The Home Affordable Refinance Program (HARP) was created for the same reasons as HAMP. HARP allows homeowners who are current on their mortgages to refinance their mortgages with today’s lower interest rates. Prior to this program, many homeowners were unable to take advantage of these lower interest rates due to the fact that their homes had substantially decreased in value and were “upside down” or “underwater.”

The Home Affordable Foreclosure Alternatives (HAFA) program was created for homeowners that do not qualify for mortgage modification under HAMP or those that fail to successfully complete the HAMP trial period. HAFA provides the homeowner with additional foreclosure avoidance options, including a Short Sale or a Deed-in-Lieu of foreclosure.

In these tough economic times, borrowers need to know the available options:

• Reinstatement: Reimbursement of installments that are past due, including additional fees and costs incurred by the lender because of the loan default.

• Payoff: Repayment of amount due on promissory note (principal plus interest and all fees and costs) which gives full discharge of the debt and satisfies the mortgage.

• Forbearance Agreement / Repayment Plan: Agreement between the lender and borrower wherein the lender agrees to stop the foreclosure and the borrower agrees to a payment plan that will bring the loan current over a specific period of time.

• Loan Modification: A permanent change to the existing delinquent mortgage and/or promissory note.  Lender may reduce the interest rate, term of loan, payment options, or other loan provisions to resolve the default.

• Deed in Lieu of Foreclosure: Release of the borrower from the note and mortgage obligations in exchange for a deed to the property.

• Short Sale: Lender’s acceptance of a purchase offer on the mortgaged property that is less than the full amount due on the loan.

This excellent opinion clarifies many important foreclosure issues that are vital to the plaintiff’s standing in a judicial foreclosure.  The assignment of the mortgage by MERS is not the transfer of the note.  But MERS, as nominee, is not the actual owner of the mortgage – that status remains with the payee and transferees of the note.  Assignment of the mortgage by MERS is not necessarily the transfer of ownership, but just the documentation of it.

As more standing challenges are made to residential foreclosure actions with respect to securitized loans, the ability of a foreclosing party, when challenged, to establish that it holds the underlying Note and has the right to foreclose, may actually get seriously scrutinized by more trial courts.  Most foreclosure complaints that are commenced for securitized loans contain the necessary perfunctory and conclusory allegations, but they may nevertheless fail if trial courts will require lenders to meet their burden of proof by producing admissible evidence that traces the true ownership trail of the Note or the loan.

The underlying standing rules vary from state to state, and it is difficult for borrowers to challenge their lenders and stop their foreclosures.  But a foreclosing trustee may find that there are serious legal consequences (e.g., bad faith, breach of contract, attorney fees, costs, etc) if a standing challenge is asserted, and the trustee proceeds with the foreclosure without being the holder of the underlying Note at the time the action is commenced.

Here are some memorable and inspiring Memorial Day Quotes:

“The brave die never, though they sleep in dust: Their courage nerves a thousand living men.” – Minot J. Savage

“And I’m proud to be an American, where at least I know I’m free. And I won’t forget the men who died, who gave that right to me.” – Lee Greenwood

“The patriot’s blood is the seed of Freedom’s tree.” – Thomas Campbell

“I have never been able to think of the day as one of mourning; I have never quite been able to feel that half-masted flags were appropriate on Decoration Day. I have rather felt that the flag should be at the peak, because those whose dying we commemorate rejoiced in seeing it where their valor placed it. We honor them in a joyous, thankful, triumphant commemoration of what they did.” – Benjamin Harrison

If you are a homeowner performing a DIY renovation, repair, or painting work in your own home, EPA’s RRP rule does not cover your project.  However, you have the ultimate responsibility for the safety of your family or children in your care.  If you are living in a pre-1978 home and planning to do painting or repairs, please read a copy of EPA’s Renovate Right Brochure lead hazard information pamphlet. You may also want to call the National Lead Information Center at 1-800-424-LEAD (5323) and ask for more information on how to work safely in a home with lead-based paint.

Contractors

Renovations and repairs of pre-1978 housing must now be conducted under new lead-safe practices mandated by the U.S. Environmental Protection Agency’s new Lead Renovation, Repair and Painting Rule.  The Rule requires contractors working in pre-1978 housing and child-occupied facilities to follow a number of prescribed procedures to reduce potential exposure associated with the disturbance of lead-based paint. These include:

• Minimizing dust
• Containing the work area
• Conducting a thorough cleanup

In addition to these work practices, the Rule also includes increased training and certification requirements for firms and individual employees, as well as new verification and record-keeping requirements.  The EPA’s sample pre-renovation disclosure form may be used for this purpose. Violations of the Rule are punishable by fines of $32,500 per violation, per day.

As originally proposed in 2008, the lead-based paint rule included a provision allowing a contractor to opt out of the requirements by obtaining certification from a property owner residing at the work site that no child under age six or pregnant woman resides in the home, and the home is not a child-occupied facility.  This opt-out provision has been eliminated and, there are no exceptions to the new requirements for renovation or repair of any covered structure built before 1978.

With the elimination of the “opt-out” provision, the RRP Rules require that anyone who receives compensation for renovation work at single family homes, multi-family housing and child-occupied facilities (such as day care facilities and schools) built before 1978 must use a certified firm or individual to perform this work. Essentially, this now means that anyone other than the DIY owner/occupant of a single family home is subject to the RRP Rules.

An estimated 80 million homes built before 1978 contain some lead-based paint. The National Association of Home Builders estimates that the new rule could add $500 to $1,500 to the cost of a project estimated at $5,000 or more.

Realtors and Property Management Firms

Realtors and property managers should make themselves aware of the requirements in the Lead Renovation, Repair and Painting (RRP) Rule. The EPA is working with the National Association of Realtors to make realtors and property managers aware of the hazards of lead paint poisoning and ways to prevent it, and the association has developed a series of guidance videos aimed at realtors and property managers:

• View the National Association of Realtors lead paint renovation rule compliance guide overview
• View the National Association of Realtors lead renovation rule guide for real estate agents and brokers
• View the National Association of Realtors frequently asked questions for realtors
• View the National Association of Realtors lead renovation rule guide for property managers
• View the National Association of Realtors frequently asked questions for property managers

New Proposals

In addition, on May 6, 2010 the EPA published two more proposals for the lead-based paint program.  The agency proposes to require dust-wipe testing after most renovations and delivery of wipe test results to the owners and occupants of the building. EPA rules for lead-safe work practices to renovations on public and commercial buildings are on the way for industrial and office buildings, government-owned buildings, colleges, museums, airports, hospitals, churches, stores, warehouses and factories.

1) True or False:

Answer: False. It’s one of the most common misconceptions around. The 3-day cooling off rule (both Oklahoma and Federal) applies to home solicitation sales such as vacuum cleaners and cutlery. It is not for cars. Once you sign the papers, once you drive the car off the lot, it is yours.  This is why you should test drive the exact car you are planning to buy BEFORE you sign the final papers.  Also, if you are buying a used car, pay to have a private mechanic look at the car prior to purchase. There is a worksheet available online, Lemon Dodger Worksheet, which you can take with you when purchasing a car. Also, check out on-line car reporting services, such as www.carfax.com, which can provide the history of the vehicle.

• A used car which is sold without a warranty is sold “as is.” That means the seller has no obligation to fix any problem that may arise. Check the Buyer’s Guide window sticker to determine if you will receive a warranty. That sticker will tell you if you have a warranty, or if you are buying “as is.”
• Carmax has been known to insert the following in their contract: “5-Day Money-Back Guarantee – We know that not every car is perfect for every person, so all used CarMax cars can be returned for any reason within a 5-day period. See your Sales Consultant for written details.”
• Check your contract to see if the dealer chose to add a clause to your contract that allows you to return the car within a specified amount of time.

If the new car is a lemon as defined by the OK lemon law, there is some relief available.  Here is the link to the OK lemon law: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=66311 Don’t be dissuaded by bad advice from your dealer, the mechanic at the repair shop or the manufacturer, concerning what you may be entitled to under the lemon laws. Don’t think that you can’t afford to seek lemon law help or that you don’t “qualify”. Your rights are determined by the Lemon Law and the Federal Lemon Law (Magnuson-Moss Warranty Act).

Finally, if your Google search regarding the Federal Trade Commission’s three-day right to cancel – called the Cooling-off Rule – lead you to my website, you have three (3) days to cancel your purchase of $25 or more made at your home, workplace or dormitory or at facilities rented by the seller on a short-term basis.

- Brian Huddleston

HASKELL COUNTY — A Ten Commandments monument outside the Haskell County Courthouse will have to be moved soon.

The U.S. Supreme Court refused to get involved in a dispute over the monument. That affirms a lower court ruling that the statue must go, but there are still plenty of opinions on both sides of the debate.

Stigler is home to about 3,000 people. Fifty churches are in the Haskell County phone book. And it’s a town at the center of the debate over religious monuments on public property. A place where just about everyone has an opinion about the Ten Commandments controversy.

“I’m a Christian. I come from a religious background, and I think that it is beautiful there,” said Beth Bray, a Whitefield resident.

For six years, the stone Ten Commandments monument has stood outside the Haskell County Courthouse. For nearly as long, it’s been challenged in federal court and argued by supporters and opponents.

“It’s something the people wanted,” said Andy Mannon, a Haskell County resident.

“You’re just not supposed to mix the two, that’s part of our constitution,” said Sharon Nichols, an ACLU Member.

A federal court ruled the display unconstitutionally endorses religion. The Supreme Court refused to take up the issue, meaning the monument must go. It’s not what most in Haskell County want to hear.

“I think it should stay,” said Mannon.

“I can’t imagine anybody thinking that that is causing a problem being here,” said Bray.

But then, there is Sharon Nichols. While certainly in the minority, she’s pleased.

“To me, if you don’t uphold the constitution’s separation of church and state, nobody’s religion or religious beliefs are safe,” said Nichols.

The monument is expected to be removed in a week. While there are still opinions, both sides agree, they’re glad the issue is settled and they can put the controversy and the spotlight behind them.

There’s some talk in Haskell County that the monument could be placed in a vacant lot across the street from the courthouse, or at a nearby business. The News On 6 also heard one option was to put it on private property just off Highway 9 where drivers would see it as they head into Stigler.

The Helping Families Save Their Homes Act of 2009 (Pub. L. 111–22) provides a 90-day notice requirement and additional protections for tenants in foreclosed properties.  Below you will find the major provisions outlined under Title VII, Protecting Tenants at Foreclosure Act of 2009.

- During the term of the lease, the tenant has a right to remain in the unit and cannot be evicted, except for actions that constitute good cause.

- If the lease ends in less than 90 days, the new owner may not evict the tenant without giving the tenant at a minimum 90 days notice.

- At the end of the term of the lease, the new owner may terminate the tenancy if the new owner provides a 90-day notice.

- The new owner may terminate the tenancy if the owner will occupy the unit as a primary residence, and has provided the tenant a notice to vacate at least 90 days before the effective date of such notice. This is the only exception to the rule that the tenant may not be evicted during the term of the lease.

These provisions expire on December 31, 2012.

Click here to read Title VII, Protecting Tenants at Foreclosure Act of 2009.

(Wired) — A federal court policy-making body is belatedly entering the internet age by proposing that judges clearly inform jurors they must not electronically discuss cases they are hearing.

It’s standard procedure to inform jurors to remain mum and not conduct any research about the case until a verdict. But recent gadget use by jurors has forced the hand of the Judicial Conference of the United States, the policy-making body of the federal courts.

The model jury instructions the Judicial Conference released to the federal judiciary in late January specify:

“You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.”

U.S. District Judge Julie Robinson of Kansas, the chair of the Judicial Conference Committee on Court Administration and Case Management, told the nation’s judges in a Jan. 28 memo that the new jury instructions “address the increasing incidence of juror use, of such devices as cellular telephones or computers, to conduct research on the internet or communicate with others about cases.”

Robinson told fellow judges that “more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.”

A federal drug trial in Florida ended in a mistrial last year when eight jurors admitted they were doing internet research on the case they were hearing.

Among other examples, there was a call, although unheeded, for a mistrial when a juror was discovered tweeting and publishing trial updates on Facebook in the prosecution of Vincent Fumo, a former Pennsylvania state senator convicted of graft.

There are no nationwide instructions for the state courts, because each state adopts its own set of jury instructions. Florida, for instance, is recommending that its judges instruct jurors multiple times “that they cannot perform outside research using the internet, or use electronic devices to communicate about the case.”

Personal bankruptcy filings are up everywhere, and they are impacting residential property owners more than ever.  While the United States Bankruptcy Code (“Code”) is complicated and has its faults, and may be interpreted and imposed inconsistently across the US, the Code offers residential landlords some limited protections.

Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 “BAPCPA”, if a residential landlord already has a judgment for possession by the time the tenant files for bankruptcy, the automatic stay does not prevent the landlord from continuing to evict the tenant after 30 days after the petition was filed [unless the debtor cures any deficiency in rent and deposits with the clerk of the Bankruptcy Court the rent coming due during that 30 day period]. Specifically, the Code provides, in Section 362(b)(22), that the automatic stay shall automatically cease 30 days following the bankruptcy filing date to permit landlords to continue any eviction, forcible entry and detainer “FED”, or similar proceeding against a debtor-tenant where the landlord has obtained a judgment for possession against the debtor-tenant prior to the bankruptcy filing.

If the landlord has not already filed an FED and obtained a judgment prior to the bankruptcy filing, and if the tenant rejects the lease, the tenant is liable for breaking the lease early. If the tenant-debtor rejects the lease, the landlord can give the tenant notice to quit. After that, the landlord can begin eviction proceedings if the tenant doesn’t leave.  The tenant is liable for a portion of the rent that would have been due, but this debt is like any other unsecured debt in the bankruptcy, and is dischargeable.

Upon filing the petition (the original bankruptcy filing), the Code requires the tenant or the trustee in Chapter 7 cases to timely perform all obligations of the lease from that date until the lease is assumed or rejected. If the debtor or trustee fails in that duty, the landlord may seek relief from the automatic stay and proceed with an eviction or FED. It is important for landlords to not overlook this rule.

In a Chapter 7 case, the Code provides that a lease of residential real property is automatically rejected if the trustee does not assume or reject the lease within 60 days after the bankruptcy is filed. If the lease is rejected, the lease automatically is deemed to have been breached as of the day before the bankruptcy filing and the landlord is entitled to repossess the premises in accordance with state law. As a result, any damages that the landlord might suffer are treated as pre-petition general unsecured claims. The code limits “rejection damages” to either 15 percent of the balance of the rent reserved in the lease or the rent reserved for one year from the filing date or the date the premises were surrendered, whichever is earlier. In addition, the claim can include any pre-petition rent due at the time of the filing.

In a Chapter 13 bankruptcy the landlord must be more vigilant because the debtor may assume or reject an unexpired lease of residential property at any time before the confirmation of a Chapter 13 plan. The court, however, at the request of a party to the lease, may order another specified period of time to assume or reject. Debtors often put off assuming or rejecting a lease until the Chapter 13 plan confirmation. The date for confirmation of a debtor’s plan varies from court to court. In jurisdictions where the scheduled confirmation date is far off, it is prudent for the landlord to request an earlier deadline, especially where the debtor is unable to timely make post-petition payments.

A landlord should closely scrutinize the Chapter 13 plan because it will likely affect the landlord’s rights. Assumption of the lease is something that would usually be included in the Plan. An assumed lease becomes a debtor’s post-petition obligation, making any claim from a subsequent default an expense of administration in the Chapter 13 proceeding. That claim then becomes a high priority in the distribution of funds in the event the Chapter 13 case is converted to Chapter 7.

Assuming a lease requires the debtor to prove various elements. In order to assume a lease a debtor must provide adequate assurances that it (or another tenant, if it intends to sublease) will promptly cure any defaults, compensate the landlord for any financial loss resulting from a default and provide adequate assurance of future performance.

The requirement of adequate assurance protects the landlord if the debtor wants to either assume the lease, or assume and assign it. The requirements provide defenses for the landlord against the attempted assumption. If the debtor cannot provide evidence that it can meet these requirements, then the lease cannot be assumed.

An obvious indicator of the debtor’s ability to provide adequate assurance is whether the debtor can cure the defaults by immediate payment of all past due rent and expenses incurred by the landlord. Debtors who cannot immediately cure, may propose to cure defaults by paying pre-bankruptcy rent as a general unsecured claim. Their inability to pay in full may be used as a defense by an objecting landlord.

Section 362(b)(23) of the Code provides that the automatic stay does not apply to eviction actions based on endangerment of the property or the illegal use of controlled substances on the property. In this case, the landlord must file a certification with the Court stating that the eviction action has been filed or that, within 30 days prior to the petition date, the debtor has endangered the property or used illegal drugs on the property. Relief from stay will be granted to the landlord within 15 days of the filing of the certification unless the debtor timely files a response to the certification and then proves a subsequent hearing that the situation that gave rise to the eviction complaint has been remedied. See, 11 U.S.C. Section 362(m).

The strategy a landlord employs when a residential tenant files bankruptcy varies depending upon which Chapter the case is filed under and the facts of each case. Chapter 13 cases tend to present a landlord with more issues because the debtor may want to assume the lease.

When the landlord learns of the bankruptcy of its tenant, he must act promptly to protect his rights. Sitting on those rights may prejudice the landlord forever.

DSNews.com reported earlier this week, the U.S. Treasury Department announced new guidelines to the short sale process on Monday in hopes of speeding up the recovery of the housing market. Occurring when a lender accepts the sale of a home at a price below the actual amount owed, short sales have become a growing part of the real estate business as troubled homeowners seek out alternatives to foreclosure.

Under the Making Home Affordable program, this new plan will aim to assist struggling homeowners by offering easier aid and financial compensation. The short sale process will be streamlined, making it less difficult for companies to complete these transactions. This new legislation will help decrease the amount of unnecessary paperwork while still requiring essential information.

RE/MAX, who claims to have the most versed associates in short sales and foreclosures, fully supports these reforms and said its executives have been promoting this initiative for the past year. David Liniger, chairman and co-founder of RE/MAX, started pushing for a streamlined short sale process shortly after foreclosures began to flood the market and presented specific proposals to government officials in Washington D.C. He believes these new reforms will help many families avoid the trauma of foreclosure and help the housing market stay on the road to recovery.

“Short Sales are absolutely critical as more and more people continue to face foreclosure and as our housing market struggles to recover,” said Liniger. “While not all of our recommended changes were implemented, the Treasury’s new guidelines go a long way in incentivizing both lenders and homeowners to work together to keep homes from falling into foreclosure.”

Through these reforms, the short sale process will be enhanced. Mortgage servicers will have 10 days to accept or reject a short sale request, and after the transaction is complete, it is possible that the borrower could be completely released from debt. Financial incentives will be provided to borrowers selling their home through a short sale and to mortgage-servicing companies completing short sale transactions. The program also facilitates the transfer of ownership by a borrower through a “deed in lieu of foreclosure.” Through this enhanced process, short sale transactions are projected to dramatically increase, resulting in less vacant and vandalized properties around the nation.

As almost one quarter of American homeowners are underwater in their mortgages, Scottsdale, Arizona-based Loan Resolution Corporation said it believes the government’s new legislation will encourage short sales in order to reduce foreclosures and prop up the nation’s ailing real estate market, but the company isn’t convinced the program will be accepted by subordinate lien holders. As part of the reform, subordinate lien holders will be paid up to $3,000 of the short sale proceeds, pending agreement by the investor to share the earnings. The Treasury said second lien holders who want more than this will have to pursue a short sale outside of the federal program.

“While we are excited about the new measures that the Treasury announced, we believe that subordinate lien holders will have a limited adoption rate of the program,” said Travis Hamel Olsen, COO of Loan Resolution Corporation. “It is a step in the right direction, but there needs to be more incentive to subordinate lien holders.”

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Click on Hamp Update if you want to read it for yourself.  If you want to read the entire Supplemental Directive, you can find that at Directive.  Brian