Ten Facts about Mortgage Debt Forgiveness
Posted on | March 9, 2010 | 1 Comment
My friend and mortgage consultant, Mickey Brooks, and I were talking this week about a client who needs to refinance her home. We got to talking about mortgage debt, tax sales and a variety of topics. Tax liability that can arise when a mortgage debt is forgiven came up briefly. Then, it came up in another conversation yesterday. And then a law partner sent me the following summary from the IRS. Clearly, this is an important topic, so I thought I’d share this excerpt from an IRS newsletter-
Ten Facts about Mortgage Debt Forgiveness
If your mortgage debt is partly or entirely forgiven during tax years 2007 through 2012, you may be able to claim special tax relief and exclude the debt forgiven from your income. Here are 10 facts the IRS wants you to know about Mortgage Debt Forgiveness.
- Normally, debt forgiveness results in taxable income. However, under the Mortgage Forgiveness Debt Relief Act of 2007, you may be able to exclude up to $2 million of debt forgiven on your principal residence.
- The limit is $1 million for a married person filing a separate return.
- You may exclude debt reduced through mortgage restructuring, as well as mortgage debt forgiven in a foreclosure.
- To qualify, the debt must have been used to buy, build or substantially improve your principal residence and be secured by that residence.
- Refinanced debt proceeds used for the purpose of substantially improving your principal residence also qualify for the exclusion.
- Proceeds of refinanced debt used for other purposes – for example, to pay off credit card debt – do not qualify for the exclusion.
- If you qualify, claim the special exclusion by filling out Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness, and attach it to your federal income tax return for the tax year in which the qualified debt was forgiven.
- Debt forgiven on second homes, rental property, business property, credit cards or car loans does not qualify for the tax relief provision. In some cases, however, other tax relief provisions – such as insolvency – may be applicable. IRS Form 982 provides more details about these provisions.
- If your debt is reduced or eliminated you normally will receive a year-end statement, Form 1099-C, Cancellation of Debt, from your lender. By law, this form must show the amount of debt forgiven and the fair market value of any property foreclosed.
- Examine the Form 1099-C carefully. Notify the lender immediately if any of the information shown is incorrect. You should pay particular attention to the amount of debt forgiven in Box 2 as well as the value listed for your home in Box 7.
For more information about the Mortgage Forgiveness Debt Relief Act of 2007, visit IRS.gov. A good resource is IRS Publication 4681, Canceled Debts, Foreclosures, Repossessions and Abandonments. Taxpayers may obtain a copy of this publication and Form 982 either by downloading them from IRS.gov or by calling 800-TAX-FORM (800-829-3676).
Setting Up An Indiana LLC
Posted on | March 7, 2010 | No Comments
Question: “We formed an LLC a few years ago, but haven’t done anything with it. We do own properties and a business, but nothing is titled in the name of the LLC. There are several family members involved and our tax returns are a mess. Any advice on what we should be doing?”
Matt’s Answer: “Yes, I advise you to gather all your deeds, financial records and company records, and sit down with your business or real estate attorney, your CPA and your insurance agent. I have reviewed your company records, and can see that you’ve done essentially no planning. We need to develop a plan for you. You need an asset protection plan that includes some training and education on how to operate your LLC. You need to get better insurance on your properties, your business and the LLC members. You need to fix your company record book, which includes the drafting and completion of an Operating Agreement. And, that Operating Agreement should contain buy-sell provisions to address what I call the “Big D’s-” death, disability, marital divorce, dissolution of the entity, and disinterest by one or more members. You also need to fix certain accounting and tax irregularities, which flow from your failure to devise a plan.
Your meeting with your attorney should last one hour to two hours, and should include training and instruction on how to operate this business. Yes, it is a business. “Real Estate Investing” is a misnomer. It should be called “Real Estate Management” or “Real Estate Business.” You should apply basic business principles to your real estate business. Although I cannot explain in great detail here everything you need to do to correct the shortcomings of your operation, I can assure you that it is a fairly routine matter for an experienced real estate and business attorney. This is not difficult to correct, but you need to consult with professionals and implement a plan. Do not believe everything you’ve read in a book, on the Internet or in a seminar manual. And do not expect your CPA or insurance agent to fix your legal matters, as each of these three professionals has his or her own expertise and field of licensed competency. Go see all three- an attorney, a CPA and an insurance agent- and get your house in order as soon as possible. Within thirty days, you should have your real estate business matters in order.”
Landlording 101- Indiana’s 45-Day Letter Rules
Posted on | March 4, 2010 | No Comments
Question: ”What is the 45-day letter?”
Matt’s Answer: ”Indiana law requires a landlord to give a tenant an itemized list of damages and the balance, if any, of the security deposit to a tenant within 45 days after the landlord regains possession.”
Question: ”Is is the 45-day letter required in every leasing situation?”
Matt’s Answer: ”This law applies to residential leases, in which the landlord has collected a security deposit. Be aware that “security deposit” is broadly defined. A security deposit includes any monies beyond the next month’s rent. So, if you collect the first month’s rent, the last month’s rent and a security deposit, all those monies, except the first month’s rent, are included in the security deposit.”
Question: ”Does the 45-day letter have to be in writing? Where do I send it?”
Matt’s Answer: ”You send the 45-day letter, in writing obviously, to the tenant’s forwarding address. Until the tenant provides the forwarding address, you need not send the letter. However, I think it is a bad idea to await the tenant’s forwarding address. Unless you have the address in writing, I recommend you send the 45-day letter to every address you have on the tenant, including the rental unit the tenant just vacated. More than once, I have been in court when a tenant has lied about giving the landlord the forwarding address verbally, or on the back of an envelope or scrap paper. Do not risk losing your case. Send the letter someplace, so you can prove to the court that you tried to comply with the law. And keep copies of the letter and even the envelopes you mail.”
Question: ”Is this all I need to know about the 45-dy letter?”
Matt’s Answer: ”No. I could write a small book on the topic. It has been the source of much litigation in Indiana over the years. This article is just an introduction to the topic.”
Indiana Attorney General Targets Real Estate Investors
Posted on | March 4, 2010 | 6 Comments
If you are engaging in any of these real estate transactions in Indiana, you should read this blog article-
- Buying on option & then selling (assigning) the option.
- Buying & reselling using a “double close”
- Buying “subject to” an existing mortgage
- Listing properties you do not own on your website, in fliers, in newspapers, etc.
- Using “bandit signs” or using the phrase “We buy homes” in your marketing materials.
In the past six months or so, I’ve had multiple conversations with Deputy Attorneys General, and other business and real estate attorneys about how the Indiana Attorney General is applying certain laws. Some of those conversations have been very long and very frustrating. In short, it is clear to me that the Attorney General has essentially declared war on certain small real estate investors who engage in “subject to” transactions with or with having a real estate license. In particular, there are two key statutes that the Attorney General is using to target small real estate investors-
- Indiana’s home mortgagor protection statute, effective July 1, 2007
- Real estate licensing statute.
The Attorney General views essentially every “subject to” transaction as unlawful. If you take title “subject to” an existing mortgage, you better have a bond, as the Indiana Code now requires. And, you better not be holding a Power of Attorney from the seller-owner. And even then, you better have a rock-solid contract with plenty of notices, warnings and disclaimers. And, if you satisfy these requirements, you might be in trouble if you do these deals often without a real estate license.
All of this is done in the name of protecting homeowners. The Attorney General sees this as consumer protection. I respectfully disagree. There are ethical, responsible real estate investors who save houses from foreclosure. The Attorney General’s approach diffrs from what I would do, in that his office seemingly attacks all investors doing deals “subject to.” I would favor an approach that distinguishes between good deals that help people and bad deals that hurt people.
Several months ago, the Attorney General conducted a statewide sweep. He gathered evidence on anyone with a website or bandit sign that read “We buy homes.” Seriously, that happened. The Attorney General started an investigation and issued document requests on 100’s, and maybe 1,000’s, of investors who used the phrase “we buy homes” in advertising messages. I think such tactics are unfair and uinwise.
I wish the Attorney General and the Indiana General Assembly understood the difference between legitimate “subject to” deals and the “get the deed at all costs” deals. Nor does the law they wrote distinguish between good deals and bad deals.
My advice? STAY AWAY FROM “SUBJECT TO” TRANSACTIONS IN INDIANA. Let the house go into foreclosure, buy it REO, and thank the state government for helping you drive down the price. Yes, that will hurt many homeowners, but let government officials explain the policy to homeowners who could have benefitted from a fair “subject to” deal.
Do you need a license to sell my own property?
One day, I had an hour-long argument with an investigator with the Attorney General’s Office who tried to convince me that you need a license to sell your own properties on your own website, if you sell more than a few at a time. I referred that investigator to the U.S. and Indiana constitutions. See “fundamental property rights.” I got a call back from a Deputy A.G. who apologized and retract the mistatements made by the investigator.
Here’s the deal. . . the Attorney General now takes the position that you cannot find a property, take an option on it, and then assign the option for a fee, without a real estate license. I assume that the Attorney General’s policy would extend to buying properties by contract, if the buyer merely marketed and assigned the land contract to another buyer.
The impact of these new policies, which are not law, are enormous on small investors-
- Bird Dogging is dead in Indiana.
- Even worse, most land speculation is dead in Indiana!
You might be wondering if the law changed recently? Did the Indiana General Assembly pass a law making options or landcontract assignments unlawful? No, there was no change in the law. The Attorney General simply decided that the licensing statute now applies to the assignment of options, and presumably to land contract assignments as well.
I should note that these new policies appear to extend only to residential homes. I doubt that commercial properties will be impacted, as there is no “consumer” to protect in a commercial deal.
Conclusion.
If the Attorney General can simply make a policy decision that has the effect of changing the law, I am not sure that you can safely rely on prior case law decisions and well-intend, well-established business practices. Now more than ever, you need to be very careful in such deal structures.
STOP TAKING LEGAL ADVICE FROM “LEGAL WITCH DOCTORS” AT A SEMINAR OR BOOTCAMP WHO JUST WANT TO SELL YOU A DVD OR FORMS ON CD! Those are things that are going to get you investigated or sued or prosecuted. There are no “get rich quick” real estate deals, and your legal documents and deal structures better be vetted by a knowledge real estate attorney. If not, you’re playing with fire. I hope none of you reading this get burned.
Fully Virtual Law Office Is Launched in Indiana
Posted on | March 1, 2010 | No Comments
Indianapolis, IN: March 1, 2009 – Tiffany U. Vivo, an Indianapolis attorney and Managing Partner of Vivo Law Offices, LLC announced today the launch of Indiana’s first fully virtual law office (VLO) in Indiana. The VLO’s address is www.IndianaVirtualLaw.com.
A virtual law office (VLO) is a web-based law practice that enables clients and lawyers to communicate through encrypted messages from any web access point at times convenient for the client and typically at reduced costs. A VLO is not a website operated by non-lawyers selling legal documents, such as Legal Zoom. Rather, a VLO is a licensed law office that uses the web to facilitate attorney-client communications and the safe exchange of data and documents with a licensed attorney.
“By eliminating expensive law offices, large staffs and other unnecessary overhead, our VLO can deliver cost-effective legal services from Indiana-licensed attorneys at lower costs,” explained Vivo. Increasingly, consumers are turning to the Internet for solutions to legal, medical, home improvement, car repair and other problems. “A VLO is not right for every client, but VLO’s do offer many clients access to a knowledgeable and experienced attorney, and good legal documents at a fraction of the cost,” Ms. Vivo further explained.
The other huge advantage of a virtual law office is convenience. A virtual law office can be accessed by a client anytime from anywhere the Internet is available. “There is no doubt that clients expect more convenience. Many clients do not want to drive in downtown traffic, find parking and then fight crowds and elevators just to see their lawyer,” noted Matthew Griffith, an Indianapolis attorney who often meets clients away from his downtown office. “Coffee shops are my office away from the office,” Griffith added.
“It is important that any law virtual firm office strictly adhere to the Indiana Rules of Professional Conduct and the Best Practice Guidelines for Legal Information Web Site Providers written by the E-Lawyering Task Force of the American Bar Association’s Law Practice Management Section and the ABA Standing Committee On the Delivery of Legal Services,” said Ms. Vivo.
About Tiffany U Vivo, Attorney: Tiffany U. Vivo is an Indiana attorney. At her physical law office, she practices immigration and family law.
WHY AM I A LAWYER? WHY ARE YOU A _____(baker, salesman, home builder, etc.)?
Posted on | February 16, 2010 | 1 Comment
Passion.
You absolutely must have it to be in business for yourself. And I am NOT talking about the love of money. You gotta love the product or service you offer. Actually, there is a better way to describe “business passion”-
Passion is the unstoppable desire to make the world a better place by offering your particular product or service.
We do well the things we love. We do poorly the things we hate doing.
So, do what you love, and, assuming there is a need, want or desire for your product or service offering, you’ll make money at it. Why? Because, you’ll deliver quality, and that will keep your customers happy. Happy customers come back, and they bring their friends. Your business will grow. You’ll attract employees and strategic partners who share your passion for changing the world one sandwich, insurance policy or legal document at a time. You’ll be happy, you’ll come to work with enthusiasm, and profits will follow. The proof of what I’m saying will be easy to see.
I got an awesome “thank you” card and a box of gourmet brownies from a client this week. Here’s what the card said-
“Thank you. I cannot begin to thank you enough for all of your help and guidance early in my investing career. You have kept me from making mistakes and helped me capitalize on opportunities that have come my way. Your mentorship and knowledge is much appreciated and having someone like you on my team is very special. I hope one day we can do a deal together in some aspect and I can pay you back for all of your time and hard work. I appreciate your efforts on my real estate contracts and needs.”
After reading that, do you have any doubt why I practice law and coach entrepreneurs? Can you sense why I am a business lawyer and business coach? Do you think that I just might have a passion for helping business people? Most importantly, can you match my passion for practicing law and business coaching with your passion for your chosen field? Can you?
If so, congratulations. You’ve chosen the right vocation.
If not, let’s do some soul-searching. It might be time for you to make a change.
Indiana REALTORS Explain New Home Buyer Tax Credits
Posted on | February 5, 2010 | No Comments
There is much confusion about the Home Buyer Tax Credits passed by Congress over the past two years. My blog contains several articles about the topic, and I have posted many great ideas from Mortgage Consultant Mickey Brooks. Here’s another source of information, if this topic interests you-
IndianaREALTORS on the Home Buyer Tax Credit
I don’t know how long this link will be good, so read this now, if you’re interested in the topic.
Business goals & limiting liability
Posted on | January 28, 2010 | 2 Comments
Chances are that your lawyer has never encouraged you to establish business goals as a legal strategy. In this blog, I hope to convince you that goal setting is a great way to reduce your chances of getting sued or having other legal troubles. Of course, setting goals is only part of the battle. What’s a goal worth, if you never take the next step: Implementing a plan to meet those goals? But, let’s start here- Goal Setting.
I think business goals are best defined as components of your “Vision.” What is it you are trying to create, build, rebuild or restructure? What will your company look like in 12, 25, 60 months from now? For example, I am involved in helping to launch a virtual law service- www.IndianaVirtualLaw.com. IndianaVirtualLaw has a vision of its intended future. It is becoming the best, online law firm providing a wide range of legal forms, documents and other “unbundled services” with no fewer than 80 regular clients and 200 annual clients within 12 months. IndianaVirtualLaw intends to be an automated, forms-driven service that is almost entirely online to serve a specific market segment.
I could describe the vision for IndianaVirtualLaw in more detail, but you get the idea. The more specifically I can defined the vision of any company, the more likely I will be able to create a plan to reach that goal- realize the vision.
Once you have a well-defined vision, you can determine the steps required to move your company from where you are today to where you need to be to realize the vision. And this is the stuff of business planning.
With a well-defined vision and business plan, you can chart your conduct, define operations, establish employee roles, etc. You can create operations manuals, policies, procedures, etc. And in those operational tools, you can identify risks and create ways to keep customers happy, safe and out of the courtroom suing you. Remember that HAPPY CUSTOMERS WON’T SUE YOU.
Your company will also be able to manage cash flow better. That reduces disputes with vendors over payments, because you won’t be late on payments.
If cash flow is good, you can avoid doing business with less desirable customers and clients, especially slow-paying customers and clients. Thereby, you can avoid having to hire attorneys or collection agencies to collect your accounts receivable.
If your company is functioning well, you can afford to retain professional advisors, like lawyers, CPA’s, insurance advisors, business coaches, etc. And, this enables you to implement preventative measures that reduce liability risks, rather than the more costly way of reacting to problems.
Etc., etc., etc.
The advantages of setting goals and implementing business plans are enormous. So, I think it is critical that business attorneys understand business to help their clients with goal setting and planning as part of the client’s asset protection plan.
Asset Protection- More on Piercing the Corporate Veil
Posted on | January 13, 2010 | No Comments
A reader recently asked me this: “Can I PERSONALLY receive payments for services rendered through my S-corporation without jeopardizing my “corporate veil” or “corporate shield?”
The corporate veil insults owners and officers of a limited liability entity personally from liability risks of a business.
The answer to the reader’s question is yes, as long as this reader follows the corporate formalities I teach my clients and as long as he doesn’t commit one of the “7 Deadly Corporate Sins.” I listed the seven or eight (depending on how you count them) things you should avoid in order to buttress your corporate structure and not have your “corporate veil” pierced. Indiana corporations and Indiana LLC’s are governed by these rules, and I have generally described Indiana case law and the Indiana Code in these blogs. I give more guidance on this important topic in these other blogs:
http://www.askmattonline.com/uncategorized/piercing-the-corporate-veilshield/
http://www.askmattonline.com/asset-protection/what-is-the-corporate-veil-or-shield/
As to the question asked by my reader, he is going to receive checks in his personal name for work done through his S-corporation. The contract at issue is in writing and is between his S-corporation and another company. That’s a very good thing for my client, as it helps to distinguish him from the S-corporation he owns. For reasons not important here, the payments will be mailed as checks to my reader but made payable to him personally. I advised him to deposit the check in his S-corporation’s checking account and to treat the payments as if the payment had gone straight to the S-corporation and not to him personally.
By taking these steps, he will not violate any of the “7 Deadly Corporate Sins” and will avoid the “co-mingling” issue. The payments rightfully belong to his S-corporation, not him personally. So, he is merely depositing payments in the bank account of the rightful owner- his S-corporation. He is actually doing something positive to separate his personal affairs from his business affairs, which buttresses his corporate protection and limited liability. A court should look favorably on what he is doing, if this ever became an issue.
By the way, there is no significance to the fact that this reader owns an S-corporation, as opposed to a C-corporation. I did mention the “S” election status of this particular corporation to make the point the even S-corporations are obligated to follow the rules I described in this and the related blogs. The tax status of an entity should not impact the manner in which the corporate veil is preserved and protected. The same is true for LLC’s, although the formalities for LLC’s are different than they are for corporations. Otherwise, the same rules apply to LLC’s and corporations.
A good small business attorney will help you structure your business affairs in a way that limits your personal risks and protects your personal assets. If you need an Indiana attorney, make sure you hire a lawyer who understands Indiana business law.
___________________________
Matthew A. Griffith is an attorney, business performance coach, mentor and entrepreneur. He coaches, advises and guides business owners, entrepreneurs, inventors, property managers, investors and real estate professionals. Matt has nearly two decades of experience helping businesses grow.
Indiana Lease-Option Laws
Posted on | December 11, 2009 | 1 Comment
A question from one of Matt’s readers-
Matt, we are new members of CIREIA (www.cireia.org). I read your q&a regarding landlords now being required to maintain heat/air etc… even when a lease option is in place. Our question relates to this in that we have a property that needs rehabbed. We have potential buyers who want terms. We were considering doing a 6 month lease with option so they would have time to make the necessary repairs so they can finance the house. I am now concerned that we would be required to fix all the plumbing, electrical, hvac and so on if we go through with the LTO. What are our options? Am I right that if we sell on contract and they default that we would have to foreclose instead of evict? Same with seller financing?
Matt’s answer-
You got it. You understand the law very well. If you are a landlord, you have to honor the statute that requires you provide certain features of housing. I have included that statute in this earlier blog: http://www.askmattonline.com/uncategorized/indianas-implied-warranty-of-habitability/
If you sell by land contract, you risk long delays and unfavorable treatment through the foreclosure and possibly bankruptcy processes.
If you’d like to discuss the matter in detail, please call me for a private consultation.
_______________________________________
Matthew A. Griffith is an attorney, business performance coach, mentor and entrepreneur. He coaches, advises and guides business owners, entrepreneurs, inventors, property managers, investors and real estate professionals. Matt has nearly two decades of experience helping businesses grow.
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