Stigler 10 Commandments monument may come down

March 2nd, 2010

By Craig Day, The News On 6

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.

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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.”

Posted in Firm News, Real Estate Law | 1 Comment »

Protecting Tenants at Foreclosure Act of 2009 – A Summary

February 20th, 2010

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.

Posted in Legislation & Case Notes, Real Estate Law | 1 Comment »

Courts to jurors: Stop tweeting

February 10th, 2010

By David Kravets, Wired

(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.”

Posted in Legislation & Case Notes | 1 Comment »

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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MY TENANT JUST FILED BANKRUPTCY, NOW WHAT?

January 9th, 2010

Landlords have limited forms of recourse against their residential tenants in bankruptcy.

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.

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MY MECHANIC’S LIEN IS FILED, NOW WHAT?

December 29th, 2009

WHEN TO FILE SUIT TO FORECLOSE YOUR MECHANIC’S AND MATERIALMAN’S LIEN

A Mechanic’s and Materialman’s lien, once filed with the county clerk, is valid for only one (1) year. This is because it directly affects the owner’s title, andpublic policy dictates that the lien be enforced within a short period of time. Enforcement of a lien is done by filing a lawsuit to foreclose. The courts strictly construe the time limit, i.e., the statute of limitation. If you are one day late, the lien may be cancelled by the owner filing an affidavit. Bottom line, do not wait to file suit until the end of the year from the date the mechanic’s lien was filed.

WHERE TO FILE SUIT

Suit must be filed in the district court of the county in which the property is located. Further, it is common for the owner’s construction contract to provide that all disputes will be decided by binding arbitration, as opposed to a court proceeding by judge or jury. In fact, it has long been a tradition to do so in the construction industry. Arbitration is usually quicker and less costly. The decision is final and binding, with almost no right to appeal. There is no right to a jury trial, but that is usually more of a concern to property owners. The Arbitrator is usually an experienced construction attorney or a retired judge. Arbitrations are like a court proceeding with the same general rules of evidence, but much more informal. Since you can only foreclose your lien through a court proceeding, not arbitration, you bring a lawsuit to protect the lien, and then immediately request the court to stay the court proceedings. When the arbitration is done, if you are successful, you go back to court and turn the arbitration award into a judgment.

DO YOU NEED A LAWYER?

Every individual has the right to represent themselves. This means they can prepare all necessary papers, appear at all hearings, and actually try the whole case alone. In so doing, the court considers you to be acting pro se. Before making this decision, consider the following factors:

1. You are a professional and know the ins and outs of not only the construction industry but of the project itself. Your lawyer may not know the facts as well as you.

2. How is your public speaking ability? If you are uncomfortable speaking to a group, you will be even more uncomfortable in court or arbitration. You may not be able to present your arguments. Appearing uncomfortable is often perceived as having deficiencies in your case. People usually think that if you are not comfortable about your own facts, then they must not be that strong.

3. If the other side has a lawyer, you might want to think twice about representing yourself. You will certainly know the facts quite well, but you may be blindsided by legal technicalities.

4. You may also want to think twice if this is a really nasty and emotional case. In other words, if the other side is going for “blood”. Having a lawyer can shelter you from this emotional trauma. No matter how strong you are, unless you are a lawyer, lawsuits are taxing not only on your time, but on your physical and emotional energies.

5. If you have a good case in which you have complied with all the technicalities and performed good work, you are essentially engaging in a collection action. These actions are typically uncomplicated because there are few defenses or defects alleged by the property owner. This makes it easier for you to represent yourself. On the other hand, you will have only yourself to blame if you are unprepared and lose a case that you clearly should have won.

6. If you have a binding arbitration provision, you may consider representing yourself because the arbitrator tends to give you more leeway. There are also fewer rules and not they are usually not quite as strict.

7. You could consider representing yourself but get advice along the way from a lawyer. It is much cheaper that way. On the other hand, the lawyer cannot watch over every move and you might slip up. Many times lawyers can also help you with preparing the forms, simply putting your name on the pleading. You can also bring in your lawyer at the end to actually try the case.

8. Judges and courts do not give legal advice and they cannot make up for you not having a lawyer. Judges usually treat you the same as an attorney which means they expect compliance with the rules. Although some judges give you more slack, don’t count on it.

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On or About the Night Immediately Preceding Christmas

December 22nd, 2009

WHEREAS, 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.

Posted in Firm News, Uncategorized | 1 Comment »

Federal Resources for Struggling Homeowners

December 19th, 2009

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The ongoing economic downturn and the crash in the real estate market have put millions of American homeowners in tough positions. Recent news reports say more than 13% of American mortgages are overdue or in foreclosure, an effect likely to be buoyed by high unemployment and the aftereffects of the exotic and subprime loans made during the housing boom. Unfortunately, large numbers of scammers disguising themselves as “foreclosure rescue” companies and loan modification “consultants” have sprung up to take advantage of those homeowners. As state and federal lawsuits show, far too many of them are successful at taking homeowners’ desperately needed money, sending them even deeper into financial trouble for no gain.

Fortunately, the federal government has launched multiple programs to fight both the foreclosures and the scammers. To help homeowners navigate the complicated and sometimes confusing collection of federal resources, the Federal Reserve Board has collected links to those resources on one page. There, struggling borrowers can find resources to help them avoid foreclosure; apply for the federal Making Home Affordable refinance and loan modification programs; avoid foreclosure rescue scams; and address related issues like credit repair, taxes and loans. The Fed has also established Foreclosure Rescue Centers at each of its 12 district offices, where it connects homeowners with community and local organizations working with troubled homeowners.

The size of this foreclosure crisis, which set new records for foreclosure and bankruptcy rates, is part of the reason the federal government is actively intervening to stop foreclosures. Foreclosures ultimately threaten our nation’s economic stability by threatening the housing market. When a home is foreclosed on, the bank typically loses money. In this market, it is also likely to sell the home at a low price, depressing housing prices. Those prices can be driven down further if the home sits vacant and unmaintained for a long time, because unkempt yards and dilapidated buildings tend to lower the price of the real estate nearby, even if those homeowners are still current on their loans. And of course, the housing downturn has negative effects on real people, who lose their investments, their communities and their dreams along with their homes.

According to the president of the Mortgage Bankers Association, nearly 50% of borrowers who face foreclosure haven’t talked with their lenders, sometimes out of embarrassment and shame. (The MBA’s members have also faced negative publicity after numerous published reports that homeowners’ efforts to talk to their lenders were met with red tape, incompetence or incorrect denials. This has led to a growing number of lawsuits from consumers and their personal injury attorneys.) We do not believe anyone should lose their home just because they were too embarrassed to face discussing their financial problems. And we believe even more strongly that the foreclosure rescue scammers who prey on desperate homeowners would be out of business if all homeowners took the time to educate themselves about what to watch for. That’s why we strongly urge homeowners in financial trouble to take advantage of the resources offered by the federal government.

Posted in Real Estate Law | 1 Comment »

Change of Ordinance Or Law Insurance Coverage

December 17th, 2009

One of the most needed types of insurance coverage is also one of the most commonly overlooked, or even known about. It’s called Ordinance or Law Coverage. As your property becomes older certain changes in your county’s building codes and ordinances change to reflect new standards for construction. If your older property suffers a substantial loss, fixing it may require a higher construction standard to reflect new laws, therefore simply replacing your home as it was just isn’t good enough to meet these new laws and codes.

Let’s say, for example, your home was built in 1972, and in 1993 the building ordinance was upgraded to call for portions of the same building to be built in a different way. Complying with this code could require changes in design and building materials, and could entail substantial additional costs for labor and materials.

As this occurs the cost of replacing your building could be greatly increased. If these new laws are not met during re-construction the codes inspector must stop construction until such time as these building standards are properly met. If your insurance doesn’t cover this increase in government standards then you risk being in a “catch 22″ situation where you will have to pay for these upgrades before completing the repairs and possibly resuming occupancy.

Please review your policy to find out exactly what it offers for ordinance or law coverage.