IMAG1702NRS 40 Does Not Limit Lenders’ Right to Sue Homeowners Even When the Note was Discounted on the Secondary Market.

In 2011 the Nevada Legislature passed A.B. 273.  One of the hot topics was how much a lender could sue a borrower for; if that lender purchased the note from a previous lender at a discounted price.  The discussion of the day (back in the summer of ’11) was that the current lender (who bought the note from a prior lender), pursuing the borrower was capped at the amount the suing bank paid to take over the loan. This seemed to be a protection for borrowers. There were numerous cases in the Nevada District System (Trial Level) that ruled in this way, in favor of the borrower, enforcing a cap. Basically the borrower was held to only be liable for what the current lender paid to buy the discounted note, which could be pennies on the dollar.

On December 24, 2014 the Nevada Supreme Court ruled that the language, ‘limited to the amount of the consideration paid by the bank,’ does not speak to the amount a bank or investor pays to buy the note, removing the cap. So, if bank 1 lends $400,000 and sells the note for pennies, say for $10,000 to bank 2, bank 2 can recoup the entire value of money lent or $400,000.  Many District Court cases were ruling that the deficiency was capped at the amount bank 2 paid to take over the loan.  No more.

The Supreme Court of Nevada stated:

“We therefore hold that NRS 40.451 does not in and of itself set an assignor-assignee, consideration-based limit on FFB’s recovery against respondents.”  First Fin. Bank v. Lane  339 P.3d 1289, 1294 (Nev.,2014) 

OTHER POSTS ON DEBT

Income Taxes & Foreclosure/Short Sales 2014 Update (12.17.2014)

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

OTHER SHORT SALE POSTS

7 Tips for Short Sale

Addendum to Short Sale Listing 1.26.2010

Advance Fees Continued and the FTC 1.6.2011

Advance Fees – Short Sales – FTC II 5.4.2011

Charging for negotiating short sales/Negotiators 10.1.2010

Deficiency Judgments Nevada 4.27.2007

Foreclosure and the One Action Rule in Nevada 4.10.2007

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales 12.21.2007

IRS PUBLICATIONS shortsales/foreclosures:

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..) 3.23.2012

Lender Short Sale Approval Addendum

Nevada Home Owner’s Bill of Rights (Foreclosure/Short Sale/Judicial Foreclosure)

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale 4.20.2007

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods 10.5.2012

Short Sale – “Dual Tracking” and the Homeowner’s Bill of Rights in Nevada May 2013

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Questions? email me darren@dwelshlaw.com

Short Sale Tax Issues 2014Tax Exclusion on Short Sales, extended to end of 2014. As in two weeks!

My original post on this matter is here: Income Taxes & Foreclosures/Shortsales 12.21.2007.

See also January 2013’s, Income Taxes & Foreclosure/Short Sales 2013 Update

As you know the tax code had an “Exclusion from gross income of discharge of qualified principal residence indebtedness (Sec. 108)”

…in other words many home owners were not taxed for 1099C income received as a result of foreclosure/short sale.  This exclusion expired 12.31.2103, well, it has been reinstated and extended to 12.31.2014. Good news for the short sale market.

UPDATE 12.24.2014 - Many questions as to when a real estate transaction must close. It must close in the year of 2014 to take advantage of this tax break.   But see these other posts from the I.R.S. which are helpful for non-owner occupied short sale/foreclosure tax concerns.

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

OTHER SHORT SALE POSTS

7 Tips for Short Sale

Addendum to Short Sale Listing 1.26.2010

Advance Fees Continued and the FTC 1.6.2011

Advance Fees – Short Sales – FTC II 5.4.2011

Charging for negotiating short sales/Negotiators 10.1.2010

Deficiency Judgments Nevada 4.27.2007

Foreclosure and the One Action Rule in Nevada 4.10.2007

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales 12.21.2007

IRS PUBLICATIONS shortsales/foreclosures:

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..) 3.23.2012

Lender Short Sale Approval Addendum

Nevada Home Owner’s Bill of Rights (Foreclosure/Short Sale/Judicial Foreclosure)

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale 4.20.2007

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods 10.5.2012

Short Sale – “Dual Tracking” and the Homeowner’s Bill of Rights in Nevada May 2013

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Questions? email me darren@dwelshlaw.com

Help keep a strong focus on REALTOR® Safety throughout the year by sharing these safety tips with others.

Pool Pump 2014

11 Tips for Holding a Safe Open House

  1. If possible, always try to have at least one other person working with you at the open house.
  2. Check your cell phone’s strength and signal prior to the open house. Have emergency numbers programmed on speed dial.
  3. Recommend that colleagues use a covert emergency communications device.
  4. Upon entering a house for the first time, check all rooms and determine several “escape” routes. Make sure all deadbolt locks are unlocked to facilitate a faster escape.
  5. Make sure that if you were to escape by the back door, you could escape from the backyard. Frequently, high fences surround yards that contain swimming pools or hot tubs.
  6. Have all open house visitors sign in. Ask for full name, address, phone number and email.
  7. When showing the house, always walk behind the prospect. Direct them; don’t lead them. Say, for example, “The kitchen is on your left,” and gesture for them to go ahead of you.
  8. Avoid attics, basements, and getting trapped in small rooms.
  9. Notify someone in your office, your answering service, a friend or a relative that you will be calling in every hour on the hour. And if you don’t call, they are to call you.
  10. Inform a neighbor that you will be showing the house and ask if he or she would keep an eye and ear open for anything out of the ordinary.
  11. Don’t assume that everyone has left the premises at the end of an open house. Check all of the rooms and the backyard prior to locking the doors. Be prepared to defend yourself, if necessary.

(Sources: Washington Real Estate Safety Council; City of Mesa, Arizona; Nevada County Board of REALTORS®; Georgia Real Estate Commission; Sponsor)

Stiletto by Secure Couture is a sponsor of Realtor Safety USA and is also partnering with the NCDSV to raise funds to provide consulting, training, and advocacy directed to improving women’s safety. Their work will also provide subsidized Stiletto personal security products and services to women’s shelters, women on campus, K-12 teachers, and others at risk.

Stay Safe,

Realtor Safety USA
—–
All tips are taken from NAR’s REALTOR® Safety Resource Kit. See www.REALTOR.org/Safety for more information on the important topic of REALTOR® safety.

IMAG0516_1_1[1]

There are now Four (4) Elements to Constructive Eviction in Nevada for Commercial Leases.

First, the landlord must either act or fail to act. Yee v. Weiss, 110 Nev. 657, 660, 877 P.2d 510, 512 (1994).
Second, the landlord’s action or inaction must render “the whole or a substantial part of the premises unfit for occupancy for the purpose for which it was leased.” Id.
Third, the tenant must actually vacate the premises within a reasonable time. Schultz v. Provenzano, 69 Nev. 324, 328, 251 P.2d 294, 296 (1952).
Fourth, a commercial tenant alleging that it was constructively evicted must show, in addition to the three elements stated in Yee and Schultz, that it provided the landlord notice of and a reasonable opportunity to cure the defect. See, e.g., Home Rentals Corp., 602 N.E.2d at 863.

Supreme Court of Nevada.

MASON–MCDUFFIE REAL ESTATE, INC., A Nevada Corporation d/b/a Prudential Nevada Realty, Appellant, v. VILLA FIORE DEVELOPMENT, LLC, A Nevada Limited Liability Company, Respondent.

No. 61233.

Decided: October 2, 2014

– See more at: http://caselaw.findlaw.com/nv-supreme-court/1679919.html#sthash.GFdjLDVk.dpuf

IMG_0919

Golfing with my dad on his 75th birthday

The Nevada “Residential Disclosure Guide” is amended.  It can be viewed on line by clicking here. Changes in the current revision of the booklet pertain to the Common-interest Communities and Condominium Hotels disclosures.  Pay  special attention to Statement of Demand. (see below). 

Information regarding the Statement of Demand requirement legislated in 2013 was added and some of the original language explaining about common-interest communities disclosures generally and resale packages drafted back in 2005-06 was reworked.  All other disclosure information remains unchanged.

Major Changes:

SECTION – Common-Interest Communities and Condominium Hotels

OLD Language- When is it due?

The statement must be delivered to the buyer not later than the date the offer becomes binding on the purchaser

NEW  Language.

When is it due?

In a transaction requiring a public offering statement (further detailed below), the information statement is part of the public offering statement and is due no later than the date an offer to purchase becomes binding on the buyer.  If the unit has not been inspected by the buyer, the buyer will have 5 calendar days to cancel the contract from the date of execution.

In a resale transaction, the information statement is part of the resale package.  A buyer has 5 calendar days to cancel the contract after receipt of the resale package.

It is good practice to provide the information statement no later than 5 days before the contract becomes binding on the buyer in any type of transaction.

SECTION – Public Offering Statement

NEW  (additional) Language

If the property is a new unit in a common-interest community or a condominium hotel, or if the community is subject to any developmental rights, or contains converted buildings or contains units which may be in a time share, or is registered with the Securities and Exchange Commission, the buyer must also be provided with a Public Offering Statement disclosing applicable information, including:

  – development rights of contractors

  – construction schedule

  – description of proposed improvements

  – mechanical & electrical installations

  – initial or special fees

  – number & identity of units in timeshare

Unless the buyer has personally inspected the unit, the buyer may cancel the contract to purchase, by written notice, until midnight of the fifth calendar day following the date of execution of the contract.  This provision must be stated in the contract.

SECTION – Resale Package

NEW (additional) Language:

In transactions involving the resale of a unit previously sold by the developer, a resale package must be provided to the buyer at the expense of the seller.  [NOTE – his is clarifying who pays for the package, which was clarified by Nevada law].

NEW Language: [in bold]

 In addition to the information statement, the resale package includes the following:  thedeclarations, bylaws, rules and regulations, monthly assessments, unpaid assessments of any kind, current operating budget, financial statement, reserve summary, unsatisfied judgments, and status of any pending legal actions.

SECTION – Transfer Fees

NEW Language

Do not pertain to Condominium Hotels

The resale package for a home or unit in a common-interest community must also include a statement of any transfer fees, transaction fees or any other fees associated with the resale of a unit.

SECTION -Unpaid Obligations

NEW Language [in bold]

Do not pertain to Condominium Hotels

Please be advised that while the resale package includes this information, changes to the law in 2013 no longer allow a seller or buyer to rely on this statement as accurate.  The seller must obtain a “statement of demand” which is separate from the resale package.  [Remember…the old language stated the statement was valid for 15 days; this is all removed now, a “statement of demand” (see below) is now separate from the Re-Sale Package]

SECTION – Delivery of Resale Package

NEW Language [in bold]:

Association or hotel unit owner has 10 days to provide the resale package after a request.  If the documents are not provided within 10 days the buyer is not liable for any delinquent assessment.  The resale package should be delivered as soon as practicable.  Unless the buyer has accepted conveyance of the unit, the buyer may cancel the contract to purchase, by written notice, until midnight of the fifth calendar day following receipt of the resale package.  This provision must be stated in the contract.

SECTION – Statement of Demand

NEW (additional language)

Does not pertain to Condominium Hotels

The statement of fees and assessments in the resale package my not be relied upon.  It is necessary for any seller to purchase a statement of demand from the association and provide it to the buyer.  The statement of demand may be requested by the unit owner, his or her representative or the holder of a security interest on the unit.   A statement of demand from the association sets forth the current outstanding assessments, fees and unpaid obligations, including foreclosure fees and attorney’s fees due from the seller.  The statement of demand remains effective for the period specified in the demand which must not be less than 15 business days from the date of delivery by the association to the seller.  The association may provide a corrected statement of demand prior to the sale.  Payment of the amount set forth in the statement of demand constitutes full payment of the amount due from the seller.

 

SEE Also the following forms: click to read -

Form:  Before You Purchase Property in a Common-Interest Community Did You Know… or

Form:  Before You Purchase Property in a Condominium Hotel Did You Know

 

Previous Posts on Common Interest Communities in Nevada

What Can Be Included In a CIC Super Priority Lien in NevadaDecember 18, 2012

Nevada CIC Resale Package Costs IMay 21, 2010

Nevada CIC Resale Package Costs II – June 11, 2010

Nevada Condominium Hotel Disclosure – July 31, 2009

CIC Unpaid Delinquent Dues And How They Affect REO ListingsJuly 2, 2009

Changes to the Nevada CIC Resale PackageJune 10, 2009

Non-Receipt of the Resale Package – May 8, 2009

Rental Restrictions within an AssociationMarch 6, 2009

Nevada CIC Charges for Resale Packages – January 30, 2009

Nevada CIC Addendums – June 13,2008

 

ImageThis is a continuation of my August 24, 2007 entry How Nevada Probate Affects Listings and Sales Contracts.

Listing Property during Probate. Real property can be sold during probate. That is prior to the real estate being transferred to the heir(s).  Per Nevada law 148.110 the personal representative of the estate can enter into an exclusive listing agreement. The commission must not exceed 7% for improved (that’s both residential and commercial) and 10% for raw land.

Warnings to Buyers.  If you are the listing agent, make sure and make a note in the agent to agent remarks that the “sale is subject probate court approval/confirmation hearing.”  Also, counter any offers with this same language.

Buying During Probate.  If you are the buyer’s agent, remember your purchase is subject to Nevada law 148.270 which requires that after the estate representative has agreed to sell, a hearing is held for Court Approval. The hearing is a public auction in open court.  Bids are accepted at this hearing as follows: if the sales price is less than $100,000, competing bids must be at least 5 percent of the sales price, if more than $100,000, then bids $5,000 above the sales price are accepted.  It is best that the buyer be present at the hearing. In the event the buyer’s contract is out bid at the hearing; that first buyer can participate in the bidding process to potentially save their purchase.

Real Estate Sales Commissions.  If the procuring buyer is outbid, the first buyer’s agent is still paid ½ of the real estate commission per Nevada law 148.120.

This is a continuation of my August 24, 2007 entry How Nevada Probate Affects Listings and Sales Contracts

Don’t hesitate to contact me with questions or a referral for a real estate – probate attorney.  darren@dwelshlaw.com

 

 

Darren Welsh (c)

2014 DC Emancipation Day

Did I say it was over March 31, 2012? This is America, it’s never over ‘till it’s over.’

One more shot to claim your Kitec money.

Please go to http://www.plumbingdefect.com/ to read about the limited extension.

“On February 26, 2014, the Court extended all deadlines for owners of Clark County homes that contain Kitec plumbing systems to file claims requesting the available settlement relief. The Court extended the deadlines by three (3) years or until the limited funds are exhausted. The Court also opened up the settlement relief program to individuals who were previously barred either because they failed to act before the applicable deadline, their home was not included in the original Kitec fittings litigation, or they previously opted out of this class action.”

§ PREVIOUS POSTS §

Kitec Claims Deadline Expires March 31, 2012.

Kitec Claims Deadline – March 31, 2012 – Jan 24, 2012

TGIF Legal Tip:  Kitec Litigation Update – July 2, 2010

TGIF Legal Tip: Litigation Affecting Real Estate – June 8, 2007

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