Defending Foreclosures In Oklahoma

February 22nd, 2010

I have received many asset protection inquiries in the past year from people concerned about a mortgage foreclosure on one or more of their properties. Most people who contact me are interested in asset protection from deficiency judgments because Oklahoma is a deficiency state. One of the issues I discuss with my clients facing a foreclosure and a potential deficiency claim is whether the homeowner should defend the foreclosure even though the homeowner is  unable, or unwilling, to continue making mortgage payments. There are advantages and disadvantages to foreclosure defense, and the decision to defend or default depends on the individual debtor’s situation and his assets.

In order to stay up on developments in the law of foreclosure defense, I recently attended a legal seminar called “Defending Foreclosures in Oklahoma” which was jointly sponsored by the Oklahoma Bar Association and Legal Aid Services of Oklahoma. The featured speaker was Florida legal aid attorney April Charney.  Attorneys that practice in the real estate area know that April is at the forefront of the battle against foreclosures.  She is a nationally recognized expert that helps Florida homeowners in particular, and like-minded attorneys in general.  As a condition of attending the seminar, I agreed to donate at least twenty hours of related legal work to Legal Aid Services of Oklahoma.

I left April’s seminar better equipped to advise and help Eastern Oklahoma area homeowners present legal defenses to foreclosure actions even where the loan is in default.  Points to consider:

While you are litigating the foreclosure case, you are not required to make your normal monthly mortgage payments.  The legal process will afford you time to reinstate the mortgage, sell your home, file a bankruptcy or move out.  You may be able to force the lender to completely rewrite the terms of your note and mortgage, enabling you to keep your home.

This may sound too good to be true, but you may actually have valuable defenses and counterclaims against your mortgage company that could actually prevent foreclosure and even require your lender to pay you damages.  Across the country, judges are punishing mortgage companies for incomplete record keeping and for violations of the Truth In Lending Act.  You may be able to allege valid defenses including fraud and Truth In Lending Act violations.

Are you aware that your mortgage company is probably not the same company that actually loaned you the money to buy or refinance your home?  How do you know if the mortgage company suing you has been properly assigned your note and mortgage?  Your mortgage company may have failed to properly assign the note and mortgage before initiating the foreclosure.  Does your foreclosure complaint even have copies of the note, mortgage and purported assignment attached?

Most likely, these documents are not attached, especially the assignments, and may not even be in the possession of your mortgage company.  Your mortgage company may be attempting to substitute your original note and/or mortgage with a purported copy.  This is called a “Count to Establish Lost Documents.”  There are strict legal requirements to establish a lost note or mortgage, and your mortgage company may be unable to meet the requirements if challenged.

If your current mortgage company is not your original lender, it probably has never read your mortgage.  Your mortgage may require that the plaintiff accelerate (i.e. demand) the entire balance of the note.  Your mortgage company may have failed to do that, which may entitle you the opportunity to cure the mortgage by paying the reinstatement amount.  It is also common for mortgage companies to inflate the balance due on the mortgage by charging homeowners junk fees, such as Broker Price Opinions (BPO), property inspections and other “property preservation expenses.”

So, essentially, your mortgage company may have filed an improper foreclosure lawsuit, but your time is limited.  You have or will be served a copy of the foreclosure complaint by a process server.  You typically have only 20 days to respond to the mortgage company’s complaint, so you need to see an attorney immediately if you wish to defend against the foreclosure.  If you are beyond the twenty days, there are still defenses that can be raised.  It may even be possible to vacate a foreclosure judgment and sheriff’s sale.

If you are wondering why you have not heard more about foreclosure defense, consider April Charney’s words: “Lawyers don’t go to law school to fight foreclosures. It’s a special skill set. Even most judges aren’t familiar enough with this because so few homeowners go into court.”

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I’m out of the office the rest of this week to volunteer with Extreme Makeover Home Edition!

January 28th, 2010

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On or About the Night Immediately Preceding Christmas

December 22nd, 2009

MerryChristmasSceneWHEREAS, on or about the night immediately preceding Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to, a mouse.

A variety of foot apparel, e.g., stockings, socks, etc., had been affixed by and/or around the fireplace mantle in said house, in a diligent and workmanlike manner, in the hope, and/or belief, that St. Nick a/k/a/ St. Nicholas d/b/a/ Santa Claus (hereinafter “Claus”) would arrive forthwith. The minor residents, i.e., children, of the aforementioned House were situated on or about their individual beds and were engaged in sleep-induced hallucinations, i.e., dreams, wherein visions of confectionary treats including, but not limited to, candies, nuts, and/or sugar plums, did dance, cavort, frolic, and otherwise appear in said dreams.

Whereupon I (hereinafter “the party of the first part”), being the joint-owner in fee simple of the House with Mamma (hereinafter “the party of the second part”), and the party of the second part had retired for a sustained period of sleep and/or rest. At such time, both parties were clad in various forms of sleepwear and headgear, e.g., night gowns, kerchiefs and/or caps.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain aural disruption of unknown origin, nature, cause or circumstance, that did interfere with the parties’ quiet enjoyment of said property, so much so that the party of the first part did precipitously proceed to a nearby window of said House to investigate the cause of said disruption and disturbance.

At that time, the party of the first part did observe, with some degree of confusion, wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled, propelled and/or drawn by approximately eight (8) diminutive reindeer. The driver of the Vehicle appeared to be, and in fact was, the previously referenced Claus.

Said Claus did then provide specific direction, instruction and/or guidance to the approximately eight (8) reindeer and, thus, expressly identified the antlered co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen (“hereinafter “the Deer”). Upon information subsequently received, it is believed and, therefore, further averred that an additional co-conspirator named “Rudolph” may have been involved.

The party of the first part witnessed Claus and the Deer as they intentionally, willfully, and with reckless disregard for the safety of the occupants of the House and other neighborhood dwellings, did trespass upon the roofs of several dwellings located adjacent to and in the vicinity of the House, and it was noted that the Vehicle was heavily laden with merchandise, packages, toys, and other items of unknown origin or nature. Suddenly, and without invitation, permission or license, either express or implied, the Vehicle arrived at the House, and Claus did break, enter, and defiantly trespass upon said House via ingress through and down the chimney.

Said Claus was clad in a red, fur-trimmed suit, which was partially discolorured by charred residue from the interior of the chimney, and he carried a large sack with which he conveyed, transported or, otherwise, asported or carried a portion of the aforementioned merchandise, packages, toys, and other unknown items. He lit and began smoking what appeared to be tobacco, or some unknown substance, in a small pipe in blatant, open and notorious violation of local ordinances and public health regulations and, possibly, The Controlled Substance, Drug, Device and Cosmetic Act.

Claus did not speak, but immediately began to fill the afore-mentioned pre-hung stockings of the minor children with toys, and other small objects, however, said items may or may not constitute “gifts” as that term is defined in the applicable provisions of the U.S. Tax Code.

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts” to further aid and abet the alleged nefarious enterprise. Claus then immediately fled and/or departed for an unknown destination, apparently to avoid apprehension. However, prior to said departure of the Vehicle, Deer, and Claus from the House, the party of the first part did hear Claus state, exclaim and/or spontaneously utter: “Merry Christmas to All, and to All a Good Night!”, or words to that effect.

Thanks to Ralph Ostermueller of fvginternational.com for this legalese.

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Successful Defense of Residential Tenant

October 22nd, 2009

At the end of a landlord/tenant relationship disputes can easily lead to litigation.  This week I was pleased to successfully defend a Tulsa couple that were sued by their landlord for rent and late fees far in excess of what was actually owed by the tenants.  It was a Small Claims case, so the most the couple could lose was $6,000.00, but this was over twice what the couple really owed!

Fortunately, the judge saw the facts in a light favorable to my clients, and the judgment ($2,975.00) was for the amount that my clients had already agreed was owed.  Even better, this amount was almost completely covered by their security deposit.  It is great to have satisfied clients, even if the case is not that big.  I know that it was a big case from my clients’ perspective.

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Legal Rebels – Manifesto

August 26th, 2009

I am a proud member of America’s essential profession. Without lawyers and the rule of law, a free, fair and open society is not sustainable.

I recognize that the legal profession’s traditions – the world’s most respected legal education system, most successful law firms and fairest court system – were once radical innovations.

In this time of economic crisis, I am committed to improving those institutions and creating innovation in the practice of law.  I will question and, when appropriate, change the status quo.  And I will use technology to serve my clients and society.

I’ll help remake the profession I hold dear so it can continue to deliver on America’s promise.

I’m an innovator.  A maverick.  A pathfinder.

I am a Legal Rebel.

via Legal Rebels – Manifesto.

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Do Homeowners Really Need To Buy An Owner’s Policy Of Title Insurance?

August 15th, 2009

Title insurance is an absolute necessity in every real estate conveyance transaction. The problem is that most home buyers don’t know what title insurance is or what it covers, and only see it for the first time on the closing settlement statement.

So, what Is Title Insurance?

Title insurance is a policy of insurance protecting homeowners and lenders from loss in the event that certain covered problems develop regarding the rights to ownership of the

policy

real estate purchased. While title examiners will search and certify the title to real estate before closing, there can be hidden title defects that even a careful title search will not reveal.  In addition to protection from financial loss, title insurance pays the cost of defending against any covered claim.

There are two types of title insurance, lender’s and owner’s policies. If you have a mortage, a lender’s policy is required and will be a part of your closing costs. However, owner’s policies are optional and cost extra. The lender’s insurance protects the lender up to the amount of the mortgage, but it doesn’t protect your equity in the property. For that you need an owner’s title policy for the full value of the home.

What Does An Owner’s Policy Of Title Insurance Cover?

Owner’s Title Insurance will cover the cost to remove clouds on your title from such things as un-discharged mortgages, and the claims of unknown or missing heirs. An owner’s policy also covers these types of title defects: forged deeds or impersonations, incorrect legal or boundary descriptions, and recording errors. There is also extended coverage available for: building permit violations, adverse possession or prescriptive easements, building encroachments, incorrect surveys, pre-existing violations of subdivision, zoning laws, and restrictive covenants.

Is Title Insurance Worth The Cost?

Title insurance is based on the purchase price of your home.  The additional cost above the cost of the lender’s policy is relatively small. Typicaly, the premium is several hundred dollars. Title insurance is a good deal because it continues to provide coverage for as long as you or your heirs own the property. Passing up on an owner’s policy of title insurance because the risk of a title defect is minimal is a bad idea.  If you don’t believe me, consider this real title defect horror story.

house_v1

Imagine building your dream home, then finding out after closing that your builder built the house on the wrong lot!  Worse, the house is on a lot that the builder does not own, so he can’t simply swap lots with you.  This happened to a new client of mine from Tulsa.  A builder bought a lot from a developer of a sub-division, but mistakenly built a house on an adjacent lot. The builder then compounded his error by selling the house on the lot he did not own to my client, all the while representing that the house was on the lot the builder did own. My client moved in, but later discovered that her house is not on the lot to which she received title.  Instead, the house is on the adjacent lot that is still owned by the developer.  Now I have the job of trying to solve this problem.

To complicate matters, Oklahoma law (60 O.S. §334) provides: “When a person affixes his property to the land of another without an agreement permitting him to remove it, the thing affixed belongs to the owner of the land….”  Oklahoma case law is in accord. See, Mid-State Homes, Inc. v. Martin. It follows then that the developer may not be interested in simply trading his significantly improved lot for the vacant one he originally sold to the builder.  The title insurance company may well have to provide the funds to buy the improved lot from the developer, and thereby protect the interests of its insured.  If so, the title insurance policy would be well worth the cost.

At this point, my client does not have title to the house she paid for, and her lender’s home mortgage is only secured by the adjacent vacant lot. This kind of mess is the sort of fact pattern found on law school and state bar exams.  It is an interesting case for me, and I expect that I will have to sue the builder to recind the sale, and file a lis pendens against the developer’s improved lot.  Sometimes litigation is the best way to get all the interested parties to the table to obtain a just resolution of the matter.

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Happy fourth of July!

July 1st, 2009

Huddleston Law Offices remembers all those who fought for our independence.  Have fun with your families and, if you’re not in the USA, back to work!

NEWS from U.S. Consumer Product Safety Commission

Office of Information and Public Affairs Washington, DC 20207

FOR IMMEDIATE RELEASE

Release # 09-258

CPSC Announces Drop in Fireworks-Related Injuries; Consumers Still Urged To Celebrate Safe This July 4th CPSC Introduces the New Face of Safety – Chairman Inez Tenenbaum

WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission’s new Chairman, Inez Tenenbaum, urged families today to put safety first during the Fourth of July holiday and celebrate with caution when it comes to fireworks. The latest report (PDF) from CPSC indicates that there were reports of seven fireworks-related deaths and an estimated 7,000 hospital emergency room treated injuries in 2008. In 2007, CPSC had reports of eleven deaths and an estimated 9,800 injuries.

Chairman Tenenbaum, in a press event and fireworks demonstration on the National Mall, reminded consumers that even with fewer reported deaths and injuries in 2008, the one-month period surrounding the Fourth of July is still the most dangerous time. In fact, 70 percent of all fireworks-related injuries occurred between June 20 and July 20.

“CPSC wants to keep reducing fireworks-related deaths and injuries in 2009,” said Chairman Tenenbaum. “Children should never play with or light fireworks, and adults should watch our demonstrations to see how powerful and dangerous illegal fireworks can be.”

Chairman Tenenbaum was joined on the National Mall by Tony West, Assistant Attorney General for the Civil Division of the Department of Justice; Dan Baldwin, Assistant Commissioner for the Office of Trade within Customs and Border Protection (CBP); and Joseph Riehl, Acting Assistant Director of the Office of Enforcement Programs and Services for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

CPSC continues to work to keep American families safe by educating the public about the risk of injury associated with fireworks, enforcing fireworks regulations, and prosecuting dealers and distributors who manufacture and sell illegal explosives.

As a part of its fireworks enforcement program, CPSC actively works with ATF to investigate roadside stands, warehouses and retail stores that sell professional grade explosives to consumers, and homes that serve as havens for the manufacture of dangerous fireworks devices. These investigations have resulted in dozens of successful prosecutions by the Justice Department’s Office of Consumer Litigation and U.S. Attorney offices across the country.

On June 19, 2009, a federal judge in the Eastern District of New York sentenced Jon Cea and Vincent Cea to 24 months and 36 months in federal prison, respectively, after they pleaded guilty to conspiracy to engage in the business of dealing in explosive materials, involving the illegal sale of more than 1,000 pounds of explosives. The defendants and their customers were not licensed, yet they purchased and sold professional display fireworks. CPSC and the Justice Department worked in partnership on this case.

At the ports, CPSC is working alongside CBP to ensure shipments are in compliance with the federal regulations. With CBP assistance, last year CPSC staff found through sampling and testing of fireworks shipments that forty-nine percent of these shipments contained illegal fireworks.

While the federal government remains committed to stopping the manufacture and sale of illegal fireworks, CPSC encourages consumers who decide to purchase legal fireworks to:

* Never allow young children to play with or ignite fireworks.

* Make sure fireworks are legal in your area before buying or using them.

* Avoid buying fireworks that come in brown paper packaging, as this can often be a sign that the fireworks were made for professional displays and could pose a danger to consumers.

* Adults should always supervise fireworks activities. Parents often don’t realize that there are many injuries from sparklers to children under five. Sparklers burn at temperatures of about 2,000 degrees – hot enough to melt some metals.

* Never have any portion of your body directly over a fireworks device when lighting the fuse. Move back a safe distance immediately after lighting.

* Never try to re-light or pick up fireworks that have not fully functioned.

* Never point or throw fireworks at another person.

* Keep a bucket of water or a garden hose handy in case of fire or other mishap.

* Light one item at a time, then move back quickly.

* Never carry fireworks in a pocket or shoot them off in metal or glass containers.

* After fireworks fully complete their functioning, douse the spent device with plenty of water from a bucket or hose before discarding to prevent a trash fire.

To see this release on CPSC’s web site, please go to: http://www.cpsc.gov/cpscpub/prerel/prhtml09/09258.html

********************************************************

CPSC is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. Please tell us about it: https://www.cpsc.gov/cgibin/incident.aspx

The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency’s jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children. The CPSC’s work to ensure the safety of consumer products – such as toys, cribs, power tools, cigarette lighters, and household chemicals – contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

To report a dangerous product or a product-related injury, call CPSC’s hotline at (800) 638-2772 or CPSC’s teletypewriter at (800) 638-8270. To join a CPSC email subscription list, please go to www.cpsc.gov/cpsclist.aspx. Consumers can obtain this release and recall information at CPSC’s Web site at www.cpsc.gov.

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Huddleston Law Offices site specially formatted for iPhone, Blackberry, PDAs.

June 9th, 2009

People are depending more and more on their cell phones and PDAs to be able to search on the Web, with new search products for such instruments being launched left and right. Not surprisingly, websites often are playing catch-up.

Huddleston Law Offices knows how important it is to ensure that its website content is optimized for mobile search tools.  There are currently over 200 million wireless subscribers who are using the mobile Web while on the run.  Our site content addresses the needs of mobile users, and considers what is important to users in the mobile context.

Huddleston Law Offices mobile site uses the following best practices:iphone

- Don’t use frames or Flash.

- Give different keyword-rich file names.

- Use optimized heading tags.

- Don’t rely on embedded images, objects or scripts.

- Minimize file size.

- Submit your site to major mobile search engines.

“On the whole, clients and vistors to Huddleston Law Offices mobile website will spend as little time as possible getting to the information that they need.” – Brian Huddleston

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Volunteering For The Ask A Lawyer Hotline

May 2nd, 2009

Brian Huddleston manned the phone banks to answer questions from the public on Law Day.lawday

About the annual “Ask A Lawyer” free legal advice project:

Oklahomans can expect an insightful look into the legal system when the annual award-winning Ask A Lawyer call-in show airs. This is the 31st year OETA and the Oklahoma Bar Association have co-produced the show, designed to share information about legal issues in easy-to-understand language.

A series of segments will be shown during the hour to provide a glimpse into Oklahoma’s legal community. The show will feature two segments on the topics of:

  • Consumer law
  • Equal rights in the workplace

Both segments will conclude with a town hall forum moderated by OBA member Dick Pryor.

With the nation’s economy woes on the minds of many, consumers need to be more mindful than ever about who they trust with their money. But sometimes, even the most prudent of us can be exploited. Viewers will meet Roy Sheppard, a hard-working family man who fell victim to predatory lending. Roy’s story is representative of thousands of families across the nation dealing with the foreclosure crisis. The panel of consumer law experts will address this issue along with other consumer topics.

While the United States is often called the land of the free, the rights and freedoms we enjoy have not always been available to all citizens. Oklahoma’s own Ada Lois Sipuel Fisher helped open the doors for African Americans and other minority groups to equal educational opportunities. Viewers will get a glimpse of Ms. Fisher’s struggle to be admitted to the OU law school and find a job after graduation. The panel of civil rights experts will explain how her journey led us to where we are today along with what issues we still face.

During the program, viewers can call in for free legal advice, a community service Oklahoma lawyers are providing in conjunction with the national celebration of Law Day. Viewers statewide will be able to reach an attorney by calling (800) 456-8525 from 9 a.m. to 9 p.m. Viewers who prefer to speak to an attorney practicing in their town or county will be able to see and call local numbers during the broadcast.

“I saw that there is a need in our community for affordable legal advice.  The callers were so grateful for the service.” Brian Huddleston

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Huddleston Law Offices Launches New Website with Aqua Vita Creative

April 30th, 2009

Tulsa, Okla., April 30, 2009 — With 20 years of experience and a long list of satisfied clients in the Tulsa area, Brian Huddleston’s old template website did not reflect thehuddleston-footer-bug professional, high-quality results he delivered for his clients.

“It was a template website, a cookie cutter, and it looked like everyone else’s,” said Huddleston, owner of Huddleston Law Offices.

Since legal services are intangible, it can be hard for a purchaser of legal services to judge between all the options out there.

“When you’re selling your time and your knowledge of the law, conveying an image of professionalism, competence and experience is critical,” said Huddleston. “I think the quality of the website helps potential clients make that decision as a first step. After that, it’s all up to me.”

As an active Rotarian and involved community member, Brian chose a local web design firm, Aqua Vita Creative, rather than dealing with someone remotely by email or over the phone.

“The local community is so important to me,” said Huddleston. “The vast majority of my clients over the last 20 years have come from eastern Oklahoma and Tulsa County. I feel like it’s important to support those local businesses as well.”

Huddleston’s business depends on word of mouth, as satisfied clients refer him to customers, colleagues and friends. When those potential clients check out Huddleston online, he wanted the website to reinforce these recommendations and bolster confidence.

Initially, Huddleston was worried about paying for a cookie-cutter site that looked just like every other attorney.

“I was very happy to see that I got something that was unique, but also conveyed the professional image I wanted,” said Huddleston. “The Art Deco design and Tulsa’s connection to that fit well with a legal-themed website.”

Huddleston had just begun legal work for the development, construction and leasing of Tulsa’s newest industrial park, located along Highway 169. With a busy schedule, Huddleston did not have time to micromanage a design project.

“It was really easy for me, and I wanted it to be easy,” said Huddleston. “My clients receive all of their legal services from me, nothing is passed off to an inexperienced associate or paralegal. My focus is on practicing law, not setting up the website.”

With a back-end content management system integrated into the website, Huddleston also gained the ability to make changes to the site on the fly.

“I have a way to put things up on my website myself without having to get assistance every time,” said Huddleston. “That’s a very useful feature, and I like how it works.”

About Huddleston Law Offices

For more than 20 years, Brian Huddleston has provided legal services with an emphasis on real estate transactions, LLC and partnership formation. Brian Huddleston’s real estate practice focuses on both simple and complex commercial transactions, development, and construction.

About Aqua Vita Creative

Experienced providers of website creation, design, development, and marketing services, Aqua Vita Creative helps organizations in the Tulsa area expand their business and improve their image. They also provide services for several international organizations such as Engineers in Action and Bushenyi Alliance for Rural Health and Development.

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