If you have been charged with a drug offense, contact an experienced Utah drug attorney immediately. Time is of the essence. Do not attempt to convince the arresting officer. Anything and everything that you say can and will be used against you in the court when your case comes up for trial. It’s best to remain silent and ask that you be allowed to speak to your attorney. Which drugs are illegal?At last count, dozens. The laws of Utah list the drugs that are always illegal within its borders, regardless of whether the drug is possessed, purchased, or sold. Each state also lists the drugs that are illegal unless prescribed by a physician. In addition, federal law prohibits the possession, purchase, and sale of many types of drugs. State and federal laws usually refer to illegal drugs as “controlled substances”; the older term is “contraband.” If someone you know has been arrested by the police for possession or trafficking of drugs, contact an experienced Utah attorney immediately. Drug crimes are a serious offense.Strictly speaking, “drugs” are substances used for the diagnosis, cure, treatment, and prevention of a disease or physical or mental condition. “Narcotics” are substances that dull the senses and become addictive after steady use. “Inhalants” are narcotics, and their use as narcotics is illegal. When inhaled, they rob the body of oxygen and can cause brain damage. Spray paint, hair spray, paint thinner, and bug killers are the commonest types. Most states including Utah group drugs and narcotics into categories established under the federal Uniform Controlled Substances Act. They are categorized according to their potential for harm in contrast to their possible medical benefits. For example, “Schedule I” drugs have no beneficial medical use; they are always harmful. Heroin and LSD are Schedule I drugs. Schedule II drugs include cocaine, opium, and amphetamines. Because Schedule I drugs have no beneficial use, the penalty for possessing and selling any of them is the severest. There are three types of crime: infractions, misdemeanors, and felonies. Felonies are the most serious type of crime. Felony crimes include rape, assault, and burglary. Though drug possession can be classed as a felony, this is usually only in cases where an individual is found to have a large quantity of illegal drugs in their possession or depending on the nature of drugs involved. A drug conviction will remain on your record and will adversely affect your life. You will find it difficult to get a job or rent an apartment. If you have been arrested for a drug crime, your first course of action should be to speak to an experienced Utah drug attorney. A third degree felony can result in up to 5 years in prison and a fine up to ,000 whereas a class B misdemeanor conviction can result in up to 0-6 months’ jail time and up a $1,000 fine. Repeat offenses can have serious consequences. For example, a class B misdemeanor rises to a third degree felony upon repeated charges. Possession of a controlled substancePossessing a controlled substance isn’t always a crime. Utah and federal laws only prohibit persons from “knowingly or intentionally” possessing illegal drugs. Being innocently in possession of a controlled substance usually isn’t sufficient to support a criminal conviction. For example, if a person receives a package in the mail that contains drugs, the person can only be convicted of illegal possession if it is shown that he or she knew the drugs would be delivered and intended to take possession of them. Of course, it isn’t illegal for a person to possess certain drugs if they have been prescribed by a doctor for that same person’s illness or injury. Giving drugs to another person is a criminal act. Under Utah law, the “sale” of a controlled substance includes giving a drug to someone. It’s not necessary to receive something in exchange. This means that cash doesn’t have to change hands for a drug sale to occur. Quantity Of DrugsThe seriousness of a drug offense depends on the quantity of drugs the suspect possesses or sells. Possessing a small quantity of marijuana is usually a misdemeanor, but possessing large amounts of any illegal drug is a felony. When someone is caught with a cache of controlled substances, most criminal courts presume that the individual intended to sell them. To beat a “trafficking” charge, you must present strong evidence to overcome or “rebut” the court’s presumption. But even if the trafficking charge is successfully rebutted, you might still face a charge of illegal possession. Most drug statutes make it a crime to knowingly manufacture or deliver or possess with intent to manufacture or deliver controlled or counterfeit controlled substances. Controlled substances include, among other things, heroin, cocaine, morphine, methamphetamine, LSD and marijuana. Possession of controlled or counterfeit controlled substances may be actual physical possession or “constructive” possession. Constructive possession means that possession will be implied if the defendant has the intent to possess the illicit substance and maintains control and dominion over the premises where the controlled substances are located. The mere presence of controlled substances on defendants’ premises is not enough, however, particularly if it is a location that is well traveled or occupied by others. There must be sufficient proof that the defendants had knowledge of the presence of the controlled substances and intended to possess the substances even though they may not have been in their physical possession. Thus, if the controlled substances are located in an area of the defendants’ home or car, where they have exclusive dominion or control, this may constitute possession by the defendants, by virtue of the location of the drugs on the defendants’ private property. In drug-dealing cases, if defendants are apprehended before the actual delivery of the controlled substance, proof of intent to deliver controlled substances is generally demonstrated by circumstantial evidence. The most compelling circumstantial evidence on this issue is the amount of controlled substance defendants have in their possession at the time of arrest. The larger the amount, the more likely it is that the defendants intended to deliver some portion of it to others, rather than keeping it for personal use. Even if the defendants possess a small amount of the controlled substance, they can still be convicted of possession with intent to deliver, but much more circumstantial evidence will be necessary. Thus, in addition to possession, the government might be required to produce evidence of contacts or appointments made for purposes of delivering the controlled substances. Other circumstantial evidence of possession with intent to deliver might include the type of packaging used for the controlled substance, large sums of money or weapons in the defendants’ possession or the presence of other drugs or drug paraphernalia in the area. If there is insufficient evidence of intent to deliver, then defendants can still be charged with the lesser offense of possession of a controlled substance. Simply proving that the defendants had knowledge of the controlled substance and that it was in their immediate and exclusive control is sufficient for a charge of drug possession. Note here again that knowledge of the controlled substance alone is not enough. The defendants must also have immediate and exclusive control over the controlled substance. Just as in the case of possession with intent to deliver, simple possession of a controlled substance may either be actual or “constructive.” Interestingly, most drug offense statutes also make it crime to possess with intent to deliver or merely possess counterfeit controlled substances. At first glance, this seems an unusual criminal offense because counterfeit substances don’t cause any real social harm. Nonetheless, one rationale for these provisions is that they allow the government to bring cases against defendants in instances when undercover officers pose as drug purchasers and buy counterfeit controlled substances instead of the “real thing.” Without statutes outlawing delivery or possession of counterfeit controlled substances, the drug seller could not be prosecuted because what he sells the undercover officer is not actually a controlled substance as defined by the statute. A similar result would occur if the officer arrests an individual for simple possession of drugs only to later discover after testing that the drugs are in fact counterfeit. One of the major difficulties associated with prosecuting defendants for delivery or possession of counterfeit controlled substances involves distinguishing between possession of innocent substances and possession of counterfeit controlled substances. In other words, how can the police tell whether the defendant intended to possess counterfeit cocaine or was merely possessing an “innocent” substance such as flour? Generally, the counterfeit substance must be packaged and presented in such a manner that a reasonable person would believe that using the product would produce an effect similar to that of the actual controlled substance. Some factors that will be considered when charging the defendant with delivery or possession of counterfeit controlled substances include the type of storing and packaging used for the counterfeit substance, any representations made by the defendant as to the nature of the substance, and whether the defendant was attempting to exchange the counterfeit substance for something of value. Further, to avoid dismissal of the indictment for failure to charge the appropriate crime, it is no defense to a charge of selling counterfeit controlled substances that the defendant thought they were actual controlled sub stances. This means that a defendant who may have been misled as to the authenticity of the substances will not be able to escape prosecution. Finally, the penalty provisions for drug offenses typically impose lengthier sentences depending upon the amount of controlled or counterfeit controlled substances manufactured, delivered or possessed by the defendant. Justice Reinvestment InitiativeThe State of Utah has adopted an initiative called the Justice Reinvestment Initiative. Under this initiative, the courts are encouraged to provide opportunities for recovery instead of incarceration. As a result, you may not receive jail term for your drug offense and you may instead be provided with an opportunity for recovery. Speak to an experienced Utah drug attorney to know if you qualify for this initiative. Utah has something similar to the Three Strikes law although it is not officially called the Three Strikes law. It substantially increases the penalties for a third offense in certain felony and misdemeanor cases. For example, if a newly convicted felon had a criminal record of two prior felony convictions, the judge was obligated to impose the maximum sentence for the third crime. Three strikes laws are intended to remove repeat offenders from society, and prevent them from committing further crimes. Unlike traditional sentencing, where judges can use personal opinion to give harsher or more lenient sentences, mandatory sentencing does not allow personal opinion to affect the punishment that is handed down. Drug Crimes Defense Lawyer Free ConsultationWhen you need to defend against drug crimes in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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If you are facing a criminal trial, speak to an experienced Orem Utah criminal defense lawyer. In every criminal trial, the government is constitutionally required to prove its case against the defendant beyond a reasonable doubt. Additionally, defendants in criminal cases have a constitutional right to be free from compelled self-incrimination. Taken together, these concepts mean that in criminal cases, the government must independently investigate, obtain and present evidence against defendants. Criminal defendants are not required to speak or otherwise respond to the government’s case against them, and the government shoulders the entire responsibility for proving its case. Notwithstanding these prosecutorial responsibilities and constitutional protections, many criminal defendants voluntarily choose to present evidence during a criminal trial in response to the government’s case. Such evidence might challenge the government’s case-in-chief and/or attempt to present an excuse or justification for the defendant’s behavior. Evidence challenging the government’s case-in-chief will usually seek to demonstrate that the government does not have sufficient evidence to prove one or all of the material elements of the crime (i.e., the act, the mental state, causation and social harm) beyond a reasonable doubt. In challenging the government’s case-in-chief, a defendant might also introduce evidence designed to prove that the government has charged the wrong person. This is known as an “alibi” defense, and the defendant will typically present evidence in the form of witness testimony that establishes that he could not have committed the crime because he was elsewhere at the relevant time of the offense. Finally, a defendant may also counter the government’s case-in-chief evidence by vigorously attacking the accuracy and credibility of government witness testimony. By using these strategies, a criminal defendant is essentially challenging the government to meet its constitutional burden and prove its case beyond a reasonable doubt. But if a defendant is under no obligation to present a defense or even speak during a criminal trial, why would any defendant voluntarily choose to present a defense? Why not simply remain silent and put the government to its proof? One reason may be that the defendant is innocent of the offense charged and wishes to present his or her story to the judge or jury. While the government has an obligation to collect evidence and prove its case, it is certainly under no obligation to present evidence favorable to the defendant during the trial. Another reason may be that the prosecution has amassed a compelling amount of evidence pointing to the defendant’s guilt, and the defendant believes it would simply be too risky to allow that evidence to be offered at trial without challenge. Finally, in the face of overwhelming evidence of guilt, the defendant may wish to present evidence that his or her conduct at the time of the offense was either justified or should be excused. A defense offered to justify or excuse the defendant’s conduct is known as an affirmative defense. By presenting an affirmative defense, the defendant is admitting that he or she engaged in the conduct charged, but is offering an excuse or justification for the behavior. In other words, the defendant is arguing: “Yes, I did it, but I have an (excuse and/or justification) for my conduct.” When offering an affirmative defense, courts have determined that it is fair to place the burden of proof on the defendant because the defendant is raising the defense and is likely to have the most relevant evidence available to support the defense. Affirmative defenses are controversial because the defendant admits engaging in the conduct charged, but is asking to be partially or completely relieved of responsibility or punishment. Yet, many of these defenses remain popular precisely because, for defendants, they represent an opportunity to secure an acquittal or at least a reduced punishment despite the admission of responsibility. SELF-DEFENSEIf believed, a defense of self-defense presents a complete justification for the crime charged. This means that if the judge or jury believes that the defendant acted in self-defense, he will be completely acquitted of the criminal charges. Self-defense is typically presented in criminal trials when the defendant has been charged with murder or manslaughter. When presenting this defense, the defendant essentially argues that he used reasonable force to defend himself from an imminent unlawful attack and that he reasonably believed that such force was necessary to repel the attack. Depending upon the nature of the imminent unlawful attack, in some instances self-defense will permit the use of deadly force. Deadly force is force by whatever means that is highly likely to cause death or serious bodily injury to the victim. Defendant as AggressorTo properly raise a defense of self-defense, a defendant cannot be the aggressor. This means that the defendant cannot instigate an altercation and then claim self-defense when the victim of his attack responds to his aggression with force. Under the law of self-defense, a person who is the aggressor is not entitled to use deadly force to repel an attack unless he first retreats and gives an indication that he is no longer a threat to the victim. If the victim persists in responding to the aggressor after the aggressor retreats, then the aggressor may respond with deadly force. There are at least two ways a defendant can become the aggressor. First, as in the example, a defendant who starts an altercation is considered the aggressor and may not claim self-defense if his aggression is met with deadly force unless he first retreats. Second, a person who escalates an encounter can become the aggressor. So, for example, if an encounter begins with the use of nondeadly force by the aggressor, and the victim responds with deadly force, the victim, by responding with deadly force, becomes the aggressor because he has escalated the encounter to the level of deadly force. The person who escalates the encounter would not have a valid self-defense argument since it is almost never considered reasonable to use deadly force in response to a nondeadly attack. RetreatA person who instigates an encounter by using deadly force must first retreat before using deadly force to defend himself from a responsive deadly force attack by the victim. In some jurisdictions, the retreat doctrine is much broader, such that a victim who is initially threatened by an aggressor with deadly force must “retreat to the wall” before he may respond with deadly force. This means that the victim of an imminent, unlawful and deadly attack must do everything possible to avoid using deadly force, although he does not have to go so far as to place himself in greater danger (e.g., running into a busy intersection to avoid a gun-wielding aggressor). Also, a victim of a deadly attack does not have to retreat in his own home. The law does not force a person to flee the safety of his home in order to avoid an unlawful attack. The “retreat to the wall” doctrine is used in only a few jurisdictions, and most continue to adhere to what is known as the “hue man” rule, which means that a person threatened with deadly force can stand his ground and respond with deadly force. DEFENSE OF OTHERSA person may use reasonable force to defend another person who is the victim of an unlawful attack. If the victim is threatened with or subjected to the use of deadly force, then the person coming to his defense may use deadly force in response. Problems arise when the person coming to the aid of a victim misinterprets the situation and uses force that is inappropriate under the circumstances. For example, a person may encounter two people engaged in a physical altercation and decide to step in and use deadly force to defend one of the parties. If it turns out that the victim of the attack would not have been entitled to use deadly force, then the person coming to his assistance would not be justified in using such force either, regardless of his perception of the situation. In this instance, the person offering assistance is said to “stand in the shoes” of the victim, and if the victim would not have been able to use deadly force during the encounter, then any person coming to his assistance will not be entitled to use such force either. Indeed, the person offering assistance may be criminally liable if his unjustified use of force results in harm to another. DEFENSE OF PROPERTYDeadly force may not be used to protect property under any circumstances. The reason for this is simply that human life should be valued over real or personal property. Nonetheless, some jurisdictions have enacted “make my day” laws. These controversial statutes allow homeowners to use whatever level of force is necessary against intruders who enter the home and threaten to use any type of force against the homeowner or anyone in the home. Although these statutes do not permit the homeowner to use force merely to protect his property, they do allow the homeowner to insure safety within his home when someone enters the home with the intent to use force against him or other occupants in the home. INTOXICATION DEFENSEA defendant may use a defense of voluntary intoxication to prove that she did not have the necessary intent to commit the crime charged. When presenting this defense, the defendant is claiming that her mind was so affected by drugs or alcohol that she could not form the required intent to commit the crime or, in some cases, could not perform the voluntary act required by the criminal statute. The intoxication defense is very controversial because of the general belief that a voluntarily intoxicated person should be responsible for the consequences of her actions. Nevertheless, in many jurisdictions, the defendant’s state of voluntary intoxication may serve as a defense if it prevents her from forming the necessary intent to commit a particular offense. The defense is sometimes limited, however, and in some jurisdictions the defendant may only present a defense of voluntary intoxication when charged with crimes that require specific intent. So, for example, if a defendant is charged with the crime of larceny (a specific intent crime), she may present an intoxication defense to show that, because of her intoxication, she could not form the specific intent to steal. The theory is that while the defendant might be generally aware of her conduct, her mind is too clouded by alcohol or drugs to think about and form the specific intent to permanently deprive the owner of the property as required by the larceny statute. Even when limited to demonstrating lack of specific intent, the intoxication defense is still very controversial. As indicated earlier, the controversy is based, in part, on the fact that the law should strongly discourage individuals from becoming intoxicated to the point of engaging in criminal conduct. Allowing an intoxication defense, even in limited circumstances, significantly interferes with this deterrence objective. There is also a realization that rather than preventing the formation of intent to commit a crime, alcohol may indeed embolden some individuals to engage in criminal activity. For these reasons, a few jurisdictions have completely eliminated the defense of voluntary intoxication even for crimes that require proof of specific intent. Again, the theory is that defendants who become voluntarily intoxicated should be responsible for the consequences of their actions. Involuntary intoxication, however, remains a valid defense to criminal conduct. Involuntary intoxication can occur, for example, when a person erroneously takes more than the proper dosage of medication or becomes unusually and unexpectedly intoxicated by an amount of alcohol that would not have such an effect on the average person. Under such circumstances, if the intoxicated state is truly involuntary and unexpected, then the person is not considered responsible for any resulting criminal conduct because, in fact, the person did not act voluntarily and/or with the necessary mental state. An experienced Orem Utah criminal defense lawyer can assist you fight the criminal charges against you. Depending on the circumstances of your case, you may have defenses available. Orem Utah Criminal Defense Lawyer Free ConsultationWhen you need legal help to defend against criminal charges against you, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with DUI charges. Theft Charges. Assault.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Is A House Considered Real Estate? via Michael Anderson https://www.ascentlawfirm.com/criminal-defense-lawyer-orem-utah/ In most cases, you can get a mortgage to buy another house after a loan modification as long as you haven’t missed any payments over the previous 12 months, depending on the specifications of your lender. But you need to know how your original loan was modified. If you had any principal balance forgiveness or write-down on your mortgage, you may not qualify for a conventional mortgage loan. But there are other ways to get a mortgage with a low credit score. To a degree, it depends on the kind of modification plan you are in. If you are in a private modification, you should contact your servicer when you suspect that you will be having trouble making payments the sooner the better. Negotiating a new modification may or may not be possible; please know that the servicer’s role is to try to negotiate the most favorable outcome for the owner of the loan, and is not under any legal obligation to offer you new terms and conditions. However, they do need to review your situation and provide clear information about your rights and any appropriate timelines. If you’re in an old FHA-HAMP, that program is still active and you may be able to get a new modification after a trial payment plan period has been successfully completed. The old HAMP program (discontinued 12/31/2016) has been replaced by a new Flex Modification program. According to it is noted that borrowers who previously modified their loan through HAMP (or any of the predecessor programs) are eligible for a Flex Modification if the mortgage loan meets all of the eligibility requirements for the Flex Modification Program (including but not limited to the following): • The mortgage loan must be delinquent or in imminent default • The mortgage loan must not have been modified three or more times, regardless of the loan modification program • The mortgage loan must not have received a Flex Modification and become 60 days or more delinquent within 12 months of the modification effective date without being reinstated. • The borrower must not have failed a Flex Modification Trial Period Plan within 12 months of being evaluated for eligibility for another Flex Modification. To get started, you’ll want to contact the servicer of your loan. Look on your mortgage statement for contact phone numbers or website locations; some may have special numbers or site locations for borrowers having trouble with their loans. Talk to them as soon as you can and see what relief they might be able to offer you. You can get a mortgage after you have done a loan modification. Loan modifications were quite popular starting in 2009 through 2013. You are not seeing nearly as many since the beginning of 2014. Depending on what you did to your loan when you modified it depends on how long you have to wait if at all, after the loan was modified. A loan modification is when you change your current mortgage without refinancing it. A loan modification is usually done by the current company who is servicing the loan. A loan (mortgage) is considered modified if any of the following have occurred: lowering of the interest rate, increasing the term of the loan, converting to a fixed rate or reducing the balance of the mortgage. All of these modifications will result in a lower payment. If you went ahead a only lowered the interest rate or converted it to a fixed rate, than you should be able to qualify for a new mortgage right away, no waiting period. If you reduced the balance of the loan than you will have to wait at least 1 yr possibly more. Increasing the term of your loan will also result in at least 1 yr possibly more. The good news is most loan modifications that were done only adjusted the rate. Loan modifications were done to try to help people stay in their current homes. The person could have had a loss of income or a job loss. Maybe they could not afford the mortgage payment after it had adjusted, sometimes as much as 7% higher. Then there were customers who were just mad that their value had dropped. If you are going to apply for an FHA or VA loan then most lenders are going to require a minimum of 3 yrs. after your loan modification was completed. There are a couple of lenders that will allow anywhere from 1-2 yrs after a loan modification is completed. The loan modification must be complete. It cannot be in a trial phase and there must be a new note. If you have late on your new modified mortgage, almost all lenders will require a 12 month waiting period from the date of the last late. A lot of lenders also look for perfect credit after a loan modification. If you had a loan modification you can buy a new home or refinance your existing home. One of the challenges many homeowners faced in the recession was financial hardships. Loan modifications were often a short term solutions banks used for homeowners facing delinquency, income changes, or loss of home-equity. Each loan modification was different, but the most common form of loan modification involved simply a reduction in the mortgage payment. General conventional mortgage loan guidelines require you to have 24 months of payment history on the subject property you’re looking to refinance since the date of the modification or 12 months of payment history if you trying to finance the non-subject property. Put another way, if you had a loan modification on a house 12 months ago, but are looking to finance another property, you should be in the clear. The subject property is the property in question that you’re looking to get a new mortgage on. If you have had principal balance forgiveness, also called a write-down, you are going to be ineligible for most conventional mortgage loans. If you’re loan payment was reduced only and you have the 12 months or 24 months payments rating you’re eligible for financing. The mortgage holder that did the modification will typically report ‘restructured or modified mortgage‘on your credit report. In the event you have a modified mortgage, but the credit report does not indicate so, this could be a golden ticket. Lenders work off the credit report. You will need to provide a copy of the original modification terms specifically detailing the modification if you have a modification in your past. Some lenders who have provided loan modifications to borrowers have different interpretations of what Fannie Mae and Freddie Mac consider to be a modified or restructured mortgage. This is something that can work in your favor. Most, but not all loan modification involved you signing new paperwork detailing the specifics of your loan restructuring with your mortgage loan servicer. If your loan was changed, but you did not sign any paper work, you’re loan may report normally to the credit bureaus wherein documenting the loan modification need not be necessary, nor would you be subject to the waiting times. Most banks that originate, bundle and sell loans to the secondary market operate off the same guidelines regarding waiting times. In many situations bigger banks have what are called investor overlays that add another layer of scrutiny to a loan that may not necessarily need it, but are place to insure less risky loans. If you’ve been turned down before based on the previous loan modification situation you owe to yourself to obtain a second opinion. Mortgage banks that deal directly with Fannie Mae and Freddie Mac may be more viable source for securing a loan than a bank whose credit guidelines are in place to benefit shareholders rather than consumers actually borrowing the money. Understanding Home Equity Loans and Credit LinesHome equity loans can be an affordable way to tap the equity in your house to use for home improvements, pay for education and pay off credit cards or other types of debt. They are considered second mortgages because they are secured by your property and typically have lower interest rates than non-secured loans. Formerly, the interest paid on these loans, used for personal items, was tax deductible. However, with the advent of the Tax Cuts and Jobs Act, the interest will only be deductible if the loans “are used to buy, build or substantially improve the taxpayer’s home that secures the loan,” as stated by the Internal Revenue Service. Two Loan Types• Home Equity Loans • Home equity line of credit (HELOCs) There are two types of home equity loans. The first is a loan of a set amount of money financed for a set period (usually five to 15 years) at a fixed interest rate and with a fixed payment. The second type is called a home equity line of credit (HELOC). A HELOC has a variable interest rate and functions more like a credit card with an expiration date (often up to 10 years after the line of credit is taken out). You can run into trouble with either type of home equity debt if you have serious financial problems, lose your job or experience an unexpected illness. A further complication of a HELOC is the stark contrast between the initial phase (“draw” period), when you have access to the line of credit and may have to pay only interest on the money you borrow, and the second (much more costly) “repayment” phase, when the line of credit expires and you must begin repaying both principal and interest on your remaining balance. Defaulting on a home equity loan or line of credit could result in a foreclosure. What the home equity lender actually does depends on the value of your home. If you have equity in your home, your lender will likely initiate foreclosure, because it has a decent chance of recovering some of its money after the first mortgage is paid off. The more equity, the more likely your second mortgage lender will choose to foreclose. If you are underwater (your home is worth less than the combined amount owned on both the first and second mortgages), your home equity lender may be less likely to foreclose. That’s because the first mortgage has priority, meaning that it’s likely that the second mortgage holder will not receive any money after a foreclosure. Instead, the second mortgage holder will choose to sue you personally for the money you owe. While a lawsuit may seem less scary than foreclosure proceedings, it can still hurt your credit, and lenders can garnish wages, try to repossess other property or levy your bank accounts to get what is owed. Most mortgage lenders and banks don’t want you to default on your home equity loan or line of credit, so they will work with you if you are struggling to make payments. Should that happen, it’s important to contact your lender as soon as possible. The last thing you should do is try to duck the problem. Lenders may not be so willing to work with you if you have ignored their calls and letters offering help. When it comes to what the lender can do, there are a few options. Some lenders offer to modify your loan or line of credit. Bank of America, for example, will work with borrowers by offering to modify the terms, interest rate, monthly payments or some combination of the three to make the loan or HELOC more affordable. To qualify for Bank of America’s loan or HELOC modification, borrowers must meet certain qualifications: • They must have had the loan for at least nine months. • They must not have received any kind of home equity assistance in the last 12 months or twice in the last five years. • They must be undergoing financial hardship. • They must be able to repay the loan. Other private lender which offers student loans work with a borrower who is struggling to meet payments by offering multiple deferments and forbearance options. Home equity loans and lines of credit can be an inexpensive way to tap the equity in your home. If you find yourself in trouble, you do have options. From lender workouts such as a loan modification to limited government help, there are ways to get out from under a home equity or HELOC problem without going into foreclosure. The key in all options is to get help right away instead of hoping the problem will disappear on its own. Loan Modification Lawyer Free ConsultationWhen you are behind on your mortgage and you need legal help, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with real estate law. Mortgage Law. Loan Modifications. Bankruptcy. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Bankruptcy Lawyer Park City Utah Don’t Leave A Dog Or Child In The Car via Michael Anderson https://www.ascentlawfirm.com/how-long-after-loan-modification-can-i-buy-a-house/ When you are purchasing real estate, you should always hire an experienced Herriman Utah real estate lawyer who can act as your local counsel. The lawyer can assist you all the way. The lawyer can review your financing options and assist with the documentation. Ordinarily a home buyer cannot obtain a loan which represents the full amount of the purchase price in any kind of transaction; the purchase of a home is no exception. A down payment is required as a manifestation of the good faith and serious intentions of the borrower and to provide a margin of safety, that is, of value of collateral over debt, for the lender. In financing homes, the ratio of the mortgage amount to the purchase price is less frequently used as a criterion by which the mort gage amount is determined than the ratio of the mortgage amount to the appraised value of the home, referred to as the “loan-value ratio.” Most lenders, however, attempt to limit their appraisals to the purchase price, or less, and their loan to a certain percentage of that appraisal. The effect of increasing the loan-value ratio — especially as it approaches 100 percent — upon the purchasing power of the down payment is not generally appreciated. Increasing the loan value ratio from 50 to 75 percent, or from 60 to 80 percent, doubles the purchasing power of the down payment, as do increases from 80 to 90 percent or from 90 to 95 percent. Thus, increasing the loan-value ratio from 60 to 95 percent enlarges the purchasing power of the down payment eightfold. Successive increases in the loan-value ratio multiply the purchasing power of the down payment so greatly, in fact, that when the ratio goes beyond 80 or 90 percent the down payment requirement loses much of its effectiveness as a limitation upon the price which the purchaser can offer. Generally, all lenders require that their borrowers pay back, by a specific date, the full amount of any principal borrowed and interest incurred during the period of the loan. This due date is referred to as the “maturity date.” The amount of principal and interest that is due on the maturity date will depend on how the loan was amortized. A loan can be fully or partially amortized or not amortized at all. A loan is an amortizing loan if the principal amount of the loan is reduced gradually as a result of periodic payments by the borrower to the lender. Limitations imposed by mortgage termsWhen the down payment is no longer a limitation on the amount of the loan, the amount which the borrower can reasonably be expected to repay determines its size. The prospective homeowner’s ability to repay mortgage debt ordinarily depends upon his future income; and while it is impossible to predict this with certainty, some assumptions as to its amount and stability must be made. Most families find it possible to provide for a minimum outlay on housing notwithstanding income instability, and it is this minimum that must be calculated as necessary to meet debt service and the other outlays occasioned by ownership. For most people, a mortgage is their biggest and most important personal loan. Mortgages come in many different makes and styles. The most popular mortgage is the one that is amortized over 30 years, at which time it’s paid in full. However, 15-year mortgages offer some attractive advantages, including saving thousands of dollars in interest costs. The monthly payments on 15-year mortgages are higher, but counselors suggest getting the shortest term you can afford to save you money. Mortgage loans come with either fixed or variable rates. Variable rates by definition vary or change over the life of the loan depending on how they are structured. Fixed rates are harder to qualify for but may be easier to maintain because the payments do not change. For a $100,000 30-year mortgage at 8%, the borrower would pay $733.77 principal and interest per month. Loans that are repaid gradually over their life are called amortizing loans. The borrower’s money goes largely toward paying the interest in the early years of this loan, and most of the principal is not paid off until the later years. The total interest paid on this loan would be $164,160. At the end of five years, the borrower would still owe $95,070 of the original $100,000 borrowed. That’s because in those early years, the bulk of each monthly payment goes to interest. It is not until sometime in the fifth year that the amount allocated toward principal repayment tops $100 per month. By around the 20th year of the loan payoff, more of the monthly payment goes toward repaying principal than paying interest. Once that happens, of course, the payoff goes much more rapidly, but by then the borrower has already paid more than $143,000 in interest. The 15-year mortgage has an obvious advantage if the borrower can afford higher monthly payments. By paying the total loan sooner, the borrower needs less money for less time and pays less interest over the life of the loan. The disadvantage to the shorter 15-year loan is that the monthly payments are much higher than for a comparable 30-year loan and borrowers need to have a higher income to qualify for it. For example, a $100,000 15-year mortgage at 8% interest would have a monthly payment of $955.65. Over the life of the loan, the borrower would pay only $72,017 in interest. By the end of the fifth year, the balance on this loan would be just under $79,000, but by the end of the 10th year, it would be down to $47,000. In those last five years, the payoff accelerates because the payments go almost entirely toward principal repayments, not on paying interest. Another way to save thousands over the lifetime of a loan is to make additional principal payments. Let’s say you cannot afford the higher monthly payments of a 15-year mortgage. So you take a 30-year mortgage. At the same time, purchase an amortization chart or run one on some personal financial software such as Quicken. These charts show precisely how much money is going toward interest and principal for every payment. In this example, initial principal payments range around $70. So when you send in your monthly mortgage payment, add an extra $70 to it and note on the coupon or mortgage voucher that the additional money is to go toward the principal. You still have to pay the mortgage the next month, of course, but what you’ve done is effectively cut one payment off the life of the loan. Do that whenever you have additional money on hand and two things happen: the equity in your home builds faster, and the loan balance decreases. Some mortgagers require that these additional principal payments reflect the exact amount of the next month’s due; others allow borrowers to contribute as much to additional principal payments as they wish. In every transaction involving real estate it is usually appropriate to retain an experienced Herriman Utah real estate lawyer. The following matters should be referred to the lawyer: A. Scope of Document Review. An experienced Herriman Utah real estate lawyer will review the purchase agreement before execution, if possible, to determine if any unusual provisions of state law may affect the agreement. If such review is not possible before execution, have it done as soon as possible thereafter. B. Local Compliance. An experienced Herriman Utah real estate lawyer will determine if the buyer will be able to hold title to the property, will have to qualify to do business, or will face any tax problems under state law. Special problems may be encountered when the buyer is a trust (e.g., if the trustee is a foreign bank, it may have to qualify to do business in the state where the property is located). In any case, an ancillary trustee is required in some states. Note that even if the real estate lawyer believes that it is not necessary for the buyer to qualify to do business to take title in the state, the title insurance company may require it to do so before it will issue title insurance. If the real estate lawyer determines that qualification is not necessary, we should confirm that the title company agrees with the opinion. C. Zoning Letters. An experienced Herriman Utah real estate lawyer will should obtain a letter from the appropriate local government authority stating that the property is in compliance with applicable zoning, environmental and other regulations. Written confirmation of such compliance may not always be available, but an effort should be made to obtain the best confirmation possible. Also, keep in mind that such written confirmation is probably not binding on the local agency. D. Leases. Send to your Herriman Utah real estate lawyer will all documents received for review from seller, including lease forms, to determine whether there are any problems with the documents under the applicable state law and to determine whether the documents should address additional matters. Ordinarily, the real estate lawyer’s review of leases should be limited to matters that might receive unusual treatment under the applicable state law. E. Taxes. An experienced Herriman Utah real estate lawyer will check state and local tax laws affecting the property. In particular, the real estate lawyer should confirm that the income from the property, when a tax-exempt entity will be the owner, will be exempt from state taxation. F. Bulk Sales. An experienced Herriman Utah real estate lawyer will should determine whether there will be any bulk sales requirements or any sales taxes applicable to the transaction. Also, ask the real estate lawyer to determine whether documentary transfer taxes or conveyance taxes will be applicable to the transactions and, if so, the amounts. G. Customary Procedures. An experienced Herriman Utah real estate lawyer will determine whether there are any customary procedures for sales of property in the particular state that are not considered in the purchase agreement. H. Title Insurance. An experienced Herriman Utah real estate lawyer will review the status of title and provisions for title insurance. Herriman Utah Real Estate Attorney Free ConsultationWhen you need help with a real estate case or lawsuit in Herriman Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with boundary disputes, easements, title problems, title insurance, contractor litigation, real estate purchase contracts and much more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Appointment A Personal Representative In A Utah Probate Case Bankruptcy Lawyer Park City Utah via Michael Anderson https://www.ascentlawfirm.com/real-estate-lawyer-herriman-utah/ In legal terms, all property will be classified as either personal property or real property. Each type of property is treated differently under the law. There are many different types of laws that specifically pertain to personal property, and many other types of laws that pertain specifically to real property. Personal property is movable property. It’s anything that can be subject to ownership, except land. Real property is immovable property – its land and anything attached to the land. Normally, a piece of property can be easily classified as either personal property or real property. The difference between the two is usually fairly straightforward. However, sometimes it’s a little harder to categorize property. An estate comprises the houses, outbuildings, supporting farmland, and woods that surround the gardens and grounds of a very large property, when people talk about estate planning; they’re usually referring to asset distribution. In other words, they’re talking about how your wealth, assets, pensions, and more will be gifted to your heirs after you pass away. But an estate plan is a bit more than that. In addition to determining who you’d like to give your money and property to, you should also be thinking about your healthcare decisions in advance. For example, some people have strict religious beliefs about being resuscitated or might not want to take certain drugs for personal reasons. Your estate plan can and should deal with these issues so that your loved ones don’t have to. An estate plan is made up of a handful of very important documents, each with a different and unique purpose. As we mentioned above, some of these estate planning documents let you choose what sort of care you want to receive in the hospital, while others can set up trust funds for your children or decide who will run the family business. In the simplest case, you prove ownership of a house with a registered deed to the property that has your name on it. However, this simple method isn’t always available. If property has been in your family for generations, documents may not be available. In an area devastated by a natural disaster, documents may have been destroyed. In these situations, you may have to take extra steps to prove ownership of a house. If you’re seeking disaster relief, you may need to prove occupancy in addition to (or instead of) proving ownership. • Get a copy of the deed to the property: The easiest way to prove your ownership of a house is with a title deed or grant deed that has your name on it. Deeds typically are filed in the recorder’s office of the county where the property is located. Even if you lost your personal copy of your deed after the destruction of your home or during a natural disaster, there should still be a copy of this document at the recorder’s office. If the recorder’s office was destroyed, contact your state government for more information on the registration of property records. • Produce copies of purchase documents: Even without a deed, if you have a copy of the contract you signed when you bought the house, you may be able to use it to prove ownership. However, this document only proves that you owned the house at some point in the house – it isn’t definitive proof that you still own the house. As long as no one else is challenging your ownership of the property, purchase documents should be enough to prove your ownership. You may have to combine them with other documents, such as receipts for property tax payments or a homeowner’s insurance policy. • Use the certificate of title for a mobile home: In most places, mobile homes are considered personal property rather than real estate. If you have the certificate of title for your mobile home, this can prove ownership in the house itself. The certificate of title for a mobile home typically won’t prove any ownership rights in the land underneath the mobile home, just the structure itself. • Gather property tax receipts: You don’t have to be the record owner of a piece of real estate to pay property taxes for it. However, if you’ve been paying property taxes for the same house for several years, that can be evidence that you own the property. Even if you don’t have personal records, there will be records of tax payments at the county tax assessor’s office. These records typically list the name of the person making the payment. Paying property taxes for a house can be used to establish ownership, even if you aren’t the record owner of the property. This is known as adverse possession. However, gaining clear title to property using this method is relatively rare. • Get copies of mortgage payment records: Without a deed or other ownership documents, you may also be able to prove ownership of a house if you can show that you have been making mortgage payments on the property. As with payment of property taxes, it’s unlikely someone would be making mortgage payments on a house that wasn’t theirs. You have additional proof of ownership if the mortgage is in your name, since the lender would have done due diligence to determine you were the rightful owner of the house before issuing the mortgage. Even if you’ve lost your personal records of mortgage payments, your mortgage company will still have them. • Provide proof of homeowner’s insurance in your name: Even if you no longer have a mortgage on the house, you likely still have a homeowner’s insurance policy to protect your investment and limit liability losses. The insurance company has records of your policy and all payments made. Insurance companies typically verify ownership of property before issuing a homeowner’s insurance policy. Additionally, it is unlikely you would pay homeowner’s insurance premiums if you didn’t actually own the house. • Complete an affidavit of ownership: An affidavit is a legal document you can draft and sign in the presence of a notary. When you sign this document, you are swearing under penalty of perjury that you are the owner of the property. While an affidavit of ownership does have legal significance, this method should only be used as a last resort to prove ownership of a house. If you do swear out an affidavit, support that document with as much other information as you have, including any mortgage, tax, or insurance records. • Gather identification documents: Many basic identification documents, such as state-issued driver’s licenses, include the address of your primary residence. The address of the house on official identification is strong evidence that you live there. While having the address on your driver’s license doesn’t necessarily prove that you own the house, it can help to prove that you live there. Particularly if you were the victim of a natural disaster, you may have to prove both ownership and occupancy to be eligible for some types of aid. • Get copies of sales agreements or other legal documents: If you purchased appliances or other supplies used in the house, the sales agreement may include the address of the house. Any other legal document that includes your residence would also have the address of the house. Court documents require your address, in part to establish that the court has jurisdiction. Other legal forms or applications may also include your address. If you’ve lost your copies of these documents, you may be able to get new copies at the courthouse, or by contacting the store or other person involved in the transaction. • Show utility bills in your name: Bills for water or electricity in your name are strong evidence that you live in the house. If you’ve lost copies of past utility bills, contact the utility company and ask for an account history or transaction record. Since virtually anyone can start utilities at a house, utility bills are never proof of ownership. However, they are solid evidence that you live in the house. If the utilities are not in your name, you may still be able to prove occupancy if you can demonstrate your relationship to the person who turned on the utilities. For example, if your mother turned on the utilities, that relationship would typically be sufficient. • Find official mail sent to you at the house’s address: It’s generally accepted that you live at an address if you gave that address out to businesses or organizations to communicate with you. Any sort of bills or statements with your name and address are sufficient. Mail provides better evidence if it is generated in the course of business, such as a credit card statement or a delivery notice. Anything that says “or current resident” (or similar) under your name won’t work to establish occupancy. • Submit a declarative statement: If all else fails, you can swear out an affidavit stating that you occupy the house in question. While you do sign the statement under penalty of perjury, this is considered the weakest form of proof and may not be accepted by some relief organizations or government agencies. Whenever possible, have other documents to support your declarative statement. Even if a document isn’t enough to prove occupancy by itself, it may gain strength when combined with other documents. • Call the local police to have squatters removed as trespassers: If the squatters have only recently taken up residence in a house you own, you may be able to get them charged criminally without much effort on your part. If the squatters have been in the home for several weeks, police may not be legally able to do anything to remove them. If you don’t take steps to legally remove them, they may be able to challenge your ownership of the house. If you are able to get squatters removed as trespassers, you may be able to press criminal charges, or to sue them in civil court (particularly if they caused damage to your property while there). • Serve an eviction notice if you can’t remove them as trespassers: While the specifics of eviction vary among states, the basic process is fairly similar. Get a sheriff’s deputy to serve the squatters with a written notice that they are being evicted. From the date notice is received, they have a limited period of time to leave the property, unless they choose to challenge the eviction. As strange as it may sound, if people live in a house for an extended period of time, they may acquire the rights of tenants – even if they entered illegally and have never paid you any rent. This gives them some rights to occupy the property until you can get a court order. You can find forms online to use to evict squatters from property you own. The easiest way to make sure the forms you get are valid in your area is to look for forms provided by the court where you will file your lawsuit for eviction. • Go to court to get the squatters forcibly removed: If the squatters stay in the house despite your notice, a judge will have to find that you own the property and that the squatters are there illegally. With a court order, you can get a sheriff’s deputy to forcibly remove the squatters. In court, you typically need a title deed or similar proof of ownership of the house to prove that you have the right to remove the squatters. • Visit all houses you own at least once a year: Once you’ve gone through the time-consuming and stressful process of evicting squatters, make sure it doesn’t happen again. If you own any houses that are unoccupied, check them regularly to make sure no one has moved in illegally. If you catch a squatter quickly, you may be able to call the police and have them removed as a trespasser without having to go through the eviction process again. You can also take additional steps to make the house less attractive to potential squatters. Install lights that are set on a timer, and place security cameras at the entrances. Keep the yard neat so the house doesn’t appear abandoned. Real Estate Lawyer Free ConsultationWhen you need help with real property or real estate in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Quiet Title Actions. Evictions for Landlords. Partition Actions. Zoning and Use Matter. Lawsuits and Litigation. Chains of Title Issues. And Much More. We want to help you with your real estate matter.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Tenant Bankruptcy Affects A Landlords Eviction Rights via Michael Anderson https://www.ascentlawfirm.com/is-a-house-considered-real-estate/ If you are unable to pay off your student loan debts, speak to an experienced Park City Utah bankruptcy lawyer. While bankruptcy does not discharge a student loan debt, you may get some benefit by filing for bankruptcy. Since the mid-1990s, there has been frequent and consistent criticism of the U.S. Department of Education’s oversight of student loan companies. This criticism has come from a variety of sources, including members of Congress, public interest groups, and grassroots organizations. Even the Office of the Inspector General for the U.S. Department of Education has issued scathing criticisms regarding the department’s oversight of its loan programs. Since the 1970s, the burden of college tuition has shifted dramatically from the state to the student. In 1977, it is estimated that students and their families borrowed about $1.8 billion through U.S. federal loan programs in order to attend college. By 1989, this amount had increased to twelve billion dollars. By 1996, it had soared to thirty billion dollars. Today, more than seventy billion dollars is borrowed through federal loan programs, and more than fifteen billion dollars is borrowed annually from private lenders. Congress’s removal of standard consumer protections for these loans, the growing tendency to attach fees to the debt, and the collection methods that student loan companies were allowed to use all set the stage for unprecedented profiteering by the lending industry. It is not surprising that many personal fortunes were made by well-connected student loan executives— particularly after the amendments to the Higher Education Act in 1998. In practice, student loan guarantors do two things. First, they extract significant funding from the federal government in return for serving in an extremely vague and ill-defined oversight capacity to the lenders. They themselves enjoy very little oversight from the federal government. Private Student Loan In BankruptcyA great number of borrowers were thrust into financial insolvency due to family medical situations, and many were forced into bankruptcy because of overwhelming medical bills. In these cases, student loans, being nondischargeable in bankruptcy and inescapable unless the borrower can prove total and permanent disability, become a crushing weight—particularly after the penalties and fees that result from defaulting. Another type of consumer who is saddled with unmanageable student loan debt is the borrower who has taken out a private loan. The numbers in this group are growing very quickly. These borrowers tend to realize when they’re fairly young that their financial situations have become desperate. Private student loans are nondischargeable in bankruptcy, just like federal loans, but they carry far higher interest rates. These borrowers thus find themselves with skyrocketing amounts of debt more quickly than those who have federal education debt alone, but neither group of distressed borrowers has any power to negotiate for better repayment terms or for reasonable compromises. Cosigning Parents In BankruptcyThere has been an alarming increase in the number of parents who are faced with financial ruin because they cosigned loans for their children. This is due primarily to the explosive growth of high-interest private loans in the past decade, but it is also fueled by a growing number of parents who are taking out federally guaranteed PLUS loans so their children can go to college. In both cases, bankruptcy is not an option for these loans, and parents often have to liquidate assets in order to satisfy this debt. Senior Citizens Losing Social Security BenefitsOne increasingly common tactic used by guarantors and collection companies to extract wealth from student loan debtors is Social Security garnishment. Typically, this is an administrative action; in other words, in the case of defaulted student loans, no court order is required to attach a senior citizen’s benefits. Federal disability income can also be garnished in this manner. Private student loans have exploded to rival federally guaranteed loans in the industry. In a few short years, they have grown to encompass nearly a quarter of the entire industry, and the airwaves are saturated with ads for these dangerous debt instruments. Many students make the mistake of applying for private loans instead of federal loans because they are attracted to the ease and quickness of the application process. However, the ease of applying can come at a great, often ruinous cost. Interest rates can be astronomical, and, like federal loans, the bankruptcy protections for private loans are extremely limited. This makes the lenders far less willing to negotiate with students facing financial difficulty. Use Federal Loans FirstFederal loans are always, without question, the more beneficial types of loan. While private lenders advertise heavily on campus, on the radio, and on television, private loans are never better than federal loans. Federal loans always have lower interest rates (set by Congress). Many are subsidized, so that the interest is paid while the student is in school. Federally guaranteed loans also have more flexible repayment options and federally mandated deferment and forbearance programs, which private loans do not offer.2 Also, for federal loans, there are at least some circumstances in which loans can be forgiven, including the death of the student, total and permanent disability of the student borrower, school closure, and others. If a student’s financial aid package falls short of covering costs by using just federal loans, then that student should give serious consideration to attending a less expensive college. Prior to Obtaining ThemMost defaulted borrowers had no idea that student loans could not be refinanced after consolidation, were largely exempt from bankruptcy discharge, and had no statutes of limitations for their collections. The vast majority of defaulted student borrowers also were never told about the massive penalties and fees that would be attached to their loans if they defaulted; they had to find out the hard way, after it was too late. No mention was ever made to them that their professional licenses could be suspended and their income tax returns, wages, and Social Security income could be seized as a result of their defaulting on their student loans. Graduation: To Consolidate or NotGraduating from college or leaving school for other reasons represents a critical juncture with regard to student loans. It is here that the most students consider whether or not to consolidate their loans, which means bundling loans into a single loan with a new (or the same) lender. The interest rate for consolidation loans is the weighted average of the original loans rounded up to the nearest eighth of a percent. For federally guaranteed loans (such as Stafford, PLUS, and so forth), consolidating loans is allowed only once; therefore, after a student consolidates, he or she is stuck with that lender for the life of the loan. Of course, if a borrower takes out an additional loan, consolidation can occur again, but it is not advisable to take out a student loan for the sole purpose of consolidation, although perhaps leaving a small loan out of the consolidation would be a prudent action to take to preserve the option of refinancing later. For federal loans, companies often offer some discounts for consolidation, such as interest rate reductions for on-time payments and automatic withdrawals, but only a minority of borrowers actually receive these benefits throughout the life of the loan. For one reason or another (for example, a missed payment or a late payment), these benefits are taken away from perhaps 90 percent of borrowers. In fact, most borrowers who lose prompt payment discounts do so on the very first payment. Also, consolidation of loans often results in the loans being changed from subsidized to unsubsidized. This can have a significant effect on the borrower if a deferment is required in times of unemployment or other periods of financial distress, since the government pays the interest on the subsidized portion of the loan during deferment (but not forbearance). Borrowers should prefer deferments over forbearances and try to pay at least the interest during a forbearance to keep the loan balance from growing. It cannot be emphasized enough that under current federal law, consolidation of student loans represents the last opportunity the student will have to shop his or her loans around to find the best terms. Until federal law opens up the marketplace to more competition and provides borrowers with the freedom to refinance the debt, borrowers must do as much research as possible on this prior to consolidation so they are able to make informed decisions based on the range of possible scenarios that might befall them. Web sites like FinAid.org provide current information about borrower discounts available for student consolidation loans. FinAid.org also provides a wide array of cost and repayment calculators that the borrower would do well to try before making any final decisions about loans. Loan Forgiveness for Public ServiceFor people who have a large amount of debt and who plan on entering public service after graduation, a new program passed into law with the College Cost Reduction and Access Act of 2007 may be the only way to pay off student loan debts in a reasonable amount of time. It is the public service loan forgiveness program, and it forgives the remaining balance of Direct Loans after 120 payments are made. There is a requirement, however: borrow ers must be employed full-time in a public service job while repaying the debt. This includes working for federal, state, or local government, 501c(3) nonprofit organizations, law enforcement, and other positions as defined by the new legislation. This program is very attractive for new graduates who have high debt loads and career aspirations in the public sector. However, the borrower must have a loan through the Direct Loan Program, which means that FFELP borrowers have to consolidate their loans into this program. The program is also attractive in that an income-based repayment plan or income-sensitive contingent repayment plan can be used throughout the term. It does have its risks also, though. For example, under current law, the amount that is forgiven at the end of the ten-year term is counted as taxable income. This could be a very large amount, depending upon the original debt load of the borrower and his or her income during the repayment period. Here is another risk: borrowers who decide after a few years of repayment that public service isn’t for them may be worse off than when they started, since any unpaid interest is capitalized. For defaulted borrowers whose debt loads have already skyrocketed and whose earnings are low, this taxable event could prove to be devastating. Other problems exist with the service forgiveness program from the perspective of longtime defaulted borrowers and are described in the previous chapter. For defaulted borrowers in this circumstance, unfortunately, there simply are no workable options under the current law that would allow the debt to be satisfied in a reasonable amount of time. If you are overburdened with student loan debt and you are unable pay it off along with other debts, consult an experienced Park City Utah bankruptcy lawyer. Park City Utah Bankruptcy Lawyer Free ConsultationWhen you need debt relief to stop a garnishment, get a repossessed car back or help to have a fresh start, please call Ascent Law LLC (801) 676-5506 for your free consultation. We can help you file a chapter 7 bankruptcy. Chapter 13 bankruptcy. Chapter 12 Bankruptcy. Chapter 9 Bankruptcy. Chapter 11 Bankruptcy. Help with a Loan Modification. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Who Qualifies For A Loan Modification? via Michael Anderson https://www.ascentlawfirm.com/bankruptcy-lawyer-park-city-utah/ In common law jurisdictions, a personal representative or legal personal representative is a person appointed by a court to administer the estate of another person. If the estate being administered is that of a deceased person, the personal representative is either an executor and if the deceased person left a will or an administrator of an intestate estate in other situations, the personal representative may be a guardian or trustee, or other position. As a fiduciary, a personal representative has the duties of loyalty, candor or honesty, and good faith. In either case of a deceased estate, a probate court of competent jurisdiction issues a finding of fact, including that a will has or has not been filed, and that an executor or administrator has been appointed. These are often referred to as “letters testamentary”, “letters of administration” or “letters of representation”, as the case may be. These documents, with the appropriate death certificate, are often the only license a person needs to do the banking, stock trading, real estate transactions, and other actions necessary to marshal and dispose of the deceased’s estate in the name of the estate itself. If you are named as executor or appointed by the court, you will take responsibility for properly handling and distributing the assets in the decedent’s estate. Understanding an Executor’s DutiesLearn what an executor does: Generally, an executor (or “administrator” or “personal representative”) preserves the deceased’s estate in order to pay off debts and taxes before distributing the remainder to the people entitled to it. The full set of duties is extensive. A partial listing includes: • Filing the will in the probate court: You must file the will in the appropriate local court even if the will does not state that you must do this. • Determining whether the will needs to be probated: Not every will needs to go through probate. Depending on your state, you may be able to avoid probate altogether by using a “summary administration” procedure or by using informal administration. You will need to consult your state law to determine what non-probate options are available. • Finding the deceased person’s assets and keeping them safe: You will need to collect estate property held in the hands of other people. You must also protect them. This may require that you rent storage facilities. • Contacting agencies and businesses: You will need to close various accounts that the deceased had, such as bank accounts, credit card accounts, and various insurance policies. You will also need to contact pension plans, the Social Security Administration, and any other governmental or private organization that paid the deceased benefits. • Finding creditors the deceased owed money to and paying off legitimate claims: If you know the creditors by name, then you will contact them directly. You will probably also have to advertise in a newspaper where the decedent lived. After you receive claims on the estate, you will have to decide which are legitimate and pay them. • Contacting anyone in debt to the deceased and collecting on the debts: As the executor, you will need to make sure that you collect on debts owed to the deceased so that this money can be added to the estate and then distributed to beneficiaries. • Paying taxes: If the estate owes taxes, then the executor is responsible for making sure that they are paid accurately and on time. • Distributing property specifically given to beneficiaries or heirs: • Liquidating the remainder of the estate: Some estate property will not be distributed by the will; also, no family members may want them. If this is the case, you need to sell this property and then distribute the proceeds to beneficiaries. • Closing the estate: As the executor, you will be responsible for informing the court that all assets have been distributed and you must petition to close the estate. Understand potential liability: As an executor, you have a duty to exercise reasonable care when dealing with the estate’s property. You also owe the beneficiaries a duty of loyalty and good faith. If you breach either of these duties, then the beneficiaries could sue you in court. • You will discharge your duty of reasonable care if you use the same amount of care when handling the estate’s property as you would use when handling your own. You discharge your duty of loyalty when you administer the estate solely in the beneficiary’s interest and not in your own. • State law may impose additional fiduciary duties, which can often be quite specific. For a full list of fiduciary duties, you should contact a lawyer. Research potential compensation: You typically can be compensated for the work that you perform as the executor. Compensation levels depend by state. States often peg the amount of compensation to the size of the estate. • The amount of time you have to commit: Look over the list of responsibilities and then take a look at the size of the estate. An executor can spend six months or more administering an estate. • How familiar you are with the estate: If you have been helping an elderly parent get his or her financial assets in order, you may be very familiar with the estate already. This familiarity can increase your comfort in the role of administrator and the speed with which you can handle the administration. • How well you get along with the beneficiaries: If you are afraid of being second-guessed, or if you think emotional disputes are likely, you may not want to serve. • Whether or not there is anyone else who can do the job or help serve as co-executor: If you think someone would be more competent at the job, you may wish to defer to her or him. • You should realize that even if you are named as the executor in a will you can decline. • Also realize that you can stop being the executor at any time. You will need to provide the probate court with a written record of what you have done. Meet with an attorney: If you have questions about being an executor, including the extent of fiduciary duties, then you should contact an experienced attorney. A probate attorney can also help you consider whether or not you want to be the executor in the first place. • Should you become the executor; some states will require that you hire an attorney. You can find an experience probate attorney by contacting your state’s bar association, which should run a referral service. Requesting Appointment as Executor if not Named in the WillGet a copy of the form for appointment as executor: If you have determined that you are qualified to serve as the executor of the decedent’s estate, then contact the probate court to get the form necessary for appointment as executor from the Clerk of Court. • You can get the form online or by visiting the court in person: Forms vary from state to state, so make sure that the form you fill out specifically references your state. Fill out the application form properly: Make sure that you follow all instructions when completing the form. Avoid common mistakes when filling out the form. These might include: • Not correctly notating the full name of the deceased. • Incorrectly completing the information asked for. • If you have any questions about completing the application, contact the clerk of the probate court. Many clerks will help potential executors and answer questions. Have form notarized: Most states require that the form be notarized, sworn to or witnessed. Find a notary public in your area. • Be sure to bring sufficient personal identification. Typically, a valid driver’s license or passport will suffice. Identify if you need additional documentation: Some jurisdictions require other information from potential executors; make sure that you know what documentation you need and bring that documentation to the probate court with you. • You will likely need to include a death certificate for the decedent as well. • Bring your application to the Court Clerk’s office. File your application in the jurisdiction where the estate is held. • You don’t need to make an appointment, but you should check the hours of the Office either online or by calling. • Be sure to make multiple copies of the forms for your own records. Send out a Notice of Application: Typically, you must also notify persons with an interest in the estate that you are applying to be executor. Most states have a “Notice of Application” that you may send out to all estate beneficiaries or interested parties. • Publish a notice in the local newspaper. Check with the court to ensure you are doing this properly. • Send a notice to beneficiaries, heirs and creditors. • Alert the court that you have distributed Notice of Application. • If the will’s testator names an executor in the will, the bond may be waived. This may be the case if the testator specifically states that the executor does not have to secure a bond. • A bond is typically required in all other circumstances. That is, a bond is required when the will does not waive the requirement for the named executor. A bond is also required if the will does not name an executor at all. • To obtain a surety bond, search online for a company that provides bonds for your area. You can also check with the Clerk of Court, who will be able to recommend a reputable company. Attend the hearing: At the hearing, any beneficiaries or heirs present may object to your appointment as executor. At the same hearing, the court will attempt to validate the will, which may also be challenged by someone. • If there are no objections to either the will or your appointment as executor, then there may not even be a hearing. Handling a Contest of Your ApplicationContact an attorney: If someone files an objection to your appointment, contact a probate attorney for advice on how to fight the challenge. This attorney will give you advice on the best strategies for winning your case at a trial. • Consult with an attorney experienced in probate law, with experience in trial work. You can look at the attorney’s website to see if he or she has handled contested wills or appointments before. Be sure to ask about any relevant experience when you meet for a consultation. • Also look for certification in probate. Some states will grant specialty certification to attorneys in various areas, including probate. To qualify, the attorney must have demonstrated significant involvement in the field and pass a written exam. Develop a trial strategy: You may not know why you are being challenged. Nevertheless, there are common grounds for challenging the initial appointment of an executor. For example: • The objector might argue that the will is invalid. For example the will may have been forged or improperly witnessed. • The objector might claim that you are unfit to serve. For example, if you served jail time, then the court could find you unfit. Also, if you lack sufficient mental capacity, then the court may grant an objection to you serving as executor Schedule a trial: If someone contests your appointment as executor, the probate court will schedule a trial. The trial will allow you and your challenger to present your respective cases. • You will probably attend a hearing before the trial. At the hearing, you will learn why the objector is challenging your appointment. You will also set a trial schedule and trial date. • Only parties who have a stake or possible stake in the decedent’s estate can challenge the appointment of an executor. Present your case at the trial: You or your attorney can present your case to the judge. It is best to have an attorney, as probate issues can be complicated. • Your evidence will track whatever the objection is. For example, if the objector claims that the will was improperly witnessed, then you will need testimony from the witnesses. This testimony should affirm that the deceased was in sound mind when he or she signed the will. • If your capacity to serve is challenged, then you may need to present evidence of your mental condition. Talk with your lawyer about what evidence you would need. Wait for the judge’s ruling: After hearing both sides of the case, the Judge will either rule on your appointment immediately or take the issue under advisement and issue a written ruling at a later date. If you are appointed, the court will prepare a certificate of appointment for you, which will designate you as the executor of the estate. In some states, this document is called the “Letters of Administration.”If you are not appointed, the Judge will appoint another executor in your stead. Don’t delay after being appointed executor. Some decisions must be made fairly quickly. Any delay may result in more difficulty in locating and preserving the assets. If you are appointed as executor, consult with an attorney experienced in probate law. Probate Lawyer Free ConsultationWhen you need legal help with a probate or administration of a probate estate in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with Estate Planning. Probate. Estate Administration. Wills. Trusts. Durable Powers of Attorney. Health Care Directives. Irrevocable Trusts. Charitable Trusts. Asset Protection Trusts. And Much More. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/appointing-a-personal-representative-in-a-utah-probate-case/ Currently, the United States has a child support enforcement system that is the product of a strong federal-state partnership with highly particularized niches of authority. The balance of power within this partnership, however, has not always been stable. Early initiatives, those taken prior to the creation of a comprehensive program, emanated from Washington, D.C., as national legislators focused on strengthening each state’s Aid to Families with Dependent Children program–the primary cash assistance vehicle serving low-income families–as a means to support families in need. Later efforts involved building the new child support program itself, and debates about the federal-state balance were largely decided in the states’ favor. Today, states find themselves once again in an evolving relationship with the federal government. National policymakers have increasingly placed new requirements on the states to meet specific policy goals, but the states have retained a certain degree of autonomy in meeting those goals. Proper child support is an issue that has confronted American society for over a century. Today, we see the most conspicuous ramifications of this problem everywhere, from those impacted children living in desperate poverty to those who go to bed hungry every night to those who lack basic medical care. Perhaps even more widespread are those effects that are less overt but equally invidious–children who perceive, because of their lack of financial support, that their parents do not care about their well-being. These are the children who end up dropping out of school, becoming pregnant, having scuffles with the law, and becoming involved with drugs. In each of these cases, the underlying problem remains the same. What do we, as a society, do when a father, usually the primary breadwinner of the family, cannot or will not provide for the children he brings into this world? Both during and immediately after the Revolution, American courts lacked a common law version of a child support duty. This was because most American laws were based on English precedent, and there was no basis in English law for mothers to collect support from their former spouses. In fact, all that the English law provided was a “principle of natural law” that all parents should support their children; no third party–including a mother–could attempt to collect money from her former spouse to help her raise her children. American courts thus “invented” the common law notion of child support, without reference to any European standard, in the early nineteenth A parent is under a natural obligation to furnish necessaries for his infant children; and if the parent neglects that duty, any other person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent. In this case, the justices maintained that the father was actually successfully supporting his son, and that therefore the merchant had no claim in compelling the father to pay for the coat. Thus, while articulating a principle of parental responsibility, the court asserted that only cases where third parties provided necessities to minors could result in enforceable claims. While the plaintiff could not recover damages in this case, Van Valkinburgh v. Watson and Watson did lay the groundwork for the principle of allowing third parties to recover significant child care costs. Tomkins v. Tomkins (1858), decided in the New Jersey court system, endorsed this precedent, and in this case found the father liable to a third party. The specifics of the case were as follows. In 1833, Mr. Tomkins left his wife and his child, and he failed thereafter to provide them with any material support. The mother sought aid from an almshouse, and the child went to live with her grandmother. Representatives of the grandmother, the mother, and the child aimed to convince the court that the father had deserted them, and thus sought proper restitution. Lawyers for the father claimed that the father was under no legal requirement to support his child, an assertion that the court quickly rejected. Lawyers for the father make the claim that a parent is under no legal obligation to support his child, and that whoever furnishes a child with necessaries, must do it gratuitously; that no recovery can be had for such necessaries, unless they were furnished under an express contract with the parents…. Such is not the law in New Jersey. A parent is bound to provide his infant children with necessaries; and if he neglects to do so, a third person may supply them, and charge the parent with the amount. The court went on to further castigate the father in question for his delinquent behavior; at the same time, the justices recognized that they were, in fact, “creating” new law. The court maintained that Mothers as Complainants in CourtIn addition to third parties, mothers themselves who wished to sue for support could also file civil claims. The mothers who made these claims, however, faced an additional burden in court. Not only did they have to prove that they were destitute, they also had to show that they were not at fault with respect to the divorce. Significantly, if the wife were at fault, then she would not be entitled to collect support. Connecticut’s Stanton v. Stanton (1808) was one of the first cases that outlined the legal course of action for mothers acting on behalf of their children. In this case, Eunice Stanton sued the estate of her deceased exhusband, John Bird, in order to recover expenditures laid out for their children that were subsequently paid for by her second husband, Joshua Stanton. The facts of the case were straightforward. Eunice married John Bird in 1789, had three children, and subsequently divorced him in 1797. She immediately took custody of her two youngest children, William and Maria; her oldest son, John Herman, continued to live with Bird. In 1803, Eunice married Joshua Stanton, after which, in 1805, her eldest son came to live with her (he claimed abuse by Bird). During the time that the three children lived with her and then with her new husband, Eunice Stanton claimed the expenses. With only the bare bones of a legal precedent establishing a fundamental duty of parents to provide for their children, the justices in the state of Connecticut nonetheless carved out such a duty in their decision by pointing to the financial “dissolution” of the wife upon marriage. As was common law at the time, when a woman became married, all of her assets were transferred to her husband’s name. This was the doctrine of coverture, which had evolved as part of English law beginning in the Middle Ages. As the husband was defined as lord of the manor during the Middle Ages, men were defined as “personifying” the entire marital relationship during the eighteenth and early nineteenth centuries in America. The court reasoned that this transferal, while a boon to the husband financially, also bestowed upon him certain responsibilities for his children. The court therefore ordered the estate of John Bird to reimburse his ex-wife for the expenses. Charity Organizations And Local Law EnforcementWhile the courts were beginning to establish a common, civil basis for third-party benefactors and mothers in search of child support, certain social trends during the latter half of the nineteenth century prompted the legislative branch to address the nonsupport issue as well. The first set of trends involved the changing nature of the American family, and the second revolved around the breakdown of the poor relief system that had served as the primary safety net for decades across American towns. These trends gave rise to the most powerful agents for action in the child support system prior to the early 1900s–private charity organizations working with local law enforcement. Divorce was rare in the American colonies, as the early settlers brought with them from England the most strictly interpreted traditional and religious ideas concerning the sanctity of marital vows. Once the Americans achieved independence, however, they began to experiment with new ways of developing family law. The states first eliminated the private bills of divorce granted by the legislatures that had been common in the initial years of the republic, replacing them with general divorce statutes applicable to all divorce-seeking parties. Despite this liberalizing trend, the number of couples filing for divorce remained quite low. With the country still heavily reliant on agriculture to fuel the economy, families were wedded to one another in tight-knit communities. These interconnections provided strong social sanctions against any type of misbehavior, such as adultery or desertion, that might serve as a precursor to divorce. The rise of industrialization in the latter part of the nineteenth century, however, brought with it a massive disruption in the social order of American life. For the first time, the cities drew workers by the thousands to labor in factories, offices, and all types of manufacturing plants. With the transplantation of families from the rural countryside to the urban centers also came the anonymity of city life and the newfound freedoms associated with such a constantly mobile existence. No longer subject to the community sanctions that had preserved family units in the countryside, workers–in particular, male laborers–were much more willing to flout their responsibilities to their wives and children in the name of individual financial, emotional, or sexual gain. Changes in state divorce laws reflected these new economic realities, although these transformations were by no means uniform. By 1905, while South Carolina still disallowed absolute divorce, and New York permitted divorce only in cases of adultery, most other states had enumerated a much longer list of justifiable actionable causes. These included bigamy, extreme cruelty, conviction of a felony, habitual drunkenness, as well as other factors. These more liberal divorce laws provided the opportunity for increasing numbers of couples to seek out a legal end to their union. Although early divorce statistics are somewhat sketchy by modern standards, it has been estimated that there were 2.8 divorces per 100 marriages in 1867. By 1890, the number of splits rose to 5.8 per 100 marriages, and by 1910, to 8.8 per 100 unions. As divorce was becoming more prevalent, Americans were changing their views of children. In the early 1800s, most Americans viewed children as “miniature adults” capable of the same thought processes, emotional responsibilities, and physical tasks as their older counterparts. Children commonly worked in factories, logging in roughly the same hours as the adults seated next to them. This was especially true in working-class families. Children, and not wives, were normally sent out to be the secondary wage earners in their families. Their labor was seen as a normal part of growing up, or simply as the price to be paid for receiving room and board within a traditional family unit. With children seen as economic assets, fathers normally assumed custody in cases of separation or divorce. With the spread of these new attitudes in the industrial arena, the states themselves took a greater interest in protecting the well-being of the children living within their borders in other respects as well. By the middle of the nineteenth century, most states had adopted some version of the Elizabethan poor laws, which had been developed in England in 1601. One of the laws’ central components was the provision that required parents to support their children if the youngsters–in the absence of such support–would otherwise become paupers. But this provision was very loosely interpreted. With the spread of industrialization and the ramifications created by a loosening social structure, however, the towns experienced increased pressure to help families in need. This pressure, interestingly enough, fell upon the charity workers–the precursors of today’s professional social workers–who were then laboring in mostly private organizations. As fathers began to desert their families in higher numbers than ever before, charitable organizations were overwhelmed with single mothers requesting financial support. Aid was not disbursed liberally or freely, however. The type of relief that these private groups favored was very specific and pivoted on one specific moral theme: it could not serve to weaken the character of the person receiving the aid. This vision of a great and upstanding society was propagated by leaders of the Charity Organization Society (COS) movement. The first such organization began 1878 in Buffalo, New York, and the movement spread throughout the country from there. While each local group was different, generally its members shared at least one common belief. In their view, striving to be an affluent member of society should be the goal of every man and woman across the nation. If someone were poor, according to Mary E. Richmond, one of the movement’s leaders, it was probably the result of a moral failing on his or her part. Public relief, therefore, had to be condemned at every turn, since it only fed into this depraved moral state. The proper role of charity, then, was simple. Private citizens should set an example for the lowly, inspiring them to find the direction and the help that they needed through personal efforts and family relationships to rise above their current situation in life. What this meant in practice was that local Charity Organization leaders would take it upon themselves to visit families “in need” in order to determine the true cause of their deprivation. Only truly deserving families would receive financial assistance; the others–the lazy, the slovenly, and the cheats–would have to pull themselves up by their own bootstraps. The COS movement and all of its affiliated private agencies held fast to this belief system in all areas of welfare work, including the case of deserted children. In her analysis of the issue, Richmond argued that the problems of children being raised by “married vagabonds” were difficult to solve, but not impossible. The teams of “friendly visitors” played an important role in addressing these families’ needs, and were much more important than the provision of public relief. In order to insure support for families over the long run, then, COS movement leaders advocated a hard-line approach. To the greatest extent possible, aid had to be kept to a minimum. Only when all else had failed would the town provide assistance and use the full extent of the law to pursue the wayward father. When it came to actually attending to the problems of single mothers, however, charity workers, while mostly attentive, were simply overwhelmed by the task before them. Most of these organizations simply could not meet the demand at hand, and therefore took two forms of remedial action to address the crisis. First, charity workers appealed to the state legislatures to enact stricter criminal penalties for fathers who deserted their families. They advocated jail time, fines, or some combination of the two punishments. These lobbying efforts were critical because, at the turn of the century, only four states considered desertion or abandonment to be a felony, thereby reducing the possibility of punishment for wayward fathers to close to zero. Moreover, even those states that did have laws against desertion on the books typically had low fines (approximately $100) and brief mandatory jail sentences (three months). However, by 1911, organized charity workers had pushed seven states into passing tough new felony laws, and had increased penalties in eighteen other states to fines up to $1,000 and jail sentences of up to one year. Second, relief workers in private agencies began to serve as important liaisons among mothers, fathers, and the state. The new criminal laws passed by the states enabled the support collected from fathers to be directly transferred to the mothers in question or–even better, from the agencies’ point of view–through the agencies from the fathers to the mothers. Private agencies took advantage of this legal remedy by acting as intermediaries between these parties: representatives from these groups began bringing charges against specific fathers in the court system in order to compel them to pay. An additional complication for the towns that were seeking financial compensation for helping single mothers in need was the problem of interstate flight. As fathers became more mobile and job opportunities opened all over the country, fleeing one’s state of origin became a common method for escaping the obligation of supporting one’s children. The National Conference of Commissioners on Uniform State Laws (NCCUSL), the organization that encourages uniform legal standards across the country, attempted to deal with this problem on numerous occasions. In 1911, the commission proposed the Uniform Desertion and Non-Support Act (UDNA), which was later adopted by eighteen states. The UDNA made it an offense for a father to willfully desert his children and fail to pay support. Unfortunately, the initial incarnation of this interstate enforcement law was inadequate, because it was difficult to prove whether a father had “willfully” left his family or simply left his hometown temporarily in search of employment. The Uniform Support of Dependents Law (USDL), adopted by several states in 1944, improved upon the UDNA by requiring that fathers support their children in other states that had similar support laws. Yet, despite these improvements, interstate enforcement continued to be an enormous problem. Beyond these laws that applied to the families just described, it is important to point out that there were three categories of children to whom standard child support policy did not pertain: out-of-wedlock children, African-American children, and children with deceased fathers. Society held parents of these children to different standards, and thus meted out either rewards or punishments according to highly particularized rules and norms. By far, out-of-wedlock and African-American children fared the worst, while children of widows received relatively better treatment under the law. Although by 1921 forty states had such programs in place, there were two severe problems that prevented the programs from making a substantial impact on the largest number of potentially eligible women. First, the benefit levels were, by any standard, extremely low. States permitted localities (usually counties) to run these programs, and most never came close to funding the program at an adequate level. In 1930, when the mother’s aid committee of the White House Conference on Child Health and Protection recommended average grants of at least $60 per month, only eight cities throughout the United States were meeting this goal. In 1931, the median grant was $21.78 per month. Most mothers therefore had to find supplemental income even if they were able to secure a pension. Second, women had to qualify for the benefit by passing a character test; if caseworkers found that the mothers were unable to provide a suitable home for their children, these women were immediately expelled from the rolls. A new child support system seemed desirable, a system that would guarantee consistency in payments and not discriminate among potential recipients. Beginning in the early nineteenth century, the United States was known as a country where private charities, churches, and other philanthropic organizations were the sole service-oriented entities to take care of those in need. The Charity Organization Movement had institutionalized a series of policies and procedures to deal with the problems of the poor. This involved using “friendly visitors” and intensive casework to help correct the perceived moral failings of those in need. Movement organizers frowned upon public relief while extolling the virtues of private volunteers to assist in moving families out from the ranks of poverty. While the Great Depression and the resulting New Deal programs had somewhat softened the nation’s attitude toward increased governmental involvement in the economy, reliance on private charities with their focus on holding fathers accountable continued to be the dominant social service safety net paradigm. In addition to opposition from private charities, social workers advocating a larger public role for themselves also encountered difficulties from state law enforcement personnel. Since the nonpayment of child support was considered a criminal act, it was up to the local police to apprehend these offenders. Police did not consider the mothers to be the problem–it was the fathers who needed jail time and local rehabilitation. District attorneys agreed with this approach, and repeatedly filed charges against fathers who had abandoned their most basic of duties–the financial support of their families. Social workers who advocated a new public role for their profession thus faced two sets of incumbent policy entrepreneurs that would be difficult to thwart. They therefore had to carefully craft highly effective and cooperative risk-reduction strategies in order to move their case forward. The Great Depression highlighted divisions within the occupation of social work that had been brewing for several decades. On one hand, thousands of social workers continued to support the efforts of private charity societies to handle the economic devastation of the early 1930s. They insisted that casework was still the most appropriate model for handling poverty in single-parent families, and they rejected the notion that social workers should engage in cooperative relationships with federal officials in order to achieve certain societal goals. Moreover, they frowned on what they viewed as the dilution of their membership by untrained, unskilled relief workers who had no commitment to the occupation’s status as a whole. By remaining insulated from these external pressures, they hoped to preserve the integrity of the profession. Social workers who advocated on behalf of a more public approach to their profession, of course, viewed their role vis-à-vis society completely differently. The massive dislocation of workers during the 1930s had infused in them a new mission and sense of urgency. With the number of needy families increasing exponentially all around them, these publicly oriented social workers welcomed the financial support they received from the federal government in such legislation as the Federal Emergency Relief Act and the Social Security Act. They recognized that with the weaknesses inherent in the modern economy, they could no longer work in isolation from the public purse. Instead, they needed to work in conjunction with federal programs in order to best achieve their goal of a more affluent and productive society. By the mid-1970s, child support enforcement in the United States had undergone a massive transformation. Gone were the days when social workers controlled the agenda. Gone were the days when the primary focus of this public policy was distributing benefits to mothers and providing them with intensive job training and educational services. Gone were the days when welfare budgets would continue to rise without accountability. No, these were the days when the conservatives reigned supreme in child support policy. Through the early 1970s, they carefully constructed a new child support program that placed the federal government in a new partnership with the states to pursue fathers for financial resources, rather than to offer services to single-parent mothers. This approach, they reasoned, would provide solid relief for their current budgetary woes, where deficits prompted by exploding welfare costs dominated the election-year debates. Women leaders wasted no time in laying out what they viewed as the dismal state of the child support system as it existed in the mid-1980s. While during the 1960s social workers had argued that the child support crisis was the product of a lack of economic opportunity for families, and during the late 1970s conservatives argued that it was the result of familial breakdown and welfare dependency, in the 1980s women located the cause in the realm of financial vulnerability. To women leaders hearing from their female constituents, the key factor behind the child support crisis was the government’s lack of effort in preventing women from becoming dependent on AFDC in the first place. If women not receiving welfare wanted to receive child support, they had to turn to the courts for help. In the 1970s, then, most elected officials argued that middle and upper income fathers would simply “do the right thing” without the government having to oversee the execution of their financial obligations. The legislative language that established the 1975 child support program reflected this perspective, with the majority of resources directed at fathers of children on welfare. Yet, as women leaders pointed out in the mid 1980s, Senator Long’s optimistic predictions about paternal behavior in middle-class families did not come to fruition. Non-AFDC fathers were simply not doing the right thing. The non-AFDC population thus faced an entirely different institutional environment than its AFDC counterpart with respect to the child support problem. In this separate legal framework–the courts–they had a unique set of policy tools at their disposal, which were designed, in theory, to meet their unique needs. Yet the courts, as will be demonstrated, were not adequate to the task at hand. To complicate matters from the start, each state was unique in its method of deciding child support cases. During the 1970s, the level of court complexity was overwhelming. One result of this disjointed court organizational scheme was the duplication of child support services. One court would enter a judgment on a case, and then another would do the same without knowledge of the first court’s action. Moreover, even if the record showed that another order existed, judges would often take liberties and go about modifying these earlier decisions anyway. Linked to this duplication problem was a similarly frustrating issue–the fragmentation of responsibility that prevented support cases from being processed in an orderly way. Without a single source of accountability, many families were at a loss when a discrepancy occurred in their case account or when a father missed a payment completely. Tracking the path of a single check through this byzantine system proved to be too overwhelming for many single parents, who resigned themselves to accepting nonpayment as a fact of life. Both the federal government and the states were slow to recognize this problem. Indeed, prior to 1984, only half of the states were offering full or partial enforcement services to non-AFDC families who requested aid in obtaining support. Interestingly, the more services for non-AFDC women the states did manage to offer, the more non-AFDC families began to petition the states for help. With the 1984 Child Support Enforcement Amendments’ passage into law, there was, undoubtedly, a historic sense of accomplishment. Women now had a better chance than ever before of recovering the support that they deserved for their families. And only four years later, with the Family Support Act of 1988, Congress provided women with more economic insurance by requiring the mandatory use of financial guidelines in assessing support awards. In addition, with women continuing to enter public office in greater numbers than ever before, the states also began to pass their own individual laws to help enforce support. Among the many new policies that were launched during this era, revoking drivers’ and professional licenses for the nonpayment of support became extremely common. Other states placed themselves on the cutting edge of reform by requiring employers to report all new hires immediately to their state employment agency, using their W-4 forms. Still other states passed versions of the Uniform Interstate Family Support Act (UIFSA), which promised enhanced interstate enforcement. Father’s Rights LawyersSince the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), fathers have become much more vocal about their disappointment with the current policy environment. In many ways, PRWORA represented the culmination of women leaders’ efforts to tighten child support provisions after the introduction of full services to non-AFDC mothers in 1984. PRWORA introduced a national directory of new hires to track down delinquents, required states to improve their interstate collection mechanisms, and mandated that all states have procedures in place to revoke driver’s and professional licenses when fathers fall behind in their payments. PRWORA even authorized states to deny food stamps to those fathers who fail to support their children. Although fathers’ rights groups are numerous and their goals varied, one constant theme has emerged throughout their short history: their central goal has been to modify child support awards, usually in a downward direction. Fathers’ rights groups maintain that the country’s monomaniacal zeal to catch and punish “deadbeat dads” has produced a child support enforcement system that is inherently inequitable and unjust to fathers. States are pursuing them to the fullest extent of the law, without regard to their capacity, willingness, or desire to pay. According to this perspective, this single-focused mission has forced many men into poverty, or into the underground economy. Fathers have been stalked, and the states have been doing the stalking. Not only have men been forced into financial ruin because of current child support policy, they also have been forced into emotional ruin. To fathers’ rights leaders, most fathers, then, are not “deadbeat dads” but simply men trying to survive economically. But the myth of the “deadbeat dad, ” some experts argue, has become so pervasive over the past two decades that all fathers have suffered under the weight of unnecessarily harsh child support laws. Fathers have come to recognize the importance of their spending time with their children, and have done everything in their power to “share parenting” with their former partners. Most fathers’ rights groups remain strong proponents of shared parenting arrangements. To these groups, shared parenting provides a variety of benefits to the children, including stronger familial ties, an enhanced emotional support system, and a consistent relationship with both parents. Shared parenting generally involves a child spending more than 20 percent but less than 50 percent of his or her time with the noncustodial parent (anything under the 20 percent threshold is the “ordinary visitation” that typically occurs in most sole custody cases). Fathers would also like to be financially compensated for this increased time spent with their children through reductions in their child support awards. Child support guidelines, however, have not kept up with these changes. According to fathers’ rights groups, child support guidelines continue to assume that the mothers are the primary caretakers of the children. This mindset holds even as fathers claim that they are not only increasingly spending more time with their children but also are becoming more emotionally invested as well. Fathers want their new roles to be taken seriously, and are demanding that the courts and the child support agencies compensate them for the increased time that they are allotting to their children, especially under shared parenting agreements. In June 1995, President Clinton initiated action by instructing all federal agencies, via a memorandum, to help strengthen the role of fathers in families. To support these diverse roles, DHHS policymakers laid out five beliefs that would thematically link their programs together in the upcoming years. These included the following: (1) all fathers can be important contributors to the well-being of their children; (2) parents are partners in raising their children, even when they do not live in the same household; (3) the roles fathers play in families are diverse and related to cultural and community norms; (4) men should receive the education and support necessary to prepare them for the responsibility of parenthood; and (5) the government can encourage and promote fathers’ involvement through its programs and through its own workforce policies. While many states have pursued their own projects for low-income fathers, the most important cross-state program has been the Parents’ Fair Share Demonstration (PFS), which used an experimental design for quality evaluation purposes. Implemented in 1992, PFS focused on low-income fathers in the following seven cities: Los Angeles, California; Jacksonville, Florida; Springfield, Massachusetts; Trenton, New Jersey; Dayton, Ohio; Grand Rapids, Michigan; and Memphis, Tennessee. The program offered nonpaying or delinquent noncustodial fathers several types of opportunities: enhanced contact with local child support enforcement personnel, peer-group meetings for similarly situated noncustodial fathers, and mediation services for fathers facing conflicts with custodial parents. The center piece of the program, however, was job training. Across a number of sites, noncustodial parents worked part-time while acquiring skills that would be useful in the ever-changing economy. Agency directors established contacts with local businesses to ensure that workers ultimately had a good chance at long-term, stable employment. Additionally, “job club” activities helped fathers to polish their résumés and to present themselves effectively in interviews. If you are a father who believes your exwife is using child support to destroy you economically or you are the mother who is seeking child support to look after the minor child, an experienced Lehi Utah divorce lawyer is your best friend. An experienced Lehi Utah divorce lawyer will ensure that you don’t have to pay the child support that you cannot afford as a father and as a mother, you receive a fair and just child support in the given circumstances. Alimony In DivorceThe word alimony is derived from the Latin term for nourishment or sustenance, alimentus. The concept of alimony, or the support of a wife who was living apart from her husband, stems from the provision made for wives who were successful in obtaining limited or bed-and-board divorces in the English ecclesiastical courts. Until the mid-19th century there was no form of absolute divorce for the general English population. Only the rich and powerful might obtain this form of marital termination through an Act of Parliament. This feudal arrangement, dictated under English Common Law, enabled the husband to gain control of his wife’s property. He controlled her income and rents and profits from real estate she owned. In return he was obligated to support her. Usually this obligation was carried out within the family home. However, if a bed-and-board divorce was obtained because the husband was guilty of cruelty or adultery, he could be required to pay alimony when the wife was authorized by the court to live separately from him. This protected the wife from falling into destitution because the husband legally remained in control of her property and earnings. Marriage is a wildly popular institution—so popular that failure of a first marriage usually does not deter spouses from marrying again. Approximately 75 percent of divorcing women remarry within ten years, 54 percent within five years. These second marriages are at least as likely to fail as first-time marriages. For some who marry a second time, marriage demands a hefty admission price not imposed on first-timers: any alimony claim against a former spouse will likely terminate. The intuition of most observers is that this is the right result—an ex-husband should not pay alimony to a former wife who is married to someone else. Indeed, the vast majority of states including Utah, either through case or statutory law, provide that a recipient’s remarriage automatically terminates alimony, or at least creates a prima facie case for termination. The remarriage-termination rule begins with the general principle that an alimony award, unlike a division of property, is modifiable. Often, judicial authority to modify alimony is specifically granted by statute. The Uniform Marriage and Divorce Act (UMDA), for example, allows modification “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Ordinarily, the changed circumstances that trigger modification involve economics—a reduction in the payor’s resources, for example, or an improvement in the recipient’s financial status—that warrant a decrease in alimony. When an alimony recipient remarries, however, a different rule applies: alimony is not merely modified, but terminated, usually with no possibility of revival, and without regard to the financial impact of the recipient’s new marriage. Remarriage alone is thus the termination trigger, typically without regard to any other factors usually relevant to modification. Whether it appears in statutory or case law, this notion that alimony should terminate upon a recipient’s remarriage is a baseline of contemporary American law. The rationale for alimony was once simple enough: upon marriage a husband undertook a lifetime obligation to support his wife. While he could obtain a legal separation, rarely could he fully sever marital ties. The husband’s duty of support thus continued throughout the wife’s life, and alimony was the tool for enforcing his obligation. An integral part of this vision was the system of coverture, under which a married woman’s identity merged into that of her husband. However a husband’s support obligation managed to survive divorce, that obligation is surely cut off when a new man takes on the task of supporting her. Upon remarriage, a new man becomes the ex-wife’s protector and provider, taking her under his wing and finally releasing the first husband from responsibility for her. This vision is neat enough: a husband has a lifetime obligation to keep his wife from need until the obligation is assumed by another. To take this reasoning a step further, allowing a woman to be the beneficiary of two husbandly duties of support would amount to polygamy, or at least to prostitution. The implication of such reasoning is that while a wife requires a husband’s support, the law does not much care which husband supports her. One husband is enough, and any husband will do. The remarriage-termination rule thus seems historically grounded in an unsettling view of husbands as necessary, if fungible, providers. Fault-Based Rationales: Damage Awards and the Ultimate Betrayal Fault may indeed explain alimony—at least in some states and in some cases. An adulterous spouse, for example, might be required to pay alimony as damages for breach of the marriage contract. Of course such a fault-based rationale would require only guilty spouses to pay alimony to innocent spouses; that is, no innocent spouse would ever pay alimony and no guilty spouse would ever receive alimony. Because such a limitation does not describe the law of alimony, fault can at best provide a partial rationale. An analogy to mitigation of damages is unhelpful. The mitigation principle ensures that a court “ordinarily will not compensate an injured party for loss that that party could have avoided by making efforts appropriate, in the eyes of the court, to the circumstances.” If applied to alimony termination, mitigation principles would suggest the peculiar conclusion that a wife should remarry in order to mitigate her losses and save her ex-husband money. Mitigation principles are also awkward because the timing is wrong. Opportunities to mitigate loss will ordinarily serve to decrease a damage calculation before it is reduced to judgment. In the case of divorce, however, a wife cannot avoid loss through remarriage at the time alimony is initially calculated, since she is not yet divorced. While it is true that alimony is modifiable and thus theoretically capable of repeated recalculation, mitigation principles would at most support a reduction in alimony commensurate with a wife’s improved financial status, yet the remarriage rule usually applies without regard to financial consequence and completely eliminates, rather than proportionately reduces, alimony. No-Fault Rationales: Handouts and Masked NeedCentral to the no-fault movement was a new vision of divorce as an opportunity for a fresh start and a clean break—a vision that leaves little room for alimony. As we have seen, general no-fault alimony statutes give courts discretion to award alimony on the basis of a spouse’s “need,” though “need” is not defined. Moreover, “need” alone provides no rationale for alimony, for it fails to explain why a former spouse should be responsible for a claimant’s need. Can a need-based alimony model explain the remarriage-termination rule? Not by a long shot. If need triggers an alimony handout, then termination of alimony should depend on the elimination of need (or a payor’s inability to meet need). Yet the remarriage-termination rule commonly applies without regard to need. Under the automatic-termination rule and, except in extraordinary cases, also under the prima facie rule, alimony terminates upon a recipient’s remarriage whether or not her financial position has improved. Even when an alimony recipient marries someone of sufficient earnings or assets to maintain or improve her standard of living, this economic improvement may be only temporary. Should her second marriage also end, an alimony recipient may be just as needy as she was prior to her remarriage, especially when the second marriage is short and she therefore can qualify for little or no new alimony. This is an especially serious concern for older women who remarry after a long-term first marriage. Advancing age is an irreversible impediment to a second long-term marriage and thus a counter-indicator of significant alimony the second time around. Moreover, the job or career opportunities available before a first marriage may not spontaneously reappear when a second marriage ends. The education, career, and personal life choices available at age twenty-five may simply not be available ten or twenty or thirty years later. The point is that while remarriage may mask need, it does not necessarily eliminate it. The election rationale does not depend on whether a second spouse is actually able to provide support, as one court acknowledged in terminating alimony upon a recipient’s remarriage to a man whose income consisted of social security and minimal retirement benefits. The low income of the wife’s new husband, said the court, “in no way diminishes the choice she voluntarily made to share her living expenses with him.” Closely tied to the election rationale is the proposition that upon remarriage the second husband substitutes for the first. As a Nebraska court explained in 1956, “the reason for the discontinuance of alimony allowance upon the recipient contracting another marriage is that, in that event, the legal obligation of the second husband supplants that of the first.” “Absent extraordinary circumstances,” said the Massachusetts Supreme Court in 1995, “the former spouse should not be required to pay alimony when another person has assumed the support obligation.” Alimony is complex. Nowhere is this complexity more evident than in the search for a conceptual basis for alimony in contemporary marriage. Numerous commentators have proposed theories of alimony that aim to answer a simple question: Why should anyone be forced to share income with a former spouse? If divorce severs the tie between spouses, if each spouse is entitled to a clean break and a fresh start as no-fault laws teach, what is the rationale for alimony? Contemporary commentators have long struggled to explain alimony in an age of easy divorce and equality rhetoric, but there is still no consensus on the answer to these questions. In extreme cases, the pragmatic justification for alimony is simple enough: alimony protects the state from the job of supporting a divorced spouse who without alimony would be thrust into poverty. In extreme cases, the pragmatic justification for alimony is simple enough: alimony protects the state from the job of supporting a divorced spouse who without alimony would be thrust into poverty. Indeed, state statutes typically identify a claimant’s need as an alimony trigger. But need alone does not explain why one’s ex-spouse rather than one’s children, siblings, parents, or community should be responsible for meeting need. Moreover, trial courts are given broad discretion to define “need,” and state self-interest does not explain cases in which need is defined in ways that have little to do with avoiding poverty. Nor can pragmatism alone answer the many questions surrounding an alimony award: How much? How long? On what grounds modification or termination? The law’s inability to articulate a justification for alimony is more than an abstract concern. The broad discretion vested in judges to determine alimony eligibility, duration, and value, in the absence of a theory to guide decision making, has produced an alimony regime marked by unpredictability, uncertainty, and confusion. If you are seeking alimony, speak to an experienced Lehi Utah divorce lawyer. The lawyer can assist you get the alimony that your rightly deserve. Divorce and PensionNo-fault divorce rested on a “clean-break” principle that influenced alimony and property distribution. Divorcing spouses were supposed to get on with their lives, as best they could. Yet, even during a short marriage, one spouse sometimes greatly enhances his earning power, while the other drastically reduces hers by staying home with the children. Earning power is often the most valuable asset of the marriage. If so, then it is unfair to confine the distribution to traditional property, and without taking future earnings into account. Hence, modern divorce law has begun to focus on “new property”—things that can’t be touched or held, but nonetheless have economic value: pensions, business goodwill, professional licenses, and professional degrees. An experienced Lehi Utah divorce lawyer can advise you on how you can protect your earnings in case of a divorce. Lehi Utah Divorce Lawyer Free ConsultationWhen you need legal help with a divorce in Lehi Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with alimony. Child Support. Child Custody. Modification of Divorce Decree. Property Division. Debt Division. And Much More. We want to help you.
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8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/divorce-lawyer-lehi-utah/ A loan modification is a complete re-structuring of your home mortgage. The lender who holds your home mortgage may agree to modify your home mortgage in one or more of the following ways: • If you are behind on mortgage payments, they may add mortgage arrears to the end of the loan, or capitalize arrears into the balance of the loan. • If your payments are too high, the Lender may decrease the amount of a monthly mortgage payment; • The lender may reduce your interest rate which may also lower the monthly mortgage payment; • Extend the term of a loan such as from 30 to 40 years to absorb the mortgage arrears and/or lower the mortgage payment. • If your home is worth less than you owe on your loan, the Lender may possibly reduce the principal balance of a mortgage. Although you can apply for a loan modification yourself you may need or want to retain the assistance of an attorney to help you. Utah Bankruptcy performed by Ascent Law LLC and its attorneys has assisted hundreds of individuals obtain loan modifications in all the ways discussed above (reduction in amount of mortgage payment and interest rate, adding arrears to end of loan, reducing principal balance, etc.). To succeed, it is important to present yourself and your financial picture in the most favorable and accurate light possible to increase the likelihood the Lender will approve your application for modification. It is also important to demonstrate that the loan modification benefits both you and the Lender. Utah Bankruptcy does affect your credit; but keep in mind that your attorney can assist you in knowing the consequences in preparing, organizing and evaluating documentation requested in applications for loan modifications. Ascent Law LLC has helped numerous individuals create the means of increasing income to their households to qualify for a loan modification. The Lenders are very demanding in their requirements that all requested documents are submitted with the application for loan modification. There are often multiple additional requests for documentation. Document Communications and Submissions To The Mortgage LenderThe follow up and documentation of the application process is crucial. It is important to keep detailed conversation logs and notate each time any documentation is submitted, and then verify it was received within 2-3 days after submission (time needs to be allowed to have documentation loaded into their system). It is also important to review the documentation to ensure the lender will see that you will be able to make the payment once the modification is complete, without making it appear you can make the current payment without modification. It is important to review any offers to ensure they meet your needs. Loan Owners Approve Or Deny Applications For Loan ModificationsLoan modifications are either approved or denied by the lender who owns your loan and its designated servicer. The lender’s designated servicer reviews the submitted paperwork and renders a decision based on the loan owners’ guidelines. To clarify, most mortgages today are owned by pension funds and investment groups, and serviced by banks and loan servicing companies. Many consumers falsely believe that major banks such as Wells Fargo and Bank of America own all the mortgage loans they service. The truth is that while they do own some of the loans, they act as a servicer for most loans. As a result, they are instructed by the owner of the note on what guidelines are to be used to determine whether a loan application is approved or denied. However, lenders have been pressured by the government to modify mortgages to assist homeowners, and in cases where the mortgage is owned by a government sponsored entity the lenders are directed to modify a mortgage payment equal to 32% of gross income, if reasonable. However, the government left the means to the Lender for determining income was left to the lender along with the definition of “if reasonable”, no timeline was given under which they had to review the modification documentation, and the 32% of gross income to mortgage payment was vague as they were not required to modify to the percentage, only asked to when reasonable. Appealing DenialsUtah Bankruptcy Professionals has helped many individuals save their homes and lower their mortgage payments by appealing Lenders’ denials of applications for loan modifications. Many Utah homeowners are struggling to remain in their homes. In some instances, unemployment or other financial issues make it difficult to make mortgage payments. In other cases, falling home values have homeowners questioning the wisdom of paying more money toward a bloated mortgage. But a mortgage modification may solve your housing worries. Talk to a loan modification attorney to learn whether you qualify. The Basics of Getting Your Home Loan ModifiedWhen a lender approves a loan modification, it’s typically doing one of several things: • Lowering the mortgage’s interest rate, particularly if the homeowner is locked into a high interest rate and ineligible to refinance the loan • Forgiving some of the loan’s principal balance, particularly if the home is “under water,” or worth less than the value of the loan • Extending the length of the loan • Waiving some of the penalties and late fees that have accrued, particularly if the homeowner is facing financial issues—such as unemployment, divorce or medical issues that make it difficult to make the full loan payments in a timely manner. Loan modification risksLoan modifications are changes made to an existing loan’s terms beyond the specifications of the original agreement. With mortgages, loan modifications are often used to help homeowners catch up on their obligations and avoid foreclosure. Examples include: • Reducing the interest rate • Reduce the amount of the principal • Extend the terms of the loan • Apply a cap to monthly payments • Home saver advances Here’s a typical example. You’re struggling to make your mortgage payments, so you’ve approached the lender to obtain a mortgage loan modification. The bank representative has suggested that you seem to qualify and are presently under review for a modification approval. Then one day you receive a Notice of Default and realize you are now in foreclosure. Whatever happened to the loan modification you were practically promised? For loan modifications, this can be problematic because lenders never actually sign these documents. They simply send out the paperwork and express willingness to honor the modification until they suddenly and unilaterally terminate it – which they can, because they never signed it. In the meantime, unwary consumers have come to rely on the modification and change their payment habits accordingly, only to be struck with an unexpected notice of default. There is no law that specifically states, “This person qualifies for a loan modification, and that person does not.” However, there are guidelines and certain criteria that most lenders look for when considering a borrower for modification. These are: • Valid economic hardship. A valid economic hardship is caused by unavoidable circumstances or events outside of the control of the borrower. There are many types of valid economic hardship. Ability to pay. Lenders want to see that the borrower has some source of regular income, although the amount of income may be less than what it was earlier. A borrower with a reduced income may qualify for a lower monthly payment. A borrower who has resumed earning income after a period of unemployment, during which the borrower fell behind on mortgage payments, may also qualify for lower monthly payments. • Fallen property value: little or no equity. An underwater mortgage (where the value of the home is less than what is owed on the mortgage) makes refinance impossible and can make foreclosure commercially senseless. None of these criteria are set in stone. They are merely the criteria generally considered by lenders. Ultimately, you are seeking a new deal–one in which the financial numbers make more sense for both parties. Short SaleIn a short sale, your lender agrees to stop the foreclosure while you list the property and attempt to sell it. When an offer comes in, you present it to the bank and offer the sales proceeds amount (though “short” of the full loan amount) in exchange for a release from the mortgage obligation, preferably without your owing the difference, known as the deficiency. There may also be tax implications after a short sale. If a short sale isn’t successful, you can offer the lender a deed in lieu of foreclosure by signing the property over to them in exchange for a release from the mortgage obligation. As with a short sale, you should have your lender release you from any obligation to pay the deficiency; get this release in writing as part of your deed in lieu of foreclosure agreement. There may also be tax implications from any release. A three-month short sale attempt is sometimes required by lenders before they will start negotiations on a deed in lieu of foreclosure. In a short sale and a deed in lieu of foreclosure, as well as a loan modification, you will have to deliver to your lender as part of your application a hardship letter (or affidavit) and other information for your lender to review. Home Affordable Modification Plan (HAMP)The Obama Administration introduced HAMP as part of the Making Home Affordable plan to stabilize the housing market. Under the federal loan modification plan, your monthly loan payments are reduced by modifying one or more components of your mortgage: • Lower the interest rate • Extend the life of the loan • Lower the loan principle • The Home Affordable Foreclosure Alternatives (HAFA) Program – Government assistance for a short sale or deed-in-lieu of foreclosure Other Loan Mod Programs• VA Loan – If your home mortgage is a Veterans Administration (VA) loan, then there is a specific government program called the Cal Vet Modification. • FHA Loan – There is a loan modification program specifically for Federal Housing Administration (FHA) loans • None of the Above – Banks who do not participate in the government programs may have their own unpublished loan modification programs with a different set of qualifications. How to apply for a loan modificationIf you are currently facing a financial hardship and want a loan modification, then know that time is of the essence. You have a greater ability to negotiate with your lender earlier on in the foreclosure process than later. Get started today: • Collect Your Financial Information • Collect Your Mortgage Information • If you’re ready to begin negotiating for a loan modification, get some free advice before contacting your lender. Talk to a nonprofit housing consultant from a HUD-approved agency and find out how likely you are to qualify for a loan modification based on your individual mortgage and financial situation. Nonprofit housing consultants from a HUD-approved agency can provide you with: • All available loan modification options • A customized action plan • Budget suggestions • Help in negotiating with your lender Government ProgramsDepending on the type of loan you have, it might be easier to qualify for a loan modification. Government programs like FHA loans, VA loans, and USDA loans offer relief, and some federal and state agencies can also help. Speak with your loan servicer or a HUD-approved counselor for details. The federal government offered the Home Affordable Modification Program (HAMP) beginning in 2009, but that expired on Dec. 31, 2016. The Home Affordable Refinance Program (HARP) expired two years later at the end of 2018. But HARP has been replaced by Freddie Mac’s Enhanced Relief Refinance Program and by Fannie Mae’s High Loan-to-Value Refinance Option, so these might be a good place to start for assistance. Why Lenders Modify LoansModification is an alternative to foreclosure or a short sale. It’s easier for homeowners and it tends to be less expensive for lenders than other legal options. You get to stay in your home, and your credit suffers less from modification than it would after a foreclosure. Otherwise, your lender has several unattractive options when and if you stop making mortgage payments and it must foreclose or approve a short sale. It can: • Attempt to collect the money you owe through wage garnishment, bank levies, or collection agencies • Write the loan off as a loss • Lose the ability to recover funds if you declare bankruptcy How to Get a Loan ModificationStart with a phone call or online inquiry, and let your lender know about your financial situation. Just be honest and explain why it’s hard for you to make your mortgage payments right now. Lenders will require an application and details about your finances to evaluate your request, and some require that you also be delinquent with your mortgage payments, usually by 60 days. Be prepared to provide certain information: • Income: How much you earn and where it comes from • Expenses: How much you spend each month, and how much goes toward different categories like housing, food, and transportation • Documents: Proof of your financial situation, including pay stubs, bank statements, tax returns, loan statements, and other important agreements How Long Does a Loan Modification Take?Sometimes a lender or servicer will offer you a “streamlined modification.” The servicer picks an amount they believe you can afford and that they will accept as a monthly payment, offer it to you and upon three successful payments, your loan is modified. If the lender or servicer does not offer a streamlined loan modification, the process will depend on the mortgage lender, the ability to work through the procedure with your lawyer and other factors. The loan modification process could take to 3-6 months. How Does a Loan Modification Affect Your Credit Score?Some lenders might report a loan modification as a debt settlement, and this may have an adverse impact on your credit. If your credit score is already low and you are already behind on your mortgage, the impact to your credit may be minimal. But, if you have a high credit score, a reported debt settlement on your credit report could significantly impact your credit score. To protect your credit, you should ask your lender how they plan to report the modification to credit bureaus. Once the loan modification is set, making timely payments will improve your credit since these payments will be reported to the credit bureaus. Eventually, your credit score will increase as each payment will build a solid credit history. Why Do I Need an Attorney for Loan Modification?Attempting to modify your mortgage is like a part-time job. The paperwork is exhaustive and not so easy to understand. Unlike applying for a mortgage, the servicer or lender will not assist you. An experienced lawyer can guide you through the loan modification process. There are also numerous situations where homeowners were led to believe that the bank was working with them on a loan modification and trying to help them avoid foreclosure, but the bank foreclosed on their property anyway. If your mortgage lender is pursuing foreclosure while also deciding on your loan modification application, or if they are in violation of federal and mortgage service rules, a lawyer can help you enforce your rights. If the lender denies your modification request, you will need more time and assistance to appeal. An attorney can show why the loan servicer made a mistake in dismissing the loan modification application and may be able to push for approval of your modification request. Loan Modification Attorney Free ConsultationWhen you need legal help with a loan modification in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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Probate Lawyer Salt Lake City Utah How Does A Legal Separation Work? via Michael Anderson https://www.ascentlawfirm.com/who-qualifies-for-a-loan-modification/ In a Utah family law court case, the time before trial is crucial. Everyone needs to understand their roles and what is going to happen in the courtroom. Consult an experienced Alpine Utah family lawyer. The attorney will explain the court process to you. Depending on the court, your case may be placed on the docket (calendar) anywhere from three months to one year in advance of the trial date. The judge’s docket will have a number of potential trials set for the same time in some priority order. Delays are common for a variety of reasons. Perhaps more witnesses need to be deposed, or settlement negotiations are close to resolution. Some judges are sympathetic to the need for continuances. Others hold tight to scheduled deadlines to keep their dockets moving. Either way, you must prepare for trial even before you know the exact trial date. Take time off from your busy schedule and discuss your case with your Alpine Utah family lawyer. Developing the Trial ThemeA plausible and convincing trial theme is an important factor in winning a case. The theme provides the jury with a framework to decide the case and gives your family law attorney the skeleton upon which to develop a strategy for winning. You can actively participate in the trial preparation process. One way to accomplish this is to develop a complete list of questions that you want to be asked on direct examination. Discuss the list with your Alpine Utah family lawyer. The lawyer will tell you the question he intends to ask you and the answers he expects. If you believe you won’t be in a position to answer any of them, let your attorney know so that he can prepare some other question. Request a mock cross-examination if it is not offered in advance. During the mock cross- examination, an experienced Alpine Utah family lawyers will attempt to push you to the boundaries of your comfort zone. Establish your boundaries and do not cross them. This exercise will instill confidence in you and ensure that you are prepared. Changing Your DepositionAfter the deposition, you and your Alpine Utah family lawyer review what went well at the deposition and what did not. The sooner after the deposition, the better, so that the details are still fresh in everyone’s mind. This review may very well result in the need for further investigation or analysis. It may also result in new information or data to be considered. Write it down. Develop a checklist for the actions that need to be accomplished before the trial date. MotionsFollowing the pleadings and the discovery phase of the case, the lawyers representing each side in the litigation may file a variety of motions either to avoid trial or to narrow the scope of issues to be tried. Some motions seek the exclusion of evidence or testimony, including an expert’s opinion (the Daubert motion). Others, such as a motion for summary judgment, ask the court to dismiss the case on legal grounds when the material facts are not in dispute. The use of motions can be an efficient and cost-effective way to determine the relative strength of the opposing positions. Understanding the JudgeKnow and understand the judge. Especially in light of Daubert and related cases, the judge is responsible for determining the reliability and the relevance of expert testimony and other evidence. In executing this charge, the judge will determine just how broad-or narrow-testimony can be. Judges have two different approaches in this regard. Some will allow everything, whether or not it is directly material, on the theory that this will be fair to both sides and in the hope that the jury will determine the relevance. Others will restrict what is admissible and will narrow the focus in order to expedite the trial. Both approaches can be effective, but it is important to understand which will be employed and to tailor testimony accordingly. It is also helpful to think of the judge as part of the jury. If effective and convincing, your testimony will have an impact on the judge. At times, the judge may ask questions, and at the end of the trial it is the judge who delivers the jury instructions, based on the evidence and opinions presented at trial. The jury will then decide the case based on those instructions. A judge who understands the case may be more effective in transmitting clear instructions, which typically leads to a more just outcome. Opening StatementsThe trial begins with the presentation of the opening statement. Attorneys for the plaintiff in a family law dispute usually are the first tell the jury what they believe the evidence will prove. The defendant’s attorney will then make an opening statement; however, in some cases, the defense attorney has the option of delaying this opening statement until after the plaintiffs have completed presenting their case. The opening statements reveal to the judge and jury the opposing story lines. In the opening statement, the lawyer outlines for the jury the issues involved in the case and the evidence to be presented that will firmly establish the validity of the claim or the defense. It is also an opportune time to introduce and explain in general terms any expert testimony to be used in the case. The lawyer should explain to the jury the evidence to be presented, show how it will be presented, provide a brief overview of the qualifications of the expert(s) who will be testifying, and describe in broad terms the basis for the expert opinions. Exhibits can be used to better illustrate points made during the opening statement and can be far more effective and convincing than oratory alone. The opening statement also provides an opportunity to address any potential weaknesses in expert testimony to be offered. By introducing such weaknesses during the opening statement, the lawyer has an opportunity to preempt the opposing side’s argument concerning that testimony, while building credibility with the jury. Opening statements are not considered to be evidence and are, in theory, intended simply to acquaint the jurors with the nature of the case. In reality, however, the importance of the opening statement cannot be overstated. The opening statement is the first opportunity for the lawyers representing the opposing sides to explain the basis for their cases and to establish the theme for the trial. The opening statement sets the tone for the trial. Fortunately or not, this first impression often profoundly influences the final verdict. Direct ExaminationDirect examination is the heart of the case. It consists of questions posted to a lay or expert witness to elicit facts that corroborate a party’s theory of the case. Direct examination is also the best opportunity to present the facts and reinforce the theme that will convince the jury and win the case. Unlike in depositions, where witnesses are advised to be brief and responsive, at trial witnesses have the opportunity to expand their answers. The goal of direct examination is to educate the judge and jury; therefore, it is imperative that direct testimony be understandable, interesting, and persuasive. Effective direct examination must tell the entire story in a logical, cogent, and memorable way. Good direct examination should boil down all of the information and research to the essential elements, including any expert opinions. Direct testimony should not only hit the high points and refute any weak points of the case. It should also identify any weaknesses so that on cross-examination the jury has already heard the issue and is impressed by the candor of the witness in revealing facts that may be brought up by the other side. It is important to remember that jurors may have relatively limited attention spans. The members of the jury will be making a great effort to listen to, understand, and remember the testimony in the case but can become fatigued by information overload. Visual exhibits should be used whenever possible to illustrate key points, and common phrases and terms should be used repeatedly throughout the trial to emphasize the important points and images you wish to convey to the jury. It is wise, therefore, to limit direct expert testimony to hours, not days. Such a time limit requires discipline, organization, practice, and a great deal of preparation on the part of both the expert and the attorney. On the day you are scheduled to testify, you should be at the court well in advance of the time you are scheduled to be on the witness stand. It is important to understand that the scheduled time to testify may, and more often than not will, change. Judges often change timetables without prior notice. You should be prepared to wait until it is time to testify. Never argue with the opposing attorney. You only lose as your credibility suffers with the jury. Also, never let the attorney coax you into a personal attack on the other side. Choose your words carefully. There is a tremendous difference in perception between the words “possible” “probable” and “plausible.” Choose among these words carefully, and be sure that you express your meaning for each so that the jury understands exactly what you mean when you use them. Well-organized answers are easier to follow and more likely to be understood and believed. Listen carefully to the question. When answering, speak in an organized fashion, using words and images to which the jury easily relates. You need to leave the jurors with a logical story they will never forget. It needs to be a consistent picture that is intellectually and emotionally anchored. The jurors must feel and see, as well as understand, your contentions. Simplify your testimony to, at the most, two or three main points. You must decide on one overall story or picture, with several supporting snapshots-more than that and the jury will become confused as to what your main points were. To anchor your testimony in the emotions of the jurors, you must express some emotion in your testimony. You are not just a mechanical robot programmed to say what was noted in the prepared scripts. You feel more strongly about certain things than others. Those feelings need to surface and be shown. This does not mean emotional outburst, such as anger or tears. It does mean appropriate voice inflection, bearing, and facial expression. Make your main points with strength of conviction; use hand gestures to communicate sincerity and belief. There is nothing fake about showing emotion to buttress your main points. It alerts the jury that something important is being said and they had better pay attention. Alpine Utah Family Law Attorney Free ConsultationWhen you need legal help with family law in Alpine Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Custody. Child Support. Alimony. Prenups. Postnups. Guardianships. Conservatorships. Changes of Custody. Modifications of Decrees. And Much More. We want to help you.
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About MeHave a strong interest in donating wieners for farmers. Have some experience investing in cod in Bethesda, MD. Spent the better part of the 90's deploying Roombas in the aftermarket. Spent a weekend creating marketing channels for jungle gyms for no pay. Spent 2002-2009 building robots in the aftermarket. Spent 2001-2005 supervising the production of salsa in Libya. Archives
April 2023
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