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.
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.
Indiana’s Implied Warranty of Habitability
Posted on | December 8, 2009 | 1 Comment
Question:
“Matt, we have one of your old leases that contains a waiver of implied warranty of habitability. Is that still good law or can we delete that section?”
Matt’s Answer:
Leave that provision in your lease.
The law concerning the implied warranty of habitability has changed over the years and the state of the law is a bit confusing. In a technical sense, there is no implied warranty of habitability in Indiana rental property law. An implied warranty is a contractual concept. The theory is that the courts through common law or a legislative body such as the Indiana General Assembly can impose upon the parties certain contractual terms. A warranty of habitability implies that the landlord guarantees that a house is habitable. If a rental unit is not habitable, the tenant is incapable of living in the property. Under those conditions, the tenant can terminate the lease under what is referred to as a “constructive eviction.” Again, in theory, the landlord has breached a basic contract provision to provide a safe and habitable home. In reality, very few rental properties are uninhabitable.
Over the years, the Indiana General Assembly and even the courts have added duties to a landlord. While those duties have never been classified as a warranty of habitability, the effect is essentially the same.
Back in 1992, the Indiana Court of Appeals issued a well-reasoned opinion called Zimmerman v. Moore. In Zimmerman, the court rejected the existence of an implied warranty of habitability except in those cases where a local housing code established such a warranty. The court did a great job of explaining the law of warranties for new houses versus older homes, and compared homes to other forms of property governed by other rules. In the end, the court held that tenants are adequately protected by traditional tort law, which does pose certain duties on a landlord. Then, in 1999, the Indiana Supreme Court held, in a case called Johnson v. Scandia Associates, that the implied warranty of habitability can arise under certain circumstances. The Supreme Court stated: “Plainly, a warranty of habitability, whether in the sale or lease of residential dwellings, has developed in the common law of Indiana, and its roots are in the law of contract.” The Court then established a vague rule of law suggesting that the warranty might arise by the lease agreement, by the conduct of the landlord and tenant or by local law.
So, now we have to look both at contract law, legislation and traditional tort law as it applies to landlords in order to determine liability risks. In the end, most liability risks will be defined by statute and tort law concepts.
Under traditional tort law, a landlord can be held liable for known defects that the landlord has a duty to repair and fails to repair. The theory is that a landlord can and should repair defects to a property that are brought to the landlord’s attention. Accordingly, if a tenant is aware of a dangerous condition in the property and the landlord is unaware, the landlord would have no duty to make the repair. If the tenant notifies the landlord and the landlord fails to make the repair in a reasonable amount of time, then the landlord could be held liable.
Similarly, where there is a hidden defect or concealed danger known by the landlord and kept hidden from the tenant, the landlord could be held liable. However, what about defects unknown to the landlord and the tenant? Obviously, a landlord cannot make a repair unless the landlord knows the repair is required. Unknown by both the landlord and the tenant, the tenant bears the risk, because the tenant is in possession and control of the property and is in a better position to know about defects. This becomes even more so under the new laws restricting a landlord’s ability to make random inspections without notice. The tenant has more rights to possess and control the rental property today than ever before, which should transfer more responsibility from landlords to tenants.
It is important to understand local law as well as state law. While not technically an implied warranty of habitability, be aware of these state law requirements:
A landlord shall do the following:
(1) Deliver the rental premises to a tenant in compliance with the rental agreement, and in a safe, clean, and habitable condition.
(2) Comply with all health and housing codes applicable to the rental premises.
(3) Make all reasonable efforts to keep common areas of a rental premises in a clean and proper condition.
(4) Provide and maintain the following items in a rental premises in good and safe working condition, if provided on the premises at the time the rental agreement is entered into:
(A) Electrical systems.
(B) Plumbing systems sufficient to accommodate a reasonable supply of hot and cold running water at all times.
(C) Sanitary systems.
(D) Heating, ventilating, and air conditioning systems. A heating system must be sufficient to adequately supply heat at all times.
(E) Elevators, if provided.
(F) Appliances supplied as an inducement to the rental agreement.
In a sense, the law is even more complicated today than prior to the 1992, and 1999 court cases. The waiver you have in my old lease form provides a certain buffer, in the event the courts start creating the implied warranty of habitability. The impact of that warranty could well exceed current tort law concepts. The warranty is contract law, while current landlord duties are rooted mostly in tort law. So, the waiver I wrote might prevent certain claims rooted in contract law. Said more plainly, the waiver could only help you, not harm you. Leave the waiver in place. However, supplement the waiver with other important waivers concerning tort law concepts.
If you have questions or concerns about the topics covered in this article, your business structure, business planning or your real estate investments in general, please feel to contact this author for a consultation.
New Home Buyer Tax Credit- More Q’s & A’s
Posted on | November 30, 2009 | 2 Comments
A Question from one of Matt’s readers-
My girlfriend and I are both planning to purchase my parents house. I know I am not eligible for the tax credit, but unsure about my girlfriend. So can she claim the credit even if she is jointly purchasing the house with someone who is a direct relative of the seller? If she cannot, where is this spelt out? Having a hard time finding information for this scenario.
An answer from Matt’s friend and exceptional loan broker, Mickey Brooks-
Your question is answered by one of several documents available from various associations involved in the residential Real Estate industry and other real estate experts. Here is a question I was previously asked along the same lines and my answer:
Q – What is the definition of a first-time home buyer?
A – The law defines “first-time home buyer” as a buyer who has not owned a principal residence during the three-year period prior to the purchase. For married taxpayers, the law tests the homeownership history of both the home buyer and his/her spouse. So, it is very clear for married buyers.
For example, if you have not owned a home in the past three years but your spouse has owned a principal residence, neither you nor your spouse qualifies for the first-time home buyer tax credit.
However, unmarried joint purchasers may allocate the credit amount to any buyer who qualifies as a first-time buyer, such as may occur if a parent jointly purchases a home with a son or daughter, or an unmarried couple wishes to purchase a home together and one of them has owned a home in the past three years. In the unmarried couple’s case, the partner who has not owned a home in the last three years and is not related to the seller would file as a single taxpayer and have their partner allocate the credit to them.
You can further investigate the proof that your girlfriend is eligible by looking at the IRS form used to request the credit – IRS Form 5405. Here is a link to that document: http://www.irs.gov/pub/irs-pdf/f5405.pdf
Thanks for your question!
Best regards,
Mickey Brooks
Mortgage Planner
JLB Mortgage Group
11769 Whisper Bay Ct
Carmel, IN 46033
317.218.0283 (Office)
317.218.0291 (Fax)
888.249.4003 (Toll Free)
mbrooks@jlbmortgagegroup.com
www.jlbmortgagegroup.com
Land Contracts- Risks for a Buyer
Posted on | November 18, 2009 | 2 Comments
A Question from one of Matt’s readers-
To: griffith@indiana-attorneys.com
Subject: Land contract question:
Hi – I had seen your blog posting on Smaller Indiana – I have a quick land
contract question if you don’t mind – depending on your answer I might need
help executing the sale as well.
Here is my situation – I am selling my current home and because of a
divorce four years ago the house was burdened with debt making the mortgage amount greater than the loan amount – which means that I will be doing a short sale. I have already submitted paper work to my mortgage company so all I need to do now is list with a realtor and get an offer.
In the mean time, I would like to move out to a smaller house so that it is
easier to prepare, show, and sell the current house. My budget will allow
me to do this for about seven months; however, I figure this will in the
long term make it easier to prepare the house for a reasonable offer which
should result in a faster sell. As it turns out, the house that is
available for rent is also available for sale under a contract by the
private owner – the question I have is this: if I were to purchase this
house under contract with a private individual and if I could not sell
current house within seven months and had to walk away from that mortgage
(i.e. deed in lieu of foreclosure) what would I need to know now to prevent
any legal issues?
Thanks,
T.A.
Matt’s answer-
Tony-
If you defaulted on your first home mortgage, you would not qualify for a home purchase mortgage on the new house. If there is a balloon payment under the land contract, and there is no financing contingency under the land contract, you would eventually breach that contract.
Does that answer your question?
- Matthew A. Griffith
________________________________________________
Matthew A. Griffith is a business and real estate attorney, entrepreneur, business success coach and investor. He guides small business owners, management teams, inventors and investors to profitability using both time-tested and innovative business ideas, methods, tools and techniques. For a consultation, contact him via email- griffith@indiana-attorneys.com
Business Plans – THE benefits OF PLANNING
Posted on | November 11, 2009 | 3 Comments
Introduction by Matthew A. Griffith, Esq.
Below is a guest blog by Dan Lacy with Dynasty Business Building- http://dynastybuilder.com/home. Dan is, in a sense, a competitor of mine, in that we both help businesses and their owners avoid risks, maximize opportunities and grow businesses into profitable enterprises through business coaching and plan development. Nonetheless, I have to give credit where credit is due. The blog post below may be the best written summary I have ever read on the benefits of business planning. I can help more clients do more good and avoid more losses through simple planning than can be accomplished through any other business technique or function. In fact, I use business planning as a tool to reduce legal liability risks, as well as to increase profitability. Yet, most small to medium sized business do virtually no planning. Or, they create a plan but fail to implement it. Hopefully, Dan’s summary in this blog post will encourage a few business owners to start taking planning seriously. I hope this helps at least one of you. And thank you Dan Lacy. Good stuff.
Planning Today – Surviving Tomorrow
GUEST BLOG BY DAN LACY
In the first and second chapters of the book of Numbers in the Old Testament, we find a detailed description of the Israelite campsite during their wilderness trek. To the casual reader an outline of the particulars of encampment might seem to be irrelevant minutiae. What is actually presented, however, is a brilliant model for effectively managing the activities of a large organization. Moses and Aaron were responsible for governing almost a million people. By adhering to a carefully structured plan for day-to-day concerns they were able to prepare for long term problems and issues more efficiently.
Of course, what was true for the ancient Israelites is also true today. Planning is the key for any business owner who wishes to build a company that has a solid foundation for future growth and development. Yet, less than 15% of small business owners surveyed admit that they are doing an adequate job of planning for the future of their business. In fact, managers rarely fall short of their real potential for lack of technical competence. Of all the organizations and businesses I have consulted in the last 30 years, the one principle cause for failure is the inability or unwillingness of the executive staff to logically and consistently plan for the allocation of limited resources – labor, money and time – toward all the viable opportunities that exist.
While strategic planning is an integral part of maintaining the growth cycle of a large corporation it is even more critical to smaller organizations because they, typically, lack the resources necessary to absorb the cost of mistakes, errors in judgment, or failure to foresee change. The planning process allows management to evaluate the future where they want to be and how to get there. It helps them establish goals and then gives them a performance standard by which to measure themselves. Better yet, planning allows them a process to identify and resolve problems before they become crises.
Before gathering your staff together – either formally or informally – to begin the planning process for the future growth and development of your company, it’s important to understand exactly what this vital activity will accomplish:
1. Planning formulates the future. The planning process allows the people in your organization to anticipate and, therefore, shape the future.
2. Planning motivates people. Everyone wants to have a part in determining their future. The greater the feeling of ownership each individual has in determining the objectives of the organization, the more committed they will be to making sure those objectives will be achieved.
3. Planning establishes the organizational structure of a company. The planning process will clarify what structural issues need to be resolved in a company. This will determine what organizational model needs to be implemented to address these issues.
4. Planning directs delegation. The key to effective delegation is understanding what assets and liabilities a company has in terms of its human resources. By determining who is best suited to handle a particular role, the entire organization should be able to live up to its maximum potential. (Tim Collins – Good To Great).
5. Planning promotes communications. The planning process affects each division of a company, including the finance, marketing, sales and operations divisions. Thus, for each area of a company to achieve their respective goals, they must cooperate and communicate with divisions that they normally don’t communicate with.
6. Planning fosters the process of monitoring. The planning process establishes standards or goals that an organization must achieve to accomplish their overall objectives. Without a monitoring system, management will not be able to assess how well these goals are being achieved.
Planning is essential for the survival of the company. If the organization does not have the time or manpower to do adequate planning, then the company should utilize outside resources to help them set, monitor and achieve their goals. Time spent on planning is time well spent and money spent on planning is money well spent when the plan is utilized.
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