May Is National Moving Month – Don’t Get Scammed!

May is National Moving Month – the busiest time of the year for people changing residences.  It’s also a busy time of the year for unlicensed movers and scammers.  For tips on how to spot con-artists and avoid scams, check out this video by the American Moving and Storage Association (AMSA).

 

 
If you have been scammed by an unscrupulous moving company, contact the Lawyer Referral Service of the New Hampshire Bar Association for a referral to a licensed and insured attorney who represents consumers.  Call (603) 229-0002 or request an online referral.

 
 

Modifying a Mortgage When Your Name’s Not On It

Getting a Loan Modification for Successor-in-Interest

Mrs. Jones’ husband died of a heart attack last month. To continuing living her home, Mrs. Jones needs to reduce the monthly payment to an amount she can afford with her reduced income. However, when Mrs. Jones contacts the mortgage company to request a modification, she is told that no one can speak to her because “you’re not on the mortgage.”

Although Mr. and Mrs. Jones were both on the title to the property and both signed the mortgage, only Mr. Jones signed the promissory note. Because only Mr. Jones signed the promissory note, only Mr. Jones had the obligation to pay. When Mr. Jones passed away, Mrs. Jones became a successo-in-interest to the property but not to the obligation to pay the promissory note. Mrs. Jones however must pay the promissory note if she wants to stay in the home.

If Mrs. Jones wants to modify the payment terms of the promissory note, she needs to communicate with the mortgage servicer. However, a mortgage loan servicer will only speak with the person(s) who signed the promissory note. This presents a problem for widows and widowers, like Mrs. Jones, who want to stay in their homes but need a loan modification to make it financially feasible. If the mortgage servicer refuses to talk with Mrs. Jones, it is impossible for her to make a reasonable decision about keeping or leaving the home.

Fortunately, in 2014, the Consumer Financial Protection Bureau (CFPB), issued regulations that all servicers must maintain procedures to work with successors-in-interest when a borrower dies. Under the regulations, the servicer must develop policies and procedures to suspend foreclosure, speak with the successor-in-interest and process loan assumption and loan modification documents simultaneously.

This regulation assists widowers, like Mrs. Jones, as well as other people, such as children or siblings, who inherit property. This article addresses the legal status of widows and widowers as successors-in-interest.

In this case, for Mrs. Jones to obtain a modification, she will first need to assume the loan. Generally, contract rights are freely assumable, unless the contract states otherwise. In other words, it is up to Mrs. Jones to decide whether to assume the note. Upon assumption, Mrs. Jones will have all the rights and responsibilities of the original borrower (her deceased husband), including the right to apply for a loan modification.

The Due-on-Sale Clause

Although most mortgage notes do not restrict assumption of the mortgage note, the typical mortgage note restricts the transfer of the property. This is commonly referred to as a “due-on-sale” clause. A due on sale clause allows the lender to demand immediate payment in full when any interest in the property is sold or transferred, without the lender’s prior written consent.

As a practical matter, a due-on-sale clause may limit a person’s ability to assume a mortgage note, because an assumption will likely require a transfer of ownership of the property. Thus, although a party can freely assume the mortgage note, the transfer may trigger the due-on-sale clause and an immediate foreclosure.

Fortunately for Mrs. Jones, under federal law, a due-on-sale clause cannot be enforced when an interest in real property is transferred to a surviving spouse by will or statute. Garn-St. Germain Depository Institution Act and Brush v. Wells Fargo Bank, NA (2013).
In other words, in most cases, a widow can freely assume a mortgage note without permission from the lender.

Once the mortgage note is assumed, Mrs. Jones has the right to apply for a loan modification like any other borrower. However, Mrs. Jones does not want to assume the mortgage loan unless she knows the loan will be modified. Unfortunately, she cannot get an answer about modification until the loan is assumed. To address this catch-22, most lenders have adopted servicing guidelines requiring evaluation of the loan modification first, and then simultaneous approval of both the loan modification and the assumption.

The Process

The process for modification and assumption will be vary depending on the lender. Although different rules apply if the loan is held by the US Department of Housing and Urban Development (HUD), Fannie Mae, Freddie Mac or a private investor using a Home Affordable Modification Program (HAMP) participating servicer, most loans at a minimum have a procedure to assume and modify the mortgage loan. The best place to start research about the lender is the loan look-up tool on Making Home Affordable.

If the loan is serviced by a HAMP servicer, the Making Home Affordable Handbook outlines the requirements and process loan assumption and modification. Under HAMP, a non-borrower widow or widower may apply for a modification as if he or she was the borrower. If the mortgage is already in a Trial Payment Plan (TPP), the servicer is required to send written notice to the widower outlining the requirements to assume the TPP or to apply for a new HAMP modification based on current income. Importantly, the servicer must stay the foreclosure process while the assumption process goes forward.

If the loan is held by Fannie Mae, the servicer must evaluate a modification request from a widow or widower as if it came from the borrower. Likewise, Freddie Mac guidelines allow for simultaneous assumption and modification after the borrower’s death. Finally, HUD has a general policy allowing loan assumption with a credit review.

In summary, it is possible for a widow or widower to assume and modify a mortgage loan in many circumstances. You should contact a Home Ownership Counselor to assist you with the process. To find a free Home Ownership Counselor visit www.homehelpnh.org or call 2-1-1 (in NH).

Mary Stewart and Krista Atwater are independent contract attorneys for the NH Bar Association Foreclosure Relief Project. For information about assistance with a loan modification, see www.homehelpnh.org.

Family Photos

Photo by www.personalcreations.com

What if I am Denied Unemployment Compensation?

Losing a job for whatever reason can be a real blow to individuals and their families. One way to take charge of the situation and minimize the financial downside is to file for unemployment compensation insurance right away.

NH Legal Assistance publishes an excellent informational pamphlet on the unemployment compensation application process, which advises:

If you become unemployed, it is important to file your claim for unemployment benefits. Do not wait. You can lose benefits if you delay filing your claim. Keep filing every week. Do not assume you will be ineligible. You may be found eligible. Also, many cases may be won on appeal, so don’t stop filing if you get a denial that you want to appeal.

Additional detailed information regarding the process may also be found at the New Hampshire Department of Employment Security.

If you have been denied unemployment compensation, you have the right to appeal. Information about the appeals process may be found in the links above. If you would like the assistance of a competent and insured attorney to guide you, and you are not eligible for free or Reduced-Fee legal assistance, call the Lawyer Referral Service (LRS) of the New Hampshire Bar Association. We can be reached at 603-229-0002, or request a referral online.  LRS can also assist with referrals to attorneys who handle other employment-related issues such as Wrongful Termination or Worker’s Compensation.

Unemployment Insurance Claims Office sign

Unemployment Office – Photo credit Burt Lum                     Flickr Creative Commons

Bullying in the Workplace

bullyfree_fcc_Eddie~sThe issue of bullying is currently a hot topic in the United States, and it’s not just schoolchildren who are the targets, or offenders. More and more advocacy and law enforcement agencies around the country are receiving inquiries from folks wondering if bullying and/or harassment is a legal cause of action.

According to a recent article in The Employment Discrimination Report, in a recent New York federal court case, the pro se plaintiff, a college lecturer, attempted to bring an action “regarding the bullying and harassment by (his department’s) current Chair.” He told the Court “that he was not alleging that his Chair’s hostility was motivated by his race, sex, age, or national origin.” The federal court held that:

 

“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (“Title VII”), and any complaint to the Equal Employment Opportunity Commission (“EEOC”) based on them does not constitute “protected activity” under Title VII.”

The Court went on to say:

“Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

Read the entire article by Richard Cohen.

On July 28th, 2014, NH’s Governor vetoed an anti-bullying bill, HB 591   Read Governor Hassan’s Press Release regarding the veto.

So what is an employee to do when he/she believes she is being subjected to bullying behavior?  How can an employer protect itself against legal action while maintaining a safe, professional working environment?

The Lawyer Referral Service of the NH Bar Association can help with referrals to competent and insured labor law attorneys who represent employees and/or employers.  Call 603-229-0002 or request a referral online.

Requesting Child Support Orders from the Court

Provided by the Domestic Violence Emergency (DOVE) Project of the NH Bar Association, this is a video presentation to assist pro se litigants (people representing themselves) with requesting child support orders within divorce, parenting rights or domestic violence restraining order cases. The presenters provide a “nuts and bolts” review of the court forms utilized to obtain child support orders.

•Financial Affidavit
•Child Support Guidelines Worksheet
•Uniform Support Order.
The video is a component to the Resource Handbook for Victims of Domestic Abuse, a compilation of resources for library patrons who are navigating the legal system in ongoing family law cases. This program is for informational use only and does not constitute legal advice. To review a copy of this handbook please visit your local library. If you are a victim of domestic abuse you may want to contact a local domestic and sexual violence crisis center at 1-866-644-3574 (24-hour service) for help. If you are in immediate danger you should dial 911 for emergency response.

 


 
Presented by Cathy Shanelaris, Chanelaris and Schirch, PLLC, Nashua, NH & Mary Krueger, NH Legal Assistance, Claremont, NH.

Representing yourself in court can be quite overwhelming. Hiring an attorney to assist you on a limited basis is an option. The Lawyer Referral Service of the NH Bar Association can make referrals to competent and insured attorneys who may provide “unbundled” or “limited scope representation” for child support and other family law matters.  Call 603-229-0002 or request a referral online.

 

Probating Your Will Before You Die

A new state law, in effect as of July 1, 2014, allows a will to be probated before the person passes away.  Under this new law, an individual who has written a will that is likely to be contested may obtain approval of the will from the Probate Court in advance.  It proactively prevents disputes among heirs, avoiding costly litigation.

New Hampshire is one of the few states to have this type of law.

Read more about it in an article written by Paul Briand for the Seacoast Online.

If you would like to speak with an attorney about estate planning, the Lawyer Referral Service of the New Hampshire Bar Association can refer you to competent and insured attorneys who handle estate planning matters.  Call 603-229-0002 or request a referral online.

Last Will & Testament Documents

Does Forced Decryption Violate the Fifth Amendment?

Can the government force a suspect to give up the encryption keys to his/her computer hard drives, to provide evidence to convict the suspect with? Does this violate the Fifth Amendment right against compelled self incrimination? This issue hasn’t yet been directly addressed by the Supreme Court.

“Federal prosecutors have formally dropped demands that a child-porn suspect give up his encryption keys in a closely watched case, but experts warn the issue of forced decryption is very much alive and is likely to encompass a larger swath of Americans as crypto adoption becomes mainstream.”

Read the entire story at Wired.com

If you believe your constitutional rights have been violated, a consultation with a competent and insured Civil Rights attorney can make all the difference.  Call the Lawyer Referral Service of the New Hampshire Bar Association for a referral at 603-229-0002 or request a referral online.

 

keys_woodleywonderworks

Photo by woodleywonderworks at Flickr Creative Commons

Jury Disregards Medical Malpractice Panel Findings

For the first time in NH, a Hillsborough County jury ignored the unanimous decision of a medical malpractice panel, and sided with the family of William Landry Jr., a 36 year old factory worker who died from heart disease in 2005.

Previously, Landry had visited his cardiologist three times after fainting spells and was told there was nothing wrong with him from a cardiac stand point. An autopsy revealed lesions on Landry’s heart and the Medical Examiner estimated that he had developed heart disease in 2004. The lawsuit charged that the cardiologist didn’t perform the right tests.

Medical malpractice panels are made up of a retired judge, physician and a lawyer. They hear the case in secret and the decision is non-binding. If the decision is unanimous, the jury can be told about the decision if the plaintiff decides to go forward with a trial. The process is designed to encourage the parties to settle; however, the lawyer for the cardiologist didn’t offer to settle once the panel gave it’s decision.

Ultimately, the jury disregarded the findings of the review panel and awarded the family $1.5 million.

Read the entire story by Mark Hayward, for the Union Leader.

If you have sustained medical injuries due to the error of medical professionals, a consultation with an attorney experienced with Medical Malpractice matters can make all the difference. The Lawyer Referral Service has specific standards for attorneys who receive these referrals from LRS. Call 603-229-0002 or fill out the online referral request form.

xray-scissors

Identity Thieves May File And Receive Your Tax Return

Waiting until April to file your tax return may allow identity thieves to beat you to it.  These crooks file fake returns using stolen names and Social Security numbers, along with false wage information, generating large fraudulent refunds.

“Our cases have increased by about 650 percent since 2008,” says Nina Olson, the National Taxpayer Advocate, kind of the internal watchdog at the IRS. People go to her when they have a problem with their returns.

The IRS itself says the number of cases has doubled each year in recent years. And a lot of the fraud is coming out of South Florida.

It catches on like fire. It spreads like a virus. Friends tell their friends,” says Wifredo Ferrer, U.S. attorney for the Southern District of Florida.

He calls this crime an epidemic. Fraudsters come from all walks of life: hospital workers, former Marines, white collar professionals and former gang members who have switched from street violence to tax fraud.

Read entire article at NPR.org.

Video Tips from the IRS

If you are a victim of this type of identity theft, contact your Local Taxpayer Advocate.

If you are still not able to resolve your issue, a lawyer  may be able to assist you.  The Lawyer Referral Service of the New Hampshire Bar Association can refer you to attorneys who are skilled at handling identity theft legal issues.  Call 603-229-0002 or request a referral online.

For other tax related matters, contact the Low-Income Taxpayer Project of the New Hampshire Bar Association.

 

 

 

 

Defending Against a Domestic Violence Petition

Due to the lasting effects a domestic violence final order can have on a person’s life, obtaining an attorney as soon as possible is extremely important; however, if one cannot be obtained right away, here are a few Do’s and Don’ts from the Law Offices of Bucknam, Black and Brazil on defending yourself from a domestic violence petition.

Don’t violate the temporary order.  In a Vermont  case a number of years ago where a temporary relief from abuse order was issued, the defendant sent the plaintiff a short love note.  The temporary order was dismissed, after a hearing, for lack of evidence, but the defendant was charged and convicted of a violation of the temporary restraining order.  If the order provides for no contact, that is exactly what it means.  The plaintiff can try to contact you, either directly or indirectly,  but you must never respond.  If you violate the temporary order, you not only will be charged with a crime, but, in my experience, you will have a harder time convincing the court that no abuse occurred.

Don’t give the court the impression you think the plaintiff is crazy or just spiteful, or the court system is biased against you.  Family Court judges are conscientious,  are dealing with limited facts, and are trying to protect potential victims.  In my experience, Family Court judges try hard to be unbiased, and for the most part, they succeed.  However, if you are disrespectful to the court or dismissive of the petition or complaint, it will be much harder for the court to rule in your favor.

Don’t just deny the claims;  if the only evidence the court hears is the plaintiff’s claims and your denials, the court will likely grant the petition or complaint,  because the court will lean on the side of protection.

Do ask for a continuance if you need more time to obtain an attorney and get the facts together.  The Vermont statute allows you a continuance if you were unable to obtain an attorney in time for the hearing, and the court will likely allow you a continuance if you can convince the court that you have witnesses that were not available for the hearing, or need more time to prepare   In New Hampshire, a continuance will be granted “for good cause shown”,  but since New Hampshire provides for more time between the temporary order and the final hearing, a continuance in New Hampshire may not be needed.  A continuance means the temporary order remains in place for a longer period of time, but it is worth it.  A temporary order, if it does not become a final order, is confidential, and the records will be eventually destroyed by the court.

Do keep any texts, emails or other communications from the plaintiff. The Relief from Abuse or Domestic violence statutes require the court to find not only that abuse occurred  but that “there is danger of further abuse.” (Vermont’s statute) or the conduct constitutes a “credible present threat to the petitioner’s safety” (New Hampshire statute).   If the plaintiff tries to contact you after obtaining an RFA or DV order, those attempted contacts may be used to persuade the court that the plaintiff  does not believe that there is danger of further abuse or a present threat to his or her safety.   Remember, however, you can never respond to any communications from the plaintiff after you have been served with a temporary order.

Read the entire article by Attorney Deborah Bucknam

If you have been served with a Domestic Violence Petition, or if you need to obtain a protection order, the Lawyer Referral Service of the New Hampshire Bar Association can help with a referral to an attorney who is specifically experienced with domestic violence petitions.  Call 603-229-0002 or fill out the Lawyer Referral Service online request form.

If you or someone you know is experiencing abuse, contact the NH Coalition Against Domestic and Sexual Violence  or call the 24 hour hotline at 1-866-644-3574