been careless and has caused injury or costly damages to another person, they can be held responsible for the damage or injury under a “negligence” theory. In a mold case, an example of negligence might be if a subcontractor left wood or paper-coated sheet rock building supplies out in the rain, then used the still-wet supplies to construct the foundation or inner walls of a house, leading to a serious mold problem.

· Breach of contract – an example would be claims against contractors, architects and builders for construction defects that would not be reasonably expected based on your agreement with them. For example, when you contract with a builder to follow an architect’s plan to construct your home but the builder cuts corners on the plan, leading to a method of construction that causes a mold problem, this is likely a violation, or “breach,” of your contract by the builder. Or if your contract with a builder states specifically that your walls will be built out with Dens Glass Gold sheet rock, which has a moisture-proof coating, but the builder uses a different and inferior gypsum board that becomes moldy from exposure during the construction of your home, you would also have a breach of contract claim.

· Breach of warranty (express or implied) – claims for breach of express warranties are contract claims that focus on the terms and conditions of the contract involved. For example, if a contract between you and a builder states that the builder warrants that the finished construction product will be “free from defect,” but it turns out a construction method has resulted in gaps in your siding that cause mold in your walls, this is a breach of an express warranty. Breach of implied warranties are based upon the idea that a house or building was designed and is usable for its intended purpose. For example, if you hire an architect to design your home and the architect’s design includes a type of flat roof that is inherently prone to serious and damaging leakage, and the roof does leak, you likely have a claim for a breach of implied warranty because it is implied in the contract with an architect that the roof he or she designs will be usable as a functioning, non-leaky roof.

· Fraudulent misrepresentation/concealment – in a sale of real estate, the seller has a duty to disclose latent defects to the buyer which are known or should be known and that are not necessarily discoverable to the buyer upon reasonable inspection. This duty also extends to a realtor when known conditions are not disclosed or are concealed. For example, if the sellers of a house know of a serious mold problem such as the presence of fungi and black within the main walls of a house but there are no outward signs at all of this hidden problem, the sellers, and the sellers’ realtor, must disclose this problem to potential buyers or be at risk for a claim against them for fraudulent misrepresentation once the problem is discovered. The sellers and realtor could also face a fraudulent concealment claim in the case where outward signs of mold, such as damages sheet rock, are replaced and painted-over, to hide the underlying problem without fixing it. An attorney can advise you as to what types of claims you may have that are worth pursuing. You should contact an attorney as soon as possible, since each state limits has a statute of limitations which limits how long you have to sue. If you would like an experienced lawyer to assess your case at no cost or further obligation, please fill out Free Advice’s case evaluation form, and an attorney will contact you directly.

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My lawyer tells me that I should get a separation agreement when I get divorced. What is it and what does it cover?


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Separation Agreement Divorce Law

My lawyer tells me that I should get a separation agreement when I get divorced. What is it and what does it cover?

A separation agreement should cover all of the issues outstanding between you and your spouse. Minimally, it should dispose of all of the assets accumulated during the marriage, including real estate, personal property, bank accounts, securities, insurance policies, retirement and pension plans, etc. It should also allocate who is responsible for paying all of the debts incurred during the marriage that remain unpaid. If there are children the matters of custody and

visitation should be carefully set out in detail. Matters of spousal support in amount and duration should be included as well as child support. There are other matters that can be included such as no interference with the other party’s life, waiver of inheriting from each other, etc.

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Can I buy or sell patent rights?

Buy Sell Patent Rights Intellectual Property Intellectual Property

Can I buy or sell patent rights?

Yes, if you are an inventor you may assign all or part of your interest in the patent application or patent to anyone by a properly worded assignment.

The patent application itself must be filed in the U.S. Patent and Trademark Office as the invention of the true inventor, however, and not as the invention of the person who purchased the invention from the inventor.

Just as deeds to real estate should be recorded with the local county officials to protect the parties’ rights, patent assignments should be recorded in the Patent Office to give notice to the to the public and other potential purchasers.

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What is the automatic stay?

what is automatic stay consumer bankruptcy

What is the automatic stay?

The “automatic stay” is a rule that prevents any creditor from doing anything at all to enforce a claim against a debtor during the bankruptcy case. The granting of the stay depends on how many bankruptcies you have filed within 1 year.

Some examples of actions by a creditor that would violate the stay are these:

(1) Filing a new lawsuit, or continuing to press a lawsuit that had already been filed.

(2) Sending dunning letters or making phone calls in an attempt to collect a debt.

(3) Filing a “financing statement” to perfect a security interest.

(4) Refusing to issue a transcript of your schooling.

(5) Canceling your driver’s license.

Exceptions: Criminal prosecution, paternity proceedings, litigation to collect child support or alimony, repaying a loan from certain types of pensions, and IRS audits are not stopped. With residential real estate leases, landlords seeking to evict tenants are free to complete evictions if the landlord already has a judgment of possession or where the eviction is based on endangerment or use of illegal substances on the leased premises. Moreover, the automatic stay doesn’t stop or postpone actions to suspend driver’s licenses and revoke professional licenses.

(Reviewed 11-08)

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