Archive for October, 2010

Real Estate Contract Law Basics for the Homebuyer

Wednesday, October 27th, 2010

Many people who purchase real estate have little understanding of the way the law effects your purchase, yet it is important to learn because your purchase is a legal transaction.

In California, according to the Statute of Frauds all contracts for the sale of real property must be in writing to be legally enforceable. When you sign your name to a contract it is assumed that you have read and understood the language therein, and you are bound by that language. While there are exceptions to the Statute unfortunately naivety is not one of them; the point is to read and understand the entire contract.

Unlike other states where an attorney represents buyers and sellers in real estate transactions, we have to be more vigilant here. If you do not understand something you need to consult with your Realtor. If he or she cannot explain it to you then they need to involve their broker or speak with your attorney. But the bottom line is that you need to understand what you are signing.

What can make a real estate contract voidable (able to be canceled by either party), void (rendered nonexistent) or unenforceable (allowing for a legal remedy)? Without going into elaborate detail here are the exceptions that may enable the contract to fall under one of these categories:. 1. Age/minor–you must be over the age of 18 or have a legal guardian who can sign in your capacity. 2. Insanity–if it can be proven that the signer was not of sound mind when s/he signed the contract. 3. Misrepresentation–if a party can prove that they signed the contract as a result of the misrepresentation of the other party. There are two types of misrepresentation so you need to speak with your attorney to apply specific facts and to see what types of remedies may be available. 4. Fraud. If you entered into a contract because of fraud on behalf of the other party the contract could be void or voidable, with legal remedies available.

Fraud has become a buzz word lately due to the numerous lawsuits filed by homeowners against lenders in foreclosure cases. If you are purchasing a lender-owned property please consult with your Realtor and make certain that the lender acquired the home legally. Title companies are stepping up to make it more difficult to get these properties insured, so that will make it easier on the buyers because clean title cannot pass if the lender acquired title to the property in a fraudulent manner. Keep in mind that it also may make title insurance policies a lot more expensive with regard to these types of properties.

The bottom line is to make sure you understand the contract you are signing, and make sure to have your Realtor do some extra investigating in cases of lender-owned properties.

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Understanding the Foreclosure Halt

Friday, October 22nd, 2010

In response to numerous questions I have received lately regarding the foreclosure moratorium I thought it would be helpful to explain what exactly is going on, what it means and how it may or may not help you, the homeowner , seller or buyer.

This whole business of lenders temporarily halting foreclosures started when homeowners in judicial foreclosure states started filing lawsuits against their lenders claiming illegal foreclosed. Let’s backtrack a moment and review the two types of classifications under which states fall when it comes to foreclosures.

Judicial Foreclosure: States that fall under this category require a lender to file a judgment against a homeowner in order to start the foreclosure process. 23 states fall into this category. The straw that broke the camel’s back and led to a mass moratorium started when homeowners in these states hired attorneys who filed lawsuits against the lenders. These lawsuits claimed the lenders failed to prove they in fact held title to the property in question. Also called “produce the note” filings, this tactic actually stalls many foreclosures, and even has caused a few to fail. The problem is that when loans are bought and sold numerous times it is common for the actual note to be lost or not in the lender’s file. The bigger problem concerned fraud, when lender employees allegedly filed paperwork whereby the swore to the accuracy of the documents filed, when in fact they may not have even read through them.

Non-Judicial Foreclosure: In these 27 states (which include California, Arizona and Nevada–some of the biggest foreclosed property states) a lender is not required to file suit before initiating foreclosure proceedings. Lenders must stick by guidelines as to giving notice to the homeowner, allowing for periods to pay back the delinquent amount and providing sufficient notice to evacuate the premises, and following guidelines relating to publishing and notifying the owners; a judge does not have to review anything prior to the lender filing a notice of default but there are incidences where lenders may not have followed through with correct procedures.

The current problems in the system were flawed, obviously in judicial states but also in non-judicial states, because of the sheer number of foreclosures and delinquent borrowers. Once the lenders in the judicial states started being challenged as to their procedures they had to look at procedures across the board, which includes all states, since many do business in multiple states. As in any potentially litigious situation, the lenders needed to cover their behinds by reviewing policy and making sure there is uniformity in handling these cases.

What does all this mean to me, you ask? If you are a homeowner who is delinquent it means that you may have a bit more time before proceedings are initiated. It does not mean that you will not have to face foreclosure, but the extra time you may have should be used to make alternative plans and seek other means of relief (like loan modifications or short sales).

If you are a home buyer you need to be very careful of foreclosure properties until this is all sorted out. If you are in the process of purchasing a foreclosure (bank-owned) property, talk to your Realtor and make sure the foreclosure was well-documented. You may have to wait longer than anticipated to close escrow if the lender-owner has initiated a foreclosure halt. If you are thinking of purchasing a lender-owned property make sure you and your agent are fully aware of the situation upon writing an offer, and be prepared for the possibility of delays in response time and escrow, should your offer be accepted.

You may have heard some horror stories of homeowners who have purchased and moved into lender-owned homes, only to find out that the previous homeowners are suing the lender, claiming unlawful foreclosure. What will happen in these cases is to be determined, so just be careful.

If you are selling your home in a short sale to prevent a foreclosure it is imperative to work closely with your Realtor to assure you follow all proper procedures. Also be aware that how the halt will effect you depends on the area in which you live. San Diego, for example, likely will not be hit too hard since (a) California is a non-judicial state and (b) there are not as many foreclosures in San Diego as in other cities.

I don’t think this foreclosure moratorium will last very long; in fact, some lenders are starting a lift on the halt as early as next week. The bottom line is to be aware of the situation and rely on your Realtor and/or attorney to guide you through the foreclosure process. One thing is for certain: the housing crisis is not over in this country and likely won’t be for some time.

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Free Distressed Homeowner Workshop Thursday

Tuesday, October 19th, 2010

If you are underwater with your mortgage or are facing circumstances that may effect your ability to pay in the future, there is a workshop this Thursday that is just for you. This free workshop will be held at the San Diego Convention Center from 1 p.m to 7:30 p.m. There will be numerous lenders and loan servicers present, as well as HUD counsellors.

This program will allow you to register and meet in person with a servicer from your loan provider, ask questions and discuss available options for your situation. The program is sponsored by the Obama administration’s Making Home Affordable Program, the HopeNow Alliance and Neighborhood Works America.

I encourage you to go if you are in a difficult situation, as this offers you a direct line of communication with your lender and counsellors, instead of spending hours on the phone trying to work something out. Make sure to bring your financial records and proof of hardship along with you.

For more information visit MakingHomeAffordable.gov, HopeNow.com or nw.org.

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Welcome LaMar Real Estate!

Monday, October 18th, 2010

Dear Clients, Colleagues and Friends,
I am thrilled to announce that I have decided to form my own company, LaMar Real Estate. While leaving Windermere was a difficult decision, I will always value the positive attitudes, support and friendly faces that made up a wonderful family. Over the years in this business I have realized that it is not the company that makes the agent; rather, it is the service, dedication and integrity that do so. As my mantra states “it’s all in the details…” There comes a time when an agent must spread her wings. For me, that time is now.

I thank Windermere for teaching me the “Windermere way,” and for the support I obtained while there. There are a few people I could always count on and for them I am grateful. This is an exciting time for me and is also a huge benefit to my clients. With my creative marketing and website team behind me the sky is the limit!

I am currently working with my web designers on a new website that will really capture the feel of what I have to offer my clients. I am looking forward to debuting this site and invite you to check back in time and see it. Your comments are welcome and appreciated.

Lastly, I want to say thank you to all of those who have supported me throughout my career in real estate. My clients are incredible and without them and their encouragement I would not be the person I am today. This is the beginning of a new chapter for me and one into which I am happy to leap. LaMar Real Estate was created for my clients and will allow me to provide the same dedicated service with incredible advantages. I invite you along on the journey with me! If you would like more information about how I and LaMar Real Estate can be beneficial to you as a buyer or seller please feel free to contact me.

Regards,

Rachel

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How Safe Are Our Schools?

Monday, October 11th, 2010

In case you don’t listen to local news, or if you don’t live in the San Diego County area, there was a shooting this past Friday at a Carlsbad elementary school. An obviously deranged man decided to go to the school, jump the fence to the playground, and shoot at children. Luckily some construction workers chased him down before any lives were lost. This school is only a few miles from my home and in our district, so it really made parents open their eyes to school safety. I was interviewed on this issue today by San Diego’s 10News, which will air tonight at 6 p.m.

What can be done about school safety? If you visit any school campus, at least the schools in my district, security is virtually non-existent. Sure, some schools have fences and/or cameras. But the fact is that anyone can get past those, easily. I have walked into both my childrens’ schools on numerous occasions without stopping in the office.

The issue is this: how do we protect our childrens’ safety during school hours without turning schools into a police state? Can it even be done? After the terrorist attacks on 9/11/2001 a lot of changes were made in airport security, but even that has tapered off over the years. Furthermore, others have proved that they can still get past TSA security with bombs and weapons despite the heightened surveillance. So will installing a metal detector and barbed wire, or placing armed guards on campus, really stop these psychos bent on hurting our kids? Sadly, the answer is no.

I think what we need to learn from this and other tragic events on school campuses is the following:

* Everyone on school campuses needs to be trained to report strange behavior or the presence of strangers, even if that behavior comes from another child. In some cases potential tragedy might be avoided if students can articulate any abnormal behavior or statements made by other students, as these may be cries for help. As for strangers, in some cases (like with the incident on Friday) this is a non-issue, as obviously this man came out of nowhere and there was not time to alert anyone until he started shooting.

* We need to talk about this incident and others with our children. Even though it is scary it needs to be discussed. Our children need to know what to do should anything remotely similar ever happen on their school campuses or elsewhere. Our family discussed this over the weekend. I told my children exactly what to do even if they were not close to a building. Hopefully in a panic they would be able to remember what we discussed, since I gave them a plan of action. Knowledge is power.

* The community at large needs to discuss these issues. Unfortunately there is insufficient financial means to secure schools (and again, whether this is even possible is highly questionable), as the state continues to annually chop up our school budgets (a topic for another blog, one that could be very long). I know that a lot of the “extras” at my daughter’s elementary school come from parental involvement–fund raisers and donations. We need to have forums to discuss school security issues, much like to meet to plan fundraisers to update the computer labs. Maybe PTAs could get involved in this.

* Despite the desire some parents may have to pull kids out of schools and start a home-schooling program after incidents like this (I’ll admit that my husband and I discussed this over the weekend), we need to remember that, like after 9/11, we can’t let the actions of a few create fear and force us to change the way we live. The fact of the matter is that my kids go to good schools, with (mostly) great teachers. They have access to state-of-the-art technology and modern classrooms. The public school system can provide an excellent education. So we need to forge ahead and perservere.

I welcome any comments or suggestions to this blog. It is important to share viewpoints and ideas to make our communities stronger.

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Bank of America HALTS Foreclosures Across Country

Friday, October 8th, 2010

In a move that came as a surprise to many, Bank of American announced today that it was halting foreclosures nationwide, while it investigates its policies.

Within the last few weeks B of A and other lending institutions had made public that they were thinking of investigating foreclosure protocol in states that are judicial foreclosure states. This means a state that requires the lender go through the judicial system in order to obtain foreclosures. Recently many disgruntled homeowners had been seeking advice of attorneys and had been going after lenders, requiring them to “produce the note” proving that the lender was in fact the property owner. Most times the note was produced but the tactic helped stall the foreclosure process. In rare cases the lenders were unable to produce the note.

Lenders sometimes do not hold the actual note, as loans may have been sold numerous times over the life of the loan, oftentimes creating situations where the current lender may not have the actual piece of paper proving ownership.

The announcement today was surprising, as B of A is now halting foreclosures in non-judicial states, like California. Earlier this month the lending giant announced that it was imposing a moratoria in 23 judicial foreclosure states, to which other lenders followed suit. Officials with the lender claim they want to make sure they are following proper procedures in all foreclosure cases.

Bank of America will still proceed with the foreclosure process on delinquent borrowers, but will not issue foreclosure judgments and sales scheduled for Saturday and beyond. Those troubled homeowners will likely not escape the foreclosure process due to this halt, but will gain more time to hopefully find ways to solve their delinquency problems.

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Carlsbad Parks Update

Sunday, October 3rd, 2010

There is great news to share on the new Alga Norte Community Park in Carlsbad, which has been in limbo for some time. The City Council voted last week to move ahead with construction on this exciting new city addition, located on Poinsettia Lane and Alicante Road.

The new park will house an aquatic complex, a skate park, play and picnic areas, baseball fields, 3 basketball courts and a dog park (yay!). The aquatic complex will contain a 12-lane instruction pool, a competitive pool, tot wet play area and a therapy pool. A moving river and water slides will be constructed in a later phase.

Preparation for the bidding process and design review is expected to take about two months. Financial issues also need to be finalized. Thereafter the city will put the project out for bidding. Estimated completion is to be 2-3 years from the start of construction. Although it seems a far off, I have a feeling this new park will be a welcome addition to our wonderful city.

To learn more about the park as progress continues, and to see a plan drawing, you can visit the city website at http://www.carlsbadca.gov/Pages/default.aspx.

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Mortgage Help for Military Families

Friday, October 1st, 2010

Military families in need of assistance with making mortgage payments just got a boost from the government. Fannie Mae recently announced it will reduce or suspend monthly mortgage payments for up to six months for families whose struggles are related to the death or injury of a service member.

Fannie Mae also will refrain from reporting the payment reductions/suspensions to credit bureaus for up to six months, minimizing credit score drops for military borrowers.

To see if your family is eligible contact your mortgage lender or call 1-877-MIL-4566.

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