Here in Texas, even a state district judge can be a man with a hat and no cattle ....
Last month, Travis County Judge Charlie Baird faced off against 20-year-old Felicia Salazar, who admitted to the court that she had failed to properly protect her 19-month-old daughter from the child's father - who had beat the baby, breaking bones and causing other injuries.
Felicia and the baby daddy both had their parental rights to the child terminated, and the little girl was placed in foster care. Meanwhile, the father was sentenced to 15 years in prison.
When it came time for Felicia Salazar to face the music, she stood before Judge Baird with no prior criminal history and an acknowledgement that she'd failed her daughter -- and with her defense attorney, she'd entered into a plea bargain with prosecutors, where she would get 10 years probation. It was time for the Judge to impose conditions upon that probation, and usually judges require things like community service and mental health treatment.
Judge Baird did impose standard conditions to Felicia's probation: she has to perform 100 hours of community service, and she's got to undergo a mental health assessment. But Judge Baird went one further: he ordered Felicia NOT TO HAVE CHILDREN FOR THE NEXT TEN YEARS.
Can a judge really order a woman not to have a child? Really???
Nope. Of course, the Judge thinks so. He's told the media that it's a reasonable condition of her probation. And, there are those who would argue that it's all too often that parents who have had parental rights terminated just repeat the abuse cycle when they bear new offspring. They'd see this as avoiding a tragedy, and applaud Judge Baird's efforts.
They'd be wrong. This just isn't constitutional, period. A trial court judge can't tell someone that they can't have children. It's exceeding his power. Blatantly.
1. A man elected to preside over criminal proceedings doesn't have the authority to tell a 20 year old woman that she can't have a baby at any time, much less until she's 30 years old.
2. Even assuming that somehow this action could be justified, this would still be overreaching in this situation -- the woman has no prior history with criminal authorities or Child Protective Services, and she herself was not the one who committed the violent acts. I believe we can all read between the lines here: she looks to be a woman who cowered before an abusive boyfriend, and was too weak to stop him. What about getting her classes in parenting? life management? individual counseling?
3. How enforcable is this? What if she does get pregnant - is the Judge going to order that she have an abortion, in addition to revoking her probation and sending her to jail? Ridiculous.
Dangerous precedent being set here -- and in Wisconsin.
As much as this sounds like some story out of the annals of Judge Roy Bean, it appears that Felicia may be stuck with Judge Baird's ruling. Her attorney hasn't filed an appeal. Heck, Felicia may be counting her blessings that she's not behind bars, and she's happy enough right now.
If so, Felicia's challenge may come up later -- when she gets pregnant, and some probation officer tries to throw her in jail for violating a condition of her probation. Then, her lawyer will get this arrogant, unconstitutional ruling overthrown -- hopefully.
Why hopefully? Because up in Wisconsin, there sits on the books a case where a father of 10 kids got caught for not paying child support. As a condition of his probation, he was ordered not to father any more children. The Wisconsin Supreme Court upheld that decision.
Criminal Defense is all about Protecting Our Rights
Every single criminal defense attorney in this country gets questioned on almost a daily basis with a version of the same query: 'how can you represent those bad, guilty people who did horrible things to good folk?'
And, every single criminal defense attorney in this country has to remind people on almost a daily basis that those accused clients, in each and every case, are testing the strength of our judicial system -- a system of rights that serves to provide justice and freedom for each and every one of us.
The System of Rights that Protects All of Us is Weaker Today Because of this Decision
Felicia Salazar admitted to not being a good mother. Judge Baird thinks he's doing the right thing by keeping her from becoming a mother again. But, to you and to me, a constitutional right has been disrespected and weakened here and we should all be very concerned about this.
Any time the rights of any single individual are denied, one brick in that system of freedoms we all hold dear falls away.
Source:
Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/09/12/0912salazar.html
Thứ Tư, 29 tháng 10, 2008
Thứ Hai, 27 tháng 10, 2008
Crime News: Brain Scan as Truth Test Sends Woman to Life Imprisonment
Sit down for this one.
This is scary, scary stuff - even for Hallowe'en ... because what has been reported is true, not just some science fiction story or horror movie or boring lab report.
"Experiential knowledge of the crime" - an Automatic Guilt Machine
Technology now exists where some lab worker in a white coat can attach wires to your head, and then decide whether or not you have "experiential knowledge" of a crime -- as in, you really remember doing it -- and if you do, voila -- you're guilty!
That's right. Let's ponder this again: there's a gizmo that is supposed to conclusively know if you're guilty of a crime or not by monitoring your brain waves with wires.
How's this supposed to work?
Well, the guy in the white coat takes an electroencephalogram, or EEG -- in other words, he places electrodes on your head that will measure electrical waves.
You set there, silent, with your eyes shut tight. Wires on your head.
Then, white-coat guy starts reading aloud the details of the crime (and you can bet, this is a script written by the prosecutor). As he reads, and you just set there, the EEG machine is recording all your brain images.
Using this new gizmo software. the brain is said to purportedly "light up" in certain areas that store memories, lighting up when past experiences are recognized.
Oh, and sure, the gizmo software is supposed to be able to clearly, easily, and conclusively be able to determine whether or not your brain is "lighting up" because you witnessed, or saw, something happen, as opposed to whether or not you committed the act yourself.
Right.
I cannot even begin to describe the horrific affront this is to the most basic human rights, much less those constitutional rights like due process .... Heck, we know lie detectors are not accurate. We still have some problems with fingerprint analysis. And, this testing of air in the Casey Anthony case is getting lots of skeptical responses.
But, some machine can not only report that you have a memory of an event, but that you committed a crime, based upon whether or not your brain "lights up" -- this would be hilarously stupid to consider, if it weren't being taken so very seriously.
Surely this isn't being taken seriously, you ask? Wrong.
Over in India, a young woman was accused of poisoning her fiance by putting arsenic in his McDonald's meal. It's apparently understood by everyone that in India "police interrogation" is synonimous with "torture," so when the woman had the choice between the "interrogation" or undergoing this new Gizmo Guilt Test, she chose the brain scan. Who wouldn't?
She claimed she was innocent. She probably hoped science would be her friend in ways that law enforcement would not.
No such luck. The woman purportedly "failed" the brain scan, was found guilty of murder based upon the brain scan, and sentenced to life imprisonment - because of this scary, scary brain scan.
Just think what an overzealous Dallas County prosecutor could do with this thing.
Check out this YouTube video that shows the CNN report on Aditi Sharma's murder conviction and life sentence, ordered by a judge (no jury), based upon a brain scan.
For more information:
International Herald Tribune
http://www.iht.com/articles/2008/09/15/asia/15brainscan.php?page=1
Neuroscience
http://io9.com/5050009/indian-court-accepts-brain-scans-as-evidence-of-murder
This is scary, scary stuff - even for Hallowe'en ... because what has been reported is true, not just some science fiction story or horror movie or boring lab report.
"Experiential knowledge of the crime" - an Automatic Guilt Machine
Technology now exists where some lab worker in a white coat can attach wires to your head, and then decide whether or not you have "experiential knowledge" of a crime -- as in, you really remember doing it -- and if you do, voila -- you're guilty!
That's right. Let's ponder this again: there's a gizmo that is supposed to conclusively know if you're guilty of a crime or not by monitoring your brain waves with wires.
How's this supposed to work?
Well, the guy in the white coat takes an electroencephalogram, or EEG -- in other words, he places electrodes on your head that will measure electrical waves.
You set there, silent, with your eyes shut tight. Wires on your head.
Then, white-coat guy starts reading aloud the details of the crime (and you can bet, this is a script written by the prosecutor). As he reads, and you just set there, the EEG machine is recording all your brain images.
Using this new gizmo software. the brain is said to purportedly "light up" in certain areas that store memories, lighting up when past experiences are recognized.
Oh, and sure, the gizmo software is supposed to be able to clearly, easily, and conclusively be able to determine whether or not your brain is "lighting up" because you witnessed, or saw, something happen, as opposed to whether or not you committed the act yourself.
Right.
I cannot even begin to describe the horrific affront this is to the most basic human rights, much less those constitutional rights like due process .... Heck, we know lie detectors are not accurate. We still have some problems with fingerprint analysis. And, this testing of air in the Casey Anthony case is getting lots of skeptical responses.
But, some machine can not only report that you have a memory of an event, but that you committed a crime, based upon whether or not your brain "lights up" -- this would be hilarously stupid to consider, if it weren't being taken so very seriously.
Surely this isn't being taken seriously, you ask? Wrong.
Over in India, a young woman was accused of poisoning her fiance by putting arsenic in his McDonald's meal. It's apparently understood by everyone that in India "police interrogation" is synonimous with "torture," so when the woman had the choice between the "interrogation" or undergoing this new Gizmo Guilt Test, she chose the brain scan. Who wouldn't?
She claimed she was innocent. She probably hoped science would be her friend in ways that law enforcement would not.
No such luck. The woman purportedly "failed" the brain scan, was found guilty of murder based upon the brain scan, and sentenced to life imprisonment - because of this scary, scary brain scan.
Just think what an overzealous Dallas County prosecutor could do with this thing.
Check out this YouTube video that shows the CNN report on Aditi Sharma's murder conviction and life sentence, ordered by a judge (no jury), based upon a brain scan.
For more information:
International Herald Tribune
http://www.iht.com/articles/2008/09/15/asia/15brainscan.php?page=1
Neuroscience
http://io9.com/5050009/indian-court-accepts-brain-scans-as-evidence-of-murder
Thứ Tư, 22 tháng 10, 2008
Crime News: Now Informers Can Narc Anonymously by Text Message
For criminal defense attorneys in Texas, it's getting closer and closer to Orwell's 1984 every day ....
Have you heard about this one? A Nacogdoches, Texas, company called Anderson Software issued a press release that victoriously announced its introduction of a new product, Tips via Text TM, which will allow anyone, anywhere to send an anonymous tip to an agency, like CrimeStoppers, and have the cops text them back, all without revealing their identity.
Informers Can Text In Their Tips Anonymously Using The New Tips via Text program
CrimeStopper programs are chomping at the bit to get this software for their communities (it assigns an encrypted alias to the tipster's call, so their real identities are not revealed).
Anderson promotes Tips via Text as a way for informers to send in their tips when its "not feasible or safe" to telephone a tip line. CrimeStoppers is particularly excited about the product, predicting it will be "particularly useful for student programs."
Doesn't anyone think about the implications here?
How does this anonymous text messaging impact the rights of you, me, and our teen aged kids -- you know, like our right to privacy and all those civil rights that we are guaranteed under the Constitution??
Ponder this situation: teenager A is mad at teenager B because A's boyfriend has left the party with B, and it's not looking like they're coming back to the soiree. What does A do?
She sends a Tips via Text and with her guaranteed anonymity, reports that the boyfriend is driving drunk. There's a prompt reply and a quick text discussion on the type of car being driven, the road they've taken, a description of the driver.
Remember, there's no human to listen to her giggle as she reports this, or to judge how inebriated she might be....
The police quickly respond and pull over boyfriend on suspicion of drunk driving. Nevermind that the cops never saw anything that would lead them to believe he might be intoxicated -- they act solely on the text-tip and when boyfriend fails the field sobriety test, he's busted.
What Happens to Due Process and Privacy and All Those Other Rights?
In this country, we're supposed to have LIBERTY and JUSTICE ... which means that the government cannot detain us, much less arrest us, without good reason. Cops shouldn't be able to pull someone over for a suspected crime unless those cops actually have their own reason to believe a crime is occurring. Period.
Police power is supposed to be exercised within carefully defined, clear-cut boundaries. This Text Tip Under an Alias messes with that ... and police power can be misused.
Think this won't happen? Think again. It's already been okayed by the California Supreme Court (police acting on anonymous tips without their own verification of a possible crime). They even have signs along the road, encouraging fellow travelers to narc on each other about possible drunk driving.
Imagine the misuse this invites. Imagine. Think of your ex-wife. Think of the disgruntled employee. Think of the cop who's tempted to text himself.
Sources:
Anderson Software
http://www.andersoft.com/default.aspx
Darren Kavinoky's NoCuffs.com
http://www.caexpungementcentral.com/articles/anonymous_tips.htm
Have you heard about this one? A Nacogdoches, Texas, company called Anderson Software issued a press release that victoriously announced its introduction of a new product, Tips via Text TM, which will allow anyone, anywhere to send an anonymous tip to an agency, like CrimeStoppers, and have the cops text them back, all without revealing their identity.
Informers Can Text In Their Tips Anonymously Using The New Tips via Text program
CrimeStopper programs are chomping at the bit to get this software for their communities (it assigns an encrypted alias to the tipster's call, so their real identities are not revealed).
Anderson promotes Tips via Text as a way for informers to send in their tips when its "not feasible or safe" to telephone a tip line. CrimeStoppers is particularly excited about the product, predicting it will be "particularly useful for student programs."
Doesn't anyone think about the implications here?
How does this anonymous text messaging impact the rights of you, me, and our teen aged kids -- you know, like our right to privacy and all those civil rights that we are guaranteed under the Constitution??
Ponder this situation: teenager A is mad at teenager B because A's boyfriend has left the party with B, and it's not looking like they're coming back to the soiree. What does A do?
She sends a Tips via Text and with her guaranteed anonymity, reports that the boyfriend is driving drunk. There's a prompt reply and a quick text discussion on the type of car being driven, the road they've taken, a description of the driver.
Remember, there's no human to listen to her giggle as she reports this, or to judge how inebriated she might be....
The police quickly respond and pull over boyfriend on suspicion of drunk driving. Nevermind that the cops never saw anything that would lead them to believe he might be intoxicated -- they act solely on the text-tip and when boyfriend fails the field sobriety test, he's busted.
What Happens to Due Process and Privacy and All Those Other Rights?
In this country, we're supposed to have LIBERTY and JUSTICE ... which means that the government cannot detain us, much less arrest us, without good reason. Cops shouldn't be able to pull someone over for a suspected crime unless those cops actually have their own reason to believe a crime is occurring. Period.
Police power is supposed to be exercised within carefully defined, clear-cut boundaries. This Text Tip Under an Alias messes with that ... and police power can be misused.
Think this won't happen? Think again. It's already been okayed by the California Supreme Court (police acting on anonymous tips without their own verification of a possible crime). They even have signs along the road, encouraging fellow travelers to narc on each other about possible drunk driving.
Imagine the misuse this invites. Imagine. Think of your ex-wife. Think of the disgruntled employee. Think of the cop who's tempted to text himself.
Sources:
Anderson Software
http://www.andersoft.com/default.aspx
Darren Kavinoky's NoCuffs.com
http://www.caexpungementcentral.com/articles/anonymous_tips.htm
Thứ Hai, 20 tháng 10, 2008
COP WATCH: New Online Website for Those Most Wanted of Criminals, the Unpaid Traffic Tickets (But Don't Trust the Site, It Warns)
Have you seen this yet?
Dallas County has actually spent the time and money to publish a website (click here to check it out) that lists (with photos!) the most notorious, heinous wanted men and women in the county who ... wait for it ... haven't paid their traffic tickets. Yes. Not kidding.
And, it gets better.
The site itself admits that the information shown may not be "current information for any legal purpose." The people may not really be wanted. The amounts shown may not be accurate. You get the idea.
And, finally -- the website itself warns that no action should be taken based upon anything shown on the site.
What You've Really Got Here
So, you've got U.S. citizens (remember those "innocent until proven guilty" folk?) with their photos posted online for anyone and their neighbor (including their mother-in-law) to see, under a bold headline in red type (RED) that says really great stuff like "MOST WANTED," along with lots of disclaimer language that says "well, maybe ... but don't trust anything you read here and above all, don't rely on it."
I could not make this stuff up.
Dallas County has actually spent the time and money to publish a website (click here to check it out) that lists (with photos!) the most notorious, heinous wanted men and women in the county who ... wait for it ... haven't paid their traffic tickets. Yes. Not kidding.
And, it gets better.
The site itself admits that the information shown may not be "current information for any legal purpose." The people may not really be wanted. The amounts shown may not be accurate. You get the idea.
And, finally -- the website itself warns that no action should be taken based upon anything shown on the site.
What You've Really Got Here
So, you've got U.S. citizens (remember those "innocent until proven guilty" folk?) with their photos posted online for anyone and their neighbor (including their mother-in-law) to see, under a bold headline in red type (RED) that says really great stuff like "MOST WANTED," along with lots of disclaimer language that says "well, maybe ... but don't trust anything you read here and above all, don't rely on it."
I could not make this stuff up.
Thứ Bảy, 18 tháng 10, 2008
Full Text of Vasilas Opinions - Oct 2008 Memorandum Opinion by Judge Sandoval and March 2006 Opinion of Texas Court of Criminal Appeals
For those interested in reading the details in the Vasilas case, including the memorandum opinion just released by Judge Sandoval this month (finding Jim Vasilas "not guilty"), here they are (click on each link):
October 6, 2008, Memorandum Opinion of Judge Charles Sandoval, Cause No. 380-82535-03 in the 380th Judicial District Court of Collin County, styled State of Texas v. James Vasilas; and
March 22, 2006 Opinion (unanimous) of the Texas Court of Criminal Appeals, Cause No. PD-0351-05 and styled State of Texas, Appellant, v. James Vasilas, Appellee on petition for discretionary review from the Fifth Court of Appeals of Collin County
In case you'd like to read the underlying section of the Texas Penal Code, check it out here:
Texas Penal Code 37.10(a)(5)
Texas Penal Code 37.01 (Definitions)
Note the text of the following Penal Code definitions:
(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.
(2) "Governmental record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; ....
October 6, 2008, Memorandum Opinion of Judge Charles Sandoval, Cause No. 380-82535-03 in the 380th Judicial District Court of Collin County, styled State of Texas v. James Vasilas; and
March 22, 2006 Opinion (unanimous) of the Texas Court of Criminal Appeals, Cause No. PD-0351-05 and styled State of Texas, Appellant, v. James Vasilas, Appellee on petition for discretionary review from the Fifth Court of Appeals of Collin County
In case you'd like to read the underlying section of the Texas Penal Code, check it out here:
Texas Penal Code 37.10(a)(5)
Texas Penal Code 37.01 (Definitions)
Note the text of the following Penal Code definitions:
(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.
(2) "Governmental record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; ....
Thứ Tư, 15 tháng 10, 2008
Good Lawyer Needed...and Free Legal Forms Won't Cut It!
For grins and giggles, I did a Google search for "free legal forms" this evening. I was amazed to see 6,610,000 results returned in 0.13 seconds. Yes, six and one-half million hits! Heck, with that type of mass availability of documents for every conceivable transaction, who needs a lawyer?
There are literally millions of links to millions of sites offering everything from Wind Leases to Partnership Agreements, to complex Mortgage Loan Agreements...and they're all "free" for the taking. As a lawyer who routinely drafts Leases, deeds, powers of attorney, purchase and sale contracts, by-laws and other legal documents, I was more than a little disconcerted. Am I being obsolesced by the Internet -- just like travel agents and newspapers? What will I do? Is it finally time to pursue my lifelong dream of working as a Texas Game Warden? Do I need to trade in the ties for sunscreen and ballcaps?
Alas, after just a few minutes of following those links, I breathed a sigh of relief -- and maybe even slight disappointment. Turns out that those prophetic lyrics from Jimmy Buffett's "A Pirate Looks at 40" ("My occupational hazard being my occupation's just not around") weren't quite appropriate for me. In fact, I was instantly assured that the Free, EZ, Lawyer-in-a-box, Do-it-yourself, file it yourself, skip-law-school-and-the-bar- exam, forms are hardly any competition at all. Guess my time as a guardian of Texas' wildlife and natural resources will have to wait....
The internet has been called the "information superhighway." Its appeal has largely been the vast amount of information made available on it. All just a click away (better than being a "heartbeat away" I suppose). These days, you can find anything and everything on-line, much of which is yours with a simple click on the "download" button. But what are you really getting when you obtain free legal forms for use in your business, investments, and affairs? Far too often the truth is that you are getting exactly what you're paying for on a free site!
Legal forms have far reaching implications. They are significant and important. Lawyers do not give them out for free because they are powerful, and like Spiderman taught us all ..."great power requires great responsibility." Pre-packaged, and particularly free legal forms will often hurt you in the long run. Many times, they will end up costing much more than what you save by not hiring a lawyer to draft your legal documents based upon a thorough understanding of the particulars of your circumstances.
Here are a few basic and very serious concerns about pre-packaged Legal Forms.
1. The pre-packaged legal forms are designed very generally so that they enjoy broad applicability to large group of persons (the public, generally). They are not crafted to apply to your situation and facts. I call this "shotgun blast" law because the people pushing the generic forms get lots of "bang" from the bucks they spent posting the form documents. However, your important legal matters need a skilled rifle sniper who has intimate familiarity with your circumstances. Casting a bait net rarely yields a prize fish, and mass-appeal legal documents may very well miss important nuances of your situation!
2. Not all states or jurisdictions apply the same laws. For example, certain lease, contract and interest provisions which are perfectly legal and quite common in Pennsylvania may be frowned upon or perhaps even illegal in Texas. With free legal forms, you have no way of verifying which State the forms were drafted in, or which State's laws they track. The vast majority of disputes and transactions affected by legal forms are governed by state law. What is legal in New York or Louisiana may be illegal in Texas, and could void a contract that you need need to be valid. Without a lawyer's input, you have no way of verifying the applicability or legality of the provisions of a pre-packaged legal form.
3. The source of the free legal documents is often unknown. Anybody can upload to the internet a "form" or document they have crafted. I wouldn't be any less comfortable having an anonymous person draft my legal documents than I would having my mechanic review my X-Rays. What are the qualifications of the people posting the free documents? How do they make their money? Are there really 6.6 million benevolent souls who are also knowledgable in the law and capable of posting free databases to Google? I think not....but neither of us will ever know.
In sum, free, downloadable legal forms are simply not trustworthy or reliable. They are generally not worth the paper they are printed on, or the pixels they consume on your computer monitor. The money you save by not paying a lawyer to draft and review your legal documents could be spent several times over if your flimsy legal document ends up causing you to get sued...or worse. I know you'd rather pay anything than legal fees. I understand that many people think lawyers charge too much. Please understand, we lawyers generally charge a rate for the value of our services. Our time is our stock in trade. At my law firm, we spend that time in an effort to give you confidence and peace of mind. Surely that's worth a few hundred dollars an hour? In the end, it may save the several thousand we will be forced to charge to defend an invalid legal document.
Trey Wilson is a real estate, construction, water and general litigation attorney in San Antonio, with a Texas-wide law practice. He routinely drafts real estate and other legal documents including deeds, partnership agreements, Leases, Purcase and Sale Contracts, Powers of Attorney, Mortgage Agreements, and Promissory Notes. Though he dreams of being a Texas Game Warden, he has determined that the internet has not obsolesced his line of work, and that he continues to provide a very valuable service to his clients (apologies to Mr. Jimmy Buffett). For that reason, he'll buy more ties, and hold-off on memorizing the Texas Parks & Wildlife Code...for now. Trey Wilson may be reached at 210/223-4100 or www.sa-law.com
There are literally millions of links to millions of sites offering everything from Wind Leases to Partnership Agreements, to complex Mortgage Loan Agreements...and they're all "free" for the taking. As a lawyer who routinely drafts Leases, deeds, powers of attorney, purchase and sale contracts, by-laws and other legal documents, I was more than a little disconcerted. Am I being obsolesced by the Internet -- just like travel agents and newspapers? What will I do? Is it finally time to pursue my lifelong dream of working as a Texas Game Warden? Do I need to trade in the ties for sunscreen and ballcaps?
Alas, after just a few minutes of following those links, I breathed a sigh of relief -- and maybe even slight disappointment. Turns out that those prophetic lyrics from Jimmy Buffett's "A Pirate Looks at 40" ("My occupational hazard being my occupation's just not around") weren't quite appropriate for me. In fact, I was instantly assured that the Free, EZ, Lawyer-in-a-box, Do-it-yourself, file it yourself, skip-law-school-and-the-bar- exam, forms are hardly any competition at all. Guess my time as a guardian of Texas' wildlife and natural resources will have to wait....
The internet has been called the "information superhighway." Its appeal has largely been the vast amount of information made available on it. All just a click away (better than being a "heartbeat away" I suppose). These days, you can find anything and everything on-line, much of which is yours with a simple click on the "download" button. But what are you really getting when you obtain free legal forms for use in your business, investments, and affairs? Far too often the truth is that you are getting exactly what you're paying for on a free site!
Legal forms have far reaching implications. They are significant and important. Lawyers do not give them out for free because they are powerful, and like Spiderman taught us all ..."great power requires great responsibility." Pre-packaged, and particularly free legal forms will often hurt you in the long run. Many times, they will end up costing much more than what you save by not hiring a lawyer to draft your legal documents based upon a thorough understanding of the particulars of your circumstances.
Here are a few basic and very serious concerns about pre-packaged Legal Forms.
1. The pre-packaged legal forms are designed very generally so that they enjoy broad applicability to large group of persons (the public, generally). They are not crafted to apply to your situation and facts. I call this "shotgun blast" law because the people pushing the generic forms get lots of "bang" from the bucks they spent posting the form documents. However, your important legal matters need a skilled rifle sniper who has intimate familiarity with your circumstances. Casting a bait net rarely yields a prize fish, and mass-appeal legal documents may very well miss important nuances of your situation!
2. Not all states or jurisdictions apply the same laws. For example, certain lease, contract and interest provisions which are perfectly legal and quite common in Pennsylvania may be frowned upon or perhaps even illegal in Texas. With free legal forms, you have no way of verifying which State the forms were drafted in, or which State's laws they track. The vast majority of disputes and transactions affected by legal forms are governed by state law. What is legal in New York or Louisiana may be illegal in Texas, and could void a contract that you need need to be valid. Without a lawyer's input, you have no way of verifying the applicability or legality of the provisions of a pre-packaged legal form.
3. The source of the free legal documents is often unknown. Anybody can upload to the internet a "form" or document they have crafted. I wouldn't be any less comfortable having an anonymous person draft my legal documents than I would having my mechanic review my X-Rays. What are the qualifications of the people posting the free documents? How do they make their money? Are there really 6.6 million benevolent souls who are also knowledgable in the law and capable of posting free databases to Google? I think not....but neither of us will ever know.
In sum, free, downloadable legal forms are simply not trustworthy or reliable. They are generally not worth the paper they are printed on, or the pixels they consume on your computer monitor. The money you save by not paying a lawyer to draft and review your legal documents could be spent several times over if your flimsy legal document ends up causing you to get sued...or worse. I know you'd rather pay anything than legal fees. I understand that many people think lawyers charge too much. Please understand, we lawyers generally charge a rate for the value of our services. Our time is our stock in trade. At my law firm, we spend that time in an effort to give you confidence and peace of mind. Surely that's worth a few hundred dollars an hour? In the end, it may save the several thousand we will be forced to charge to defend an invalid legal document.
Trey Wilson is a real estate, construction, water and general litigation attorney in San Antonio, with a Texas-wide law practice. He routinely drafts real estate and other legal documents including deeds, partnership agreements, Leases, Purcase and Sale Contracts, Powers of Attorney, Mortgage Agreements, and Promissory Notes. Though he dreams of being a Texas Game Warden, he has determined that the internet has not obsolesced his line of work, and that he continues to provide a very valuable service to his clients (apologies to Mr. Jimmy Buffett). For that reason, he'll buy more ties, and hold-off on memorizing the Texas Parks & Wildlife Code...for now. Trey Wilson may be reached at 210/223-4100 or www.sa-law.com
District Judge Charles Sandoval's Memo Opinion in the Vasilas Case: Jim Vasilas Not Guilty, But the Story's Not Over
Along with almost every other attorney in the State of Texas, I've been following James Vasilas' case as its traveled the appellate highways (e.g., my May 1, 2006 post). Now, Judge Charles Sandoval has issued a memorandum opinion from his bench on the 380th Judicial District Court of Collin County that should be a welcomed relief not only to Brother Vasilas, but to some degree to lawyers everywhere.
For those of you who aren't well aquainted with this case, here's a brief wrap-up:
James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.
All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.
Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)
An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.
At the get-go, the judge quashed the indictment. The DA appealled and the games began.
In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.
Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.
Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.
Then comes Judge Sandoval ....
On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:
"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.
"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.
"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"
The Bottom Line
It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.
Congratulations, Jim.
For those of you who aren't well aquainted with this case, here's a brief wrap-up:
James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.
All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.
Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)
An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.
At the get-go, the judge quashed the indictment. The DA appealled and the games began.
In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.
Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.
Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.
Then comes Judge Sandoval ....
On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:
"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.
"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.
"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"
The Bottom Line
It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.
Congratulations, Jim.
Thứ Hai, 13 tháng 10, 2008
DA Watch: Dallas County Prosecutors Routinely Convicted Innocent Men, Using Eyewitness Testimony Known to Be Faulty
Let's all stop for a minute and appreciate the efforts of the Dallas Morning News -- who released a report yesterday that summarized their 8 month investigation into 19 Dallas County convictions that were later overturned as being clearly WRONG because of DNA evidence.
These reporters asked the question -- why didn't the investigation or the prosecution reveal that an innocent man was being accused?
Journalists at the Dallas Morning News looked at the complete files of these 19 cases, all overturned because DNA has revealed that an innocent man was convicted of the crime. And these were serious crimes -- rape, murder.
What they found isn't pretty.
According to their own published report, in all but ONE of these wrongful convictions, the prosecutors chose to build their case on eyewitness testimony.
This, despite the longstanding and common knowledge among prosecutors and defense attorneys alike - as well as academics and researchers - that eyewitness accounts are simply unreliable.
You just can't trust eyewitness accounts of what happened. They're rarely accurate. Everyone knows this.
Which makes what they found all the more shocking ....
From the Dallas Morning News, in part:
1. Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the cases were all white, as were many of the juries of the 1980s.
2. Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.
3. Prosecutors frequently went to trial with single-witness identifications and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.
4. Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court.
Here's the thing:
You just don't take a man's life, or his freedom, on a case that is dependent upon eyewitness testimony for a conviction. And, yet, the Dallas County Prosecutors thought this was a fine thing to do -- and did it for years, apparently.
(They're not alone. According to the Dallas County Morning News investigation, misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989. Looks like prosecutors across the country would rather get another win on their resumes than avoid trying a case that doesn't have much evidence except for eyewitness testimony.)
Thank you, Dallas Morning News. Specifically, thank you DMN reporters Steve McGonigle and Jennifer Emily. Thank you.
Sources:
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/politics/local/stories/DN-DNAlineups_05pro.ART.State.Edition2.4a899db.html
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/politics/local/stories/DN-DNAdetails_05pro.ART.State.Edition1.4a87484.html
Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6053228.html
New York Times
http://www.nytimes.com/2008/10/12/us/12dna.html?ref=us
These reporters asked the question -- why didn't the investigation or the prosecution reveal that an innocent man was being accused?
Journalists at the Dallas Morning News looked at the complete files of these 19 cases, all overturned because DNA has revealed that an innocent man was convicted of the crime. And these were serious crimes -- rape, murder.
What they found isn't pretty.
According to their own published report, in all but ONE of these wrongful convictions, the prosecutors chose to build their case on eyewitness testimony.
This, despite the longstanding and common knowledge among prosecutors and defense attorneys alike - as well as academics and researchers - that eyewitness accounts are simply unreliable.
You just can't trust eyewitness accounts of what happened. They're rarely accurate. Everyone knows this.
Which makes what they found all the more shocking ....
From the Dallas Morning News, in part:
1. Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the cases were all white, as were many of the juries of the 1980s.
2. Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.
3. Prosecutors frequently went to trial with single-witness identifications and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.
4. Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court.
Here's the thing:
You just don't take a man's life, or his freedom, on a case that is dependent upon eyewitness testimony for a conviction. And, yet, the Dallas County Prosecutors thought this was a fine thing to do -- and did it for years, apparently.
(They're not alone. According to the Dallas County Morning News investigation, misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989. Looks like prosecutors across the country would rather get another win on their resumes than avoid trying a case that doesn't have much evidence except for eyewitness testimony.)
Thank you, Dallas Morning News. Specifically, thank you DMN reporters Steve McGonigle and Jennifer Emily. Thank you.
Sources:
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/politics/local/stories/DN-DNAlineups_05pro.ART.State.Edition2.4a899db.html
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/politics/local/stories/DN-DNAdetails_05pro.ART.State.Edition1.4a87484.html
Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6053228.html
New York Times
http://www.nytimes.com/2008/10/12/us/12dna.html?ref=us
Chủ Nhật, 12 tháng 10, 2008
Credit crunch squeezes Central Texas home starts -- From the Austin American Statesman
By now, rows of houses should have replaced the bales of hay on the 700-acre Goodnight Ranch 10 miles south of downtown Austin. But more than two years after the city approved the 3,500-home development, construction has yet to disturb the pasture and farm land just east of Interstate 35 and Slaughter Lane.
Two years ago, developer Terry Mitchell said eight large homebuilders had expressed interest in taking 200 to 300 lots apiece at Goodnight Ranch. They offered between $5 million and $7 million in earnest money, which would help pay for $8 million worth of water and wastewater lines and other improvements. "In late 2007, I surveyed those eight builders, and they collectively couldn't come up to $500,000," Mitchell said. The project is on hold for a year.
Tight credit for builders and buyers alike, slowing job growth and the darkening clouds over the economy have dramatically changed the new-home landscape in Central Texas. Two years ago, builders started a record 16,000 homes in Central Texas. This year, they're on track to build slightly more than 10,000, based on new figures from Residential Strategies Inc.
It's not over yet: Housing experts say the slowdown could continue to deepen for at least another year, until the mortgage and financial markets recover. Short term, that means some good deals for buyers as builders pile on incentives to sell off their inventory before the end of the year.
One result of the builder pullback is that Central Texas doesn't have a glut of unsold new homes that has driven down prices, as is the case in many other cities. At the current sales rate, it would take 6.3 months to sell the current supply, compared with almost 11 months nationally.
The local median price for new homes in the third quarter was $210,870, almost unchanged from a year earlier, according to Residential Strategies.
"We've been impacted, but we're not suffering a hangover that a lot of those other markets are suffering from," said Derrick Jones, a former marketing executive for homebuilders who now owns Austin City Living, a real estate brokerage. Still, he said, builders are offering concessions ranging from free upgrades for buyers making a full-price offer to as much as $100,000 off on an $800,000 home. Jones said the incentives will start easing as the year comes to a close but won't go away altogether until the market rebounds.
Mortgage money remains tight, with some lenders requiring up to 20 percent down — a sharp contrast to the zero-down loans that proliferated just two years ago, Jones said. "I think the lenders are more receptive to making loans here than they would be in some other more depressed parts of the country," he said. But as for 100 percent financing, "it's really just not there any more."
Commercial capital drying up
The credit situation is much more severe for builders and developers. Money to buy land for future subdivisions became scarce this summer and has all but dried up in recent weeks.
"It's extremely difficult to get money," said Bob Wunsch, chief executive of Austin-based Waterstone Development, a longtime Williamson County developer. "You have to have very good builders and a very good piece of land, or I doubt you're going to get money in this market."
National, publicly traded companies, which account for almost 60 percent of homebuilding activity in Central Texas, have been especially hard hit by the credit contraction. Last year, Dallas-based Centex Homes signed a contract to buy 450 acres of the Pearson Ranch in Williamson County, planning a $275 million, 1,400-home subdivision, which would have been its biggest project ever in Central Texas. Several months later, it canceled the deal as the housing downturn deepened.
In late December, D.R. Horton pulled out of the Headwaters at Barton Creek, a proposed 1,000-home development where it had purchased options on lots.
The builders' retreat has some real estate observers questioning whether the stage is being set for a housing shortage, at least in some areas, once the economy rebounds.
It takes three years, sometimes longer, to plan and build a subdivision, Mitchell said. But developers are reluctant to spend the money to prepare land until they're confident builders will be ready to buy lots. "If you make the assumption that the market is going to grow someday in the future, we're going to have a (lot) shortage," Mitchell said. "We are a manufacturing business with a three-year cycle, so when you turn off the plant, you don't have houses in two months" once you restart it. "It's going to be awhile."
However, because builders slammed on the brakes so quickly once the downturn started, there is an oversupply of lots ready to build on: more than 31,000, up from about 27,000 a year ago. Most of the excess is in outlying areas, including west of Lake Travis, where there's an 85.8-month supply. Far Southeast Austin, near Bastrop, has more than a 90-month supply.
With scant new development in the pipeline, the overall supply will be absorbed in 2½ to three years at current demand levels, predicts Mark Sprague, the Austin partner for Residential Strategies.
But forecasting the future is clouded by the huge uncertainties about the economy and the spreading credit crisis. "In light of the seriousness of the issues at hand regarding the global financial markets, it is extremely difficult to gauge the extent of the slowdown in the local housing market over the next year or so," said Eldon Rude, the Austin director of Metrostudy, which tracks and forecasts the housing market. "Any forward view of the market must assume that the current credit crisis will be resolved in the coming quarters."
Rude thinks new-home prices over the next year or so will be flat at best. "We're going to have less demand for housing over the next year than we have in years past," he said.
Sprague said if current sales trends stay steady for the foreseeable future, the new-home market should be close to bottoming out. The wild card, he said, is "the stabilization of Wall Street and the outcome of the financial bailout plan." "With the uncertainty of the credit markets and the increased prospects for a national recession, there continues to be a chance for further market erosion," Sprague said.
Austin has several factors in its favor. Job growth has slowed significantly in the past year but remains about 2 percent, compared with heavy job losses nationally.
"We continue to have high-paying jobs move here compared to other markets," Sprague said, citing the money management firm Dimensional Fund Advisors as an example. The firm moved from California to Austin in the past year, occupying a brand-new office building in West Lake Hills. "As a state, we created more jobs than the next 14 (highest-ranked) states in job creation, so we're in a good place."
Builders also are closely watching the resale market, where the 10,300 listings in August were the fourth-highest on record, according to the Austin Board of Realtors. That is substantial competition for new-home sales.
The resale median price has continued to rise. But there are early signs that could be changing. The August median of $195,000 was up just 2 percent from a year earlier, the smallest increase since September 2005, when the median rose 1 percent.
"Resale in a good location is still selling; it's just not selling at prices that people were able to get two years ago," said Helen Edwards, Central Texas regional president of Coldwell Banker United, Realtors. "We're seeing signs of activity on the new construction product, new homes that are priced aggressively, so we know that the buyers are still active in the marketplace," Edwards said. "Plus, we're hearing loud and clear from many of our sellers that they're comfortable with lowering their listing prices if it means getting offers and selling quickly."
Looking for upturn
Some private builders are betting on a rebound.
Wunsch said he has been positioning his company for a turnaround in the next 12 to 18months by getting entitlements and approvals for 6,000 lots in several projects. They include Avery Center in Round Rock and Three Forks and Somerset Hills in Georgetown. After Centex canceled its Pearson Ranch plans, Wunsch bought 195 acres of that land and was able to sell 400 lots. Once the market rebounds and builders release money to buy lots, "we'll be ready to serve them pretty quickly," Wunsch said. "That's been our whole game plan. We're going to be two years ahead of another company starting from scratch."
The new-home market is oversupplied now, "but the good news is that we are back to the 8,000 to 10,000 starts range, which is a more normal pace for the Austin market," he said. He said Waterstone has formed a real estate investment fund with several investors. The primary investor is Hans van Veggel, chairman of a Dutch company that is the largest shopping center developer in Europe.
"They've committed dollars, and as opportunities come along, we have the ability to jump on those opportunities," Wunsch said. "In this environment, with banks being apprehensive on new loans, we're still fortunate we can get loans, but we have to put in more equity." Wunsch bases his optimism on several factors. His contacts in Europe, he said, believe "Texas is still the place to be in the U.S., and Austin is the diamond of them all."
Wunsch is on the board of the economic development committee in Round Rock and says there are "quite a few" new corporate prospects eyeing the region for expansion or relocation. And recently, he said, he finally had some encouraging conversations with national homebuilders. "They're cautious, but they're starting to talk optimistically," Wunsch said.
Ryan Jackson, sales director of Austin-based Streetman Homes, also is optimistic that the market will turn next year, once the financial bailout plan is under way and the presidential election is decided. "We are anticipating growth for next year," Jackson said.
Mitchell said he and his partners hope to start work on Goodnight Ranch within the next year. They've already spent $3 million on some of the infrastructure needs, and the Austin school district opened Blazier Elementary School nearby last year. "We're pretty convinced that the market is going to turn," he said. "We don't want to wake up one day and say, 'It's a good time to start building a house; we'll see you in two years.' We'd like to be ready for this."
Two years ago, developer Terry Mitchell said eight large homebuilders had expressed interest in taking 200 to 300 lots apiece at Goodnight Ranch. They offered between $5 million and $7 million in earnest money, which would help pay for $8 million worth of water and wastewater lines and other improvements. "In late 2007, I surveyed those eight builders, and they collectively couldn't come up to $500,000," Mitchell said. The project is on hold for a year.
Tight credit for builders and buyers alike, slowing job growth and the darkening clouds over the economy have dramatically changed the new-home landscape in Central Texas. Two years ago, builders started a record 16,000 homes in Central Texas. This year, they're on track to build slightly more than 10,000, based on new figures from Residential Strategies Inc.
It's not over yet: Housing experts say the slowdown could continue to deepen for at least another year, until the mortgage and financial markets recover. Short term, that means some good deals for buyers as builders pile on incentives to sell off their inventory before the end of the year.
One result of the builder pullback is that Central Texas doesn't have a glut of unsold new homes that has driven down prices, as is the case in many other cities. At the current sales rate, it would take 6.3 months to sell the current supply, compared with almost 11 months nationally.
The local median price for new homes in the third quarter was $210,870, almost unchanged from a year earlier, according to Residential Strategies.
"We've been impacted, but we're not suffering a hangover that a lot of those other markets are suffering from," said Derrick Jones, a former marketing executive for homebuilders who now owns Austin City Living, a real estate brokerage. Still, he said, builders are offering concessions ranging from free upgrades for buyers making a full-price offer to as much as $100,000 off on an $800,000 home. Jones said the incentives will start easing as the year comes to a close but won't go away altogether until the market rebounds.
Mortgage money remains tight, with some lenders requiring up to 20 percent down — a sharp contrast to the zero-down loans that proliferated just two years ago, Jones said. "I think the lenders are more receptive to making loans here than they would be in some other more depressed parts of the country," he said. But as for 100 percent financing, "it's really just not there any more."
Commercial capital drying up
The credit situation is much more severe for builders and developers. Money to buy land for future subdivisions became scarce this summer and has all but dried up in recent weeks.
"It's extremely difficult to get money," said Bob Wunsch, chief executive of Austin-based Waterstone Development, a longtime Williamson County developer. "You have to have very good builders and a very good piece of land, or I doubt you're going to get money in this market."
National, publicly traded companies, which account for almost 60 percent of homebuilding activity in Central Texas, have been especially hard hit by the credit contraction. Last year, Dallas-based Centex Homes signed a contract to buy 450 acres of the Pearson Ranch in Williamson County, planning a $275 million, 1,400-home subdivision, which would have been its biggest project ever in Central Texas. Several months later, it canceled the deal as the housing downturn deepened.
In late December, D.R. Horton pulled out of the Headwaters at Barton Creek, a proposed 1,000-home development where it had purchased options on lots.
The builders' retreat has some real estate observers questioning whether the stage is being set for a housing shortage, at least in some areas, once the economy rebounds.
It takes three years, sometimes longer, to plan and build a subdivision, Mitchell said. But developers are reluctant to spend the money to prepare land until they're confident builders will be ready to buy lots. "If you make the assumption that the market is going to grow someday in the future, we're going to have a (lot) shortage," Mitchell said. "We are a manufacturing business with a three-year cycle, so when you turn off the plant, you don't have houses in two months" once you restart it. "It's going to be awhile."
However, because builders slammed on the brakes so quickly once the downturn started, there is an oversupply of lots ready to build on: more than 31,000, up from about 27,000 a year ago. Most of the excess is in outlying areas, including west of Lake Travis, where there's an 85.8-month supply. Far Southeast Austin, near Bastrop, has more than a 90-month supply.
With scant new development in the pipeline, the overall supply will be absorbed in 2½ to three years at current demand levels, predicts Mark Sprague, the Austin partner for Residential Strategies.
But forecasting the future is clouded by the huge uncertainties about the economy and the spreading credit crisis. "In light of the seriousness of the issues at hand regarding the global financial markets, it is extremely difficult to gauge the extent of the slowdown in the local housing market over the next year or so," said Eldon Rude, the Austin director of Metrostudy, which tracks and forecasts the housing market. "Any forward view of the market must assume that the current credit crisis will be resolved in the coming quarters."
Rude thinks new-home prices over the next year or so will be flat at best. "We're going to have less demand for housing over the next year than we have in years past," he said.
Sprague said if current sales trends stay steady for the foreseeable future, the new-home market should be close to bottoming out. The wild card, he said, is "the stabilization of Wall Street and the outcome of the financial bailout plan." "With the uncertainty of the credit markets and the increased prospects for a national recession, there continues to be a chance for further market erosion," Sprague said.
Austin has several factors in its favor. Job growth has slowed significantly in the past year but remains about 2 percent, compared with heavy job losses nationally.
"We continue to have high-paying jobs move here compared to other markets," Sprague said, citing the money management firm Dimensional Fund Advisors as an example. The firm moved from California to Austin in the past year, occupying a brand-new office building in West Lake Hills. "As a state, we created more jobs than the next 14 (highest-ranked) states in job creation, so we're in a good place."
Builders also are closely watching the resale market, where the 10,300 listings in August were the fourth-highest on record, according to the Austin Board of Realtors. That is substantial competition for new-home sales.
The resale median price has continued to rise. But there are early signs that could be changing. The August median of $195,000 was up just 2 percent from a year earlier, the smallest increase since September 2005, when the median rose 1 percent.
"Resale in a good location is still selling; it's just not selling at prices that people were able to get two years ago," said Helen Edwards, Central Texas regional president of Coldwell Banker United, Realtors. "We're seeing signs of activity on the new construction product, new homes that are priced aggressively, so we know that the buyers are still active in the marketplace," Edwards said. "Plus, we're hearing loud and clear from many of our sellers that they're comfortable with lowering their listing prices if it means getting offers and selling quickly."
Looking for upturn
Some private builders are betting on a rebound.
Wunsch said he has been positioning his company for a turnaround in the next 12 to 18months by getting entitlements and approvals for 6,000 lots in several projects. They include Avery Center in Round Rock and Three Forks and Somerset Hills in Georgetown. After Centex canceled its Pearson Ranch plans, Wunsch bought 195 acres of that land and was able to sell 400 lots. Once the market rebounds and builders release money to buy lots, "we'll be ready to serve them pretty quickly," Wunsch said. "That's been our whole game plan. We're going to be two years ahead of another company starting from scratch."
The new-home market is oversupplied now, "but the good news is that we are back to the 8,000 to 10,000 starts range, which is a more normal pace for the Austin market," he said. He said Waterstone has formed a real estate investment fund with several investors. The primary investor is Hans van Veggel, chairman of a Dutch company that is the largest shopping center developer in Europe.
"They've committed dollars, and as opportunities come along, we have the ability to jump on those opportunities," Wunsch said. "In this environment, with banks being apprehensive on new loans, we're still fortunate we can get loans, but we have to put in more equity." Wunsch bases his optimism on several factors. His contacts in Europe, he said, believe "Texas is still the place to be in the U.S., and Austin is the diamond of them all."
Wunsch is on the board of the economic development committee in Round Rock and says there are "quite a few" new corporate prospects eyeing the region for expansion or relocation. And recently, he said, he finally had some encouraging conversations with national homebuilders. "They're cautious, but they're starting to talk optimistically," Wunsch said.
Ryan Jackson, sales director of Austin-based Streetman Homes, also is optimistic that the market will turn next year, once the financial bailout plan is under way and the presidential election is decided. "We are anticipating growth for next year," Jackson said.
Mitchell said he and his partners hope to start work on Goodnight Ranch within the next year. They've already spent $3 million on some of the infrastructure needs, and the Austin school district opened Blazier Elementary School nearby last year. "We're pretty convinced that the market is going to turn," he said. "We don't want to wake up one day and say, 'It's a good time to start building a house; we'll see you in two years.' We'd like to be ready for this."
Thứ Sáu, 10 tháng 10, 2008
Buying Real Estate During The Economic Crisis
Given the current economic crisis -- which appears to be growing global in scope -- has made buying real estate more difficult. Credit is tough to come by, and these days you need a job to buy a house. That is, unless you are in a significant cash position, which doesn't describe most Texans. Most of us need credit, and are having diffculty obtaining it.
The credit crisis continues to grow, and uncertainty looms large. Third quarter 401(k), 457, 403(b) and IRAs have dropped. Savings rates have dropped. Gas prices remain high, and wages low.
With the central banks around the world working in concert to lower interest rates, crashing stock markets in the U.S., Europe & Asia, rising unemployment, a dwindling Peso and a hotly-contested and increasingly-ugly U.S. presidential election, even the most optimistic real estate agents and mortgage brokers are getting nervous.
They say that all real estate (like all politics) is local. So...how does the national/global crisis effect San Antonio homeowners or home buyers? As the U.S. economy falls into a recession, jobless numbers have increased and more than 750,000 American jobs have been lost this year. According to the US Dept. of Labor (Bureau of Labor Statistics) as of the end of September 2008, the national unemployment rate was officially 6.1 percent. The number of unemployed persons is 9.5 million, and over the past 12 months, the number of unemployed persons has increased by 2.2 mil-
lion and the unemployment rate has risen by 1.4 percentage points. Some unemployment experts have sugggested that the true rate of unemployment in the U.S.-- if you factor in those making less money than they were two years ago or working at part-time jobs rather than full-time jobs because they can't find the right situation, those who are underemployed, and those who have just given up looking for a job and have fallen off the rolls -- is approaching 10 percent.
There is a strong nexus between rising unemployment and a faltering real estate market because most lenders will not issue a mortgage loan, unless the borrower can demostrate sufficient incme to make the payments. These days, the income won't come from the stock market or from "flipping." As such, jobs are virtually essential for obtaining a mortgage loan.
In Texas, almost 600,000 people, or 5.0% of the workforce was unemployed in August. This was up from 4.7% in July and 4.1% in April. In San Antonio -- which many claim has been insulated from the housing crisis -- new and existing homes sales have dropped. San Antonio builders started construction on 33 percent fewer homes this (3rd) quarter than they did during the same period last year. Sales of new homes in San Antonio are down 36 percent from last year.
The credit squeeze has reminded banks and mortgage lenders that, while credit scores are perhaps decent indicators of whether a borrower has financial stability, they don't make the mortgage payments. Similarly, FICO scores don't take into account whether someone has substantial savings or cash on hand.
On the other hand, if you have a steady job, demonstrable income, and a good credit score, you may want to talk to your lender about refinancing. Just this morning, Freddie Mac announced that interest rates on 30 year mortgages have dropped to below 6% (5.94% to be exact). So there is some good news. Here's some more:
If you have an adjustable rate mortgages (ARM) tied to United States Treasuries, your interest rate may adjust downward -- maybe even to the 4.5 percent range. How could this happen? If the one year Treasury Bill Index is at 1.5 percent, and you have a 3 percent margin attached to your ARM loan, that adds up to a 4.5 percent interest rate.
If you have an ARM tied to the London Interbank Offered Rate (LIBOR) or some form of interest-only loan, certain lenders will lock-in adjustable rates for a small fee (around $250). Find out when and at what interest rate your loan will adjust to. The cost of converting your ARM to a fixed-rate loan may be well worth the savings to be realized long-term. Plus, any financial certainity you can obtain in today's climate is probably a good thing.
While we all have plenty of reasons to worry, smart home buyers with demonstrable income and good credit can find great deals. If you can whether the storm and stay on top of your mortgage payments, a good buy today could result in a terrific sale once the storm has passed.
As always, prior to obtaining a mortgage loan or entering into a real estate sale/purchase contract, you should consult with an experienced real estate lawyer. San Antonio lawyer Trey Wilson of R L Wilson, P.C. Law Firm has a diverse practice related to real estate, residential, construction, mortgage, landlord-tenant, homeowners association and general litigation. In September 2008, Trey Wilson was named by Scene in SA magazine as one of San Antonio's best real estate litigation attorneys. He can be reached at 210/223-4100 or www.sa-law.com.
The credit crisis continues to grow, and uncertainty looms large. Third quarter 401(k), 457, 403(b) and IRAs have dropped. Savings rates have dropped. Gas prices remain high, and wages low.
With the central banks around the world working in concert to lower interest rates, crashing stock markets in the U.S., Europe & Asia, rising unemployment, a dwindling Peso and a hotly-contested and increasingly-ugly U.S. presidential election, even the most optimistic real estate agents and mortgage brokers are getting nervous.
They say that all real estate (like all politics) is local. So...how does the national/global crisis effect San Antonio homeowners or home buyers? As the U.S. economy falls into a recession, jobless numbers have increased and more than 750,000 American jobs have been lost this year. According to the US Dept. of Labor (Bureau of Labor Statistics) as of the end of September 2008, the national unemployment rate was officially 6.1 percent. The number of unemployed persons is 9.5 million, and over the past 12 months, the number of unemployed persons has increased by 2.2 mil-
lion and the unemployment rate has risen by 1.4 percentage points. Some unemployment experts have sugggested that the true rate of unemployment in the U.S.-- if you factor in those making less money than they were two years ago or working at part-time jobs rather than full-time jobs because they can't find the right situation, those who are underemployed, and those who have just given up looking for a job and have fallen off the rolls -- is approaching 10 percent.
There is a strong nexus between rising unemployment and a faltering real estate market because most lenders will not issue a mortgage loan, unless the borrower can demostrate sufficient incme to make the payments. These days, the income won't come from the stock market or from "flipping." As such, jobs are virtually essential for obtaining a mortgage loan.
In Texas, almost 600,000 people, or 5.0% of the workforce was unemployed in August. This was up from 4.7% in July and 4.1% in April. In San Antonio -- which many claim has been insulated from the housing crisis -- new and existing homes sales have dropped. San Antonio builders started construction on 33 percent fewer homes this (3rd) quarter than they did during the same period last year. Sales of new homes in San Antonio are down 36 percent from last year.
The credit squeeze has reminded banks and mortgage lenders that, while credit scores are perhaps decent indicators of whether a borrower has financial stability, they don't make the mortgage payments. Similarly, FICO scores don't take into account whether someone has substantial savings or cash on hand.
On the other hand, if you have a steady job, demonstrable income, and a good credit score, you may want to talk to your lender about refinancing. Just this morning, Freddie Mac announced that interest rates on 30 year mortgages have dropped to below 6% (5.94% to be exact). So there is some good news. Here's some more:
If you have an adjustable rate mortgages (ARM) tied to United States Treasuries, your interest rate may adjust downward -- maybe even to the 4.5 percent range. How could this happen? If the one year Treasury Bill Index is at 1.5 percent, and you have a 3 percent margin attached to your ARM loan, that adds up to a 4.5 percent interest rate.
If you have an ARM tied to the London Interbank Offered Rate (LIBOR) or some form of interest-only loan, certain lenders will lock-in adjustable rates for a small fee (around $250). Find out when and at what interest rate your loan will adjust to. The cost of converting your ARM to a fixed-rate loan may be well worth the savings to be realized long-term. Plus, any financial certainity you can obtain in today's climate is probably a good thing.
While we all have plenty of reasons to worry, smart home buyers with demonstrable income and good credit can find great deals. If you can whether the storm and stay on top of your mortgage payments, a good buy today could result in a terrific sale once the storm has passed.
As always, prior to obtaining a mortgage loan or entering into a real estate sale/purchase contract, you should consult with an experienced real estate lawyer. San Antonio lawyer Trey Wilson of R L Wilson, P.C. Law Firm has a diverse practice related to real estate, residential, construction, mortgage, landlord-tenant, homeowners association and general litigation. In September 2008, Trey Wilson was named by Scene in SA magazine as one of San Antonio's best real estate litigation attorneys. He can be reached at 210/223-4100 or www.sa-law.com.
S.A. new-home starts down 33%; housing inventory still falling
By Aïssatou Sidimé - Express-News New-home starts dipped 33 percent during the last quarter, but still were outpaced by the number of home closings, according to a new report. Still, rising lot inventories signal that the San Antonio housing market still has a supply imbalance, experts say.
San Antonio builders started 2,330 new homes in the three-month period ended Sept. 30 -- down 33 percent from the same period last year, according to Residential Strategies Inc. They closed sales on about 2,600 homes during the third quarter, down 36 percent from a year earlier.
That places builders on track to sell between 10,500 and 11,000 new homes by year-end, RSI's San Antonio representative Cassie Gibson said.
San Antonio builders have been working to reduce housing inventories since late last year. While it appears to be working, based on the number of homes sold, builders are seeing a rising level of empty lots.
The number of vacant developed lots was 39,884, up 2,000 lots from the previous quarter. That's more than double the level considered to represent a balanced housing market.
“San Antonio's 50.7-month supply is the highest of Austin, the DFW-corridor,” Gibson said.
Michael Moore, a partner in Ironstone Development, said housing demand is so slow that his business nearly has dried up.
“At any one time, we used to have four to five projects going; but this year, we haven't started a new subdivision in nine months,” said Moore, president of the Greater San Antonio Builders Association.
San Antonio housing developers say inventories could continue to rise as demand dips in response to tightening credit and new federal rules that ban builder-funded cash gifts to buyers. Those gifts played a key part in sales for new homes priced under $150,000, he said.
San Antonio builders started 2,330 new homes in the three-month period ended Sept. 30 -- down 33 percent from the same period last year, according to Residential Strategies Inc. They closed sales on about 2,600 homes during the third quarter, down 36 percent from a year earlier.
That places builders on track to sell between 10,500 and 11,000 new homes by year-end, RSI's San Antonio representative Cassie Gibson said.
San Antonio builders have been working to reduce housing inventories since late last year. While it appears to be working, based on the number of homes sold, builders are seeing a rising level of empty lots.
The number of vacant developed lots was 39,884, up 2,000 lots from the previous quarter. That's more than double the level considered to represent a balanced housing market.
“San Antonio's 50.7-month supply is the highest of Austin, the DFW-corridor,” Gibson said.
Michael Moore, a partner in Ironstone Development, said housing demand is so slow that his business nearly has dried up.
“At any one time, we used to have four to five projects going; but this year, we haven't started a new subdivision in nine months,” said Moore, president of the Greater San Antonio Builders Association.
San Antonio housing developers say inventories could continue to rise as demand dips in response to tightening credit and new federal rules that ban builder-funded cash gifts to buyers. Those gifts played a key part in sales for new homes priced under $150,000, he said.
Thứ Tư, 8 tháng 10, 2008
Cop Watch: With Homeowners Like This Guy, Can The Cops Keep Up?
Over in Fort Worth, it's a whole new ballgame. A dangerous one.
Jim Cox, Homeowner, Is Ready for Action
Jim Cox is a FortWorth homeowner who makes a living as a weapons instructor, and he's got his house all ready for crime. He's installed video cameras around the place, and even when he's at home, those cameras are rolling and he's got the lights on.
Well, seems this past Monday morning around 11, a group of guys (the cameras caught 4 of them) pulled up in a minivan to Cox's house and one guy gets out, knocks on the door, rings the bell.
Jim Cox has just taken a shower, now he's finishing up his morning nap. All the lights are on.
The cameras then film a second guy joining the guy at the door, and they're shown kicking in the front door. Jim Cox has just come into his kitchen.
The next thing that the cameras pick up? These guys are running for the hills -- Cox has pulled out his semi-automatic and he's introduced himself.
Of course, Jim Cox reports that he "knew to hold his fire, ..." but " '[i]f they had confronted me, there would have been a noise.'"
Jim Cox's Home Video Available for Review Online
Now, Cox has printed up photos from this video, and he's sharing them with the neighborhood and the media: you can see his excerpts online at the link shown below.
And the Fort Worth police? They're reported to be "investigating the incident. "
The Reality - It's Dangerous for Everyone
This is a dangerous situation for everyone -- luckily, the only violence in this story appears to be the kick leveled against the front door. This homeowner could have been seriously injured, or killed -- or he could be facing criminal charges himself, for harming someone else.
But that's where we are these days, because there are a lot of folk out there that don't believe that they can leave their safety in the hands of their local law enforcement.
Source:
CBS11TV.com
(http://cbs11tv.com/local/North.Fort.Worth.2.834961.html)
Jim Cox, Homeowner, Is Ready for Action
Jim Cox is a FortWorth homeowner who makes a living as a weapons instructor, and he's got his house all ready for crime. He's installed video cameras around the place, and even when he's at home, those cameras are rolling and he's got the lights on.
Well, seems this past Monday morning around 11, a group of guys (the cameras caught 4 of them) pulled up in a minivan to Cox's house and one guy gets out, knocks on the door, rings the bell.
Jim Cox has just taken a shower, now he's finishing up his morning nap. All the lights are on.
The cameras then film a second guy joining the guy at the door, and they're shown kicking in the front door. Jim Cox has just come into his kitchen.
The next thing that the cameras pick up? These guys are running for the hills -- Cox has pulled out his semi-automatic and he's introduced himself.
Of course, Jim Cox reports that he "knew to hold his fire, ..." but " '[i]f they had confronted me, there would have been a noise.'"
Jim Cox's Home Video Available for Review Online
Now, Cox has printed up photos from this video, and he's sharing them with the neighborhood and the media: you can see his excerpts online at the link shown below.
And the Fort Worth police? They're reported to be "investigating the incident. "
The Reality - It's Dangerous for Everyone
This is a dangerous situation for everyone -- luckily, the only violence in this story appears to be the kick leveled against the front door. This homeowner could have been seriously injured, or killed -- or he could be facing criminal charges himself, for harming someone else.
But that's where we are these days, because there are a lot of folk out there that don't believe that they can leave their safety in the hands of their local law enforcement.
Source:
CBS11TV.com
(http://cbs11tv.com/local/North.Fort.Worth.2.834961.html)
Thứ Ba, 7 tháng 10, 2008
WHAT CLAIMS OR DEFECTS ARE NOT COVERED BY TEXAS TITLE INSURANCE POLICIES???
In general, a title policy won’t cover problems with your title that occur after the date you purchased the policy. It will also not protect you from problems that you create or from problems unrelated to your or the lender’s property interests.
Your policy also will not cover any special exceptions – such as a public utility easement – added by the title company during the title examination process. These exceptions must be listed in Schedule B of your policy. The company must make you aware of each exception and describe it using common language so that you can easily locate the reason for the exception in public records.
In addition, a title policy generally will not cover the following:
The penalties of your failure to pay for your property.
An unrecorded title defect that you knew about or allowed to occur.
Violations of building and zoning ordinances and other laws and regulations related to land use, land improvements, land division, and environmental protection.
Restrictive covenants limiting how you may use the property and stating the requirements for buildings constructed on the property. Schedule B lists these restrictions. Be sure to request copies of any restrictions and have your attorney explain them. The title company may charge you for the copies.
Losses resulting from rights claimed by “parties in possession,” such as renters or anyone else occupying the land. If you object to the exception, the title company may inspect the property and delete the exception from your policy. The title company may charge for the inspection.
Condemned land, unless a condemnation notice appeared in the public record on the policy date or the condemnation occurred before the policy date.
Homestead, community property, or survivorship rights of a policyholder’s spouse. Texas homestead laws address the rights of a spouse or survivors of a property owner.
Title irregularities arising from a deceased person’s estate, a bankruptcy estate, or a trust.
Claims from other people who may have certain rights if your property is near a body of water or has a river or stream flowing through it.
Certain taxes and assessments. Your title policy ensures that all property taxes and assessments are paid for the most current year available. However, certain tax exemptions claimed by previous owners could result in more taxes being assessed against your property in the future. If you buy property with borrowed money, the lender may ask that its mortgagee policy delete the exception for “subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership.” In such cases, the title company may require that the taxes be calculated and paid.
Before purchasing or accepting a Texas title insurance policy, you should consult an experienced Texas real estate attorney to address your coverages and property rights. San Antonio lawyer Trey Wilson of R L Wilson, P.C. law Firm was recently named by his peers as one of San Antonio's best real estate litigation attorneys. He regularly reviews, makes claims under, and challenges Texas title insurance policies. he may be reached at www.sa-law.com or 210/223-4100
Your policy also will not cover any special exceptions – such as a public utility easement – added by the title company during the title examination process. These exceptions must be listed in Schedule B of your policy. The company must make you aware of each exception and describe it using common language so that you can easily locate the reason for the exception in public records.
In addition, a title policy generally will not cover the following:
The penalties of your failure to pay for your property.
An unrecorded title defect that you knew about or allowed to occur.
Violations of building and zoning ordinances and other laws and regulations related to land use, land improvements, land division, and environmental protection.
Restrictive covenants limiting how you may use the property and stating the requirements for buildings constructed on the property. Schedule B lists these restrictions. Be sure to request copies of any restrictions and have your attorney explain them. The title company may charge you for the copies.
Losses resulting from rights claimed by “parties in possession,” such as renters or anyone else occupying the land. If you object to the exception, the title company may inspect the property and delete the exception from your policy. The title company may charge for the inspection.
Condemned land, unless a condemnation notice appeared in the public record on the policy date or the condemnation occurred before the policy date.
Homestead, community property, or survivorship rights of a policyholder’s spouse. Texas homestead laws address the rights of a spouse or survivors of a property owner.
Title irregularities arising from a deceased person’s estate, a bankruptcy estate, or a trust.
Claims from other people who may have certain rights if your property is near a body of water or has a river or stream flowing through it.
Certain taxes and assessments. Your title policy ensures that all property taxes and assessments are paid for the most current year available. However, certain tax exemptions claimed by previous owners could result in more taxes being assessed against your property in the future. If you buy property with borrowed money, the lender may ask that its mortgagee policy delete the exception for “subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership.” In such cases, the title company may require that the taxes be calculated and paid.
Before purchasing or accepting a Texas title insurance policy, you should consult an experienced Texas real estate attorney to address your coverages and property rights. San Antonio lawyer Trey Wilson of R L Wilson, P.C. law Firm was recently named by his peers as one of San Antonio's best real estate litigation attorneys. He regularly reviews, makes claims under, and challenges Texas title insurance policies. he may be reached at www.sa-law.com or 210/223-4100
WHAT CLAIMS OR DEFECTS ARE COVERED BY TITLE INSURANCE POLICIES IN TEXAS?
If someone claims an interest in your property, a title company will defend your title in court and pay for any actual loss under these circumstances:
A lien is filed against your title because a previous owner failed to pay a mortgage or deed of trust; a judgment, tax, or special assessment; or a charge by a homeowners or condominium association. If you receive notice of a previous lien, contact your title company immediately and follow your policy’s claim filing procedure. Failure to do so could jeopardize your claim.
There is a lien on your title for labor and materials furnished by a contractor without your consent. Generally, your policy protects you if you buy a house already built, but not if you own the land and contract with a builder to build your home. Consult an attorney about your rights.
There are other liens or claims against your title that aren’t listed in the policy exceptions.
Leases, contracts, or options on your land weren’t recorded in the public records and disclosed to you.
The title policy failed to disclose legal restrictions on how you can use your property.
There is an easement that isn’t in public records and that you don’t know about. The title policy assures you a legal right of access to your property. This means that you have a right to travel from your property to a public street or road.
Someone didn’t properly sign the chain of title, or a notary public made an error on the document, made an error in recording the document at the county clerk’s office, or failed to deliver the deed according to statutory requirements.
A deed or other document in your chain of title is invalid as a result of forgery, fraud against the rightful owner, a signature given under force, or a signature given by a person legally incompetent to sign or claiming to be someone else.
It is important for Buyers and Sellers of real estate in Texas to read title insurance policies carefully because different companies may describe their coverage exceptions differently. In particular, review SCHEDULE B of your title insurance policy with an experinced real estate lawyer. This Section explains any limitations, exclusions, exceptions, and special conditions.
San Antonio lawyer Trey Wilson is an experienced real estate attorney familiar with Texas titke policy forms, exceptions and exclusions. he was named by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com.
A lien is filed against your title because a previous owner failed to pay a mortgage or deed of trust; a judgment, tax, or special assessment; or a charge by a homeowners or condominium association. If you receive notice of a previous lien, contact your title company immediately and follow your policy’s claim filing procedure. Failure to do so could jeopardize your claim.
There is a lien on your title for labor and materials furnished by a contractor without your consent. Generally, your policy protects you if you buy a house already built, but not if you own the land and contract with a builder to build your home. Consult an attorney about your rights.
There are other liens or claims against your title that aren’t listed in the policy exceptions.
Leases, contracts, or options on your land weren’t recorded in the public records and disclosed to you.
The title policy failed to disclose legal restrictions on how you can use your property.
There is an easement that isn’t in public records and that you don’t know about. The title policy assures you a legal right of access to your property. This means that you have a right to travel from your property to a public street or road.
Someone didn’t properly sign the chain of title, or a notary public made an error on the document, made an error in recording the document at the county clerk’s office, or failed to deliver the deed according to statutory requirements.
A deed or other document in your chain of title is invalid as a result of forgery, fraud against the rightful owner, a signature given under force, or a signature given by a person legally incompetent to sign or claiming to be someone else.
It is important for Buyers and Sellers of real estate in Texas to read title insurance policies carefully because different companies may describe their coverage exceptions differently. In particular, review SCHEDULE B of your title insurance policy with an experinced real estate lawyer. This Section explains any limitations, exclusions, exceptions, and special conditions.
San Antonio lawyer Trey Wilson is an experienced real estate attorney familiar with Texas titke policy forms, exceptions and exclusions. he was named by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com.
WHAT EXACTLY IS TITLE INSURANCE?
In Texas, the two most common types of title policies are “mortgagee policy of title insurance,” which protects lenders, and “owner policy of title insurance,” which protects property buyers. Title insurance protects you and your lender if someone challenges or encumbers your title to real property because of title defects that were unknown when you bought the policy.
Most lending institutions will not loan money to purchase a residence or other property unless you buy a "mortgagee" title policy. A Mortagee policy protects the lender´s investment if a title defect voids your title. This policy covers up to the amount of the principal on your loan and will repay the balance of your mortgage if a claim against your property voids your title. Mortgagee policies remain in effect until the loan is repaid. Most lenders will require you to buy a new mortgagee title policy if you refinance your home. When the new loan pays off the existing loan, the old mortgagee policy expires. You are entitled to a premium discount on a new mortgagee policy if you refinance within seven years.
When you buy a house, the title company also issues an owner´s policy, unless you reject it in writing. The owner´s title policy protects you, as the purchaser, against the covered risks and the specific kinds of claims listed in the policy. When you buy a house and purchase a mortgagee policy, a title company will automatically issue an owner policy unless you specifically reject it in writing. An owner policy only covers you up to the value of the property at the time you purchased the policy. It does not cover any increase in value, unless you purchase a special “increased value endorsement.” An owner policy of title insurance remains in effect as long as you or your heirs own the property or are liable for any title warranties made when you sell the property. You should keep your owner policy, even if you transfer your title or sell the property.
In Texas, title policy forms are standardized. This means the policy language is the same, regardless of the company. It’s important that you read your policy carefully because different companies may describe their coverage exceptions differently. Pay special attention to Schedule B of the policy, which explains any limitations, exclusions, exceptions, and special conditions.
Whenever you are planning to close on the purchase of real estate in Texas, you should consult with a lawyer experienced in reading and undertanding title insurance policies, expections, surveys and earnest money contracts. San Antonio Attorney Trey Wilson is experienced in real estate law, including how to file a title insurance claim, understanding title insurance coverage and exclusions / exceptions. He may be contacted at R L Wilson, P.C. Law Firm by calling 210/223-4100 or online at www.sa-law.com
Most lending institutions will not loan money to purchase a residence or other property unless you buy a "mortgagee" title policy. A Mortagee policy protects the lender´s investment if a title defect voids your title. This policy covers up to the amount of the principal on your loan and will repay the balance of your mortgage if a claim against your property voids your title. Mortgagee policies remain in effect until the loan is repaid. Most lenders will require you to buy a new mortgagee title policy if you refinance your home. When the new loan pays off the existing loan, the old mortgagee policy expires. You are entitled to a premium discount on a new mortgagee policy if you refinance within seven years.
When you buy a house, the title company also issues an owner´s policy, unless you reject it in writing. The owner´s title policy protects you, as the purchaser, against the covered risks and the specific kinds of claims listed in the policy. When you buy a house and purchase a mortgagee policy, a title company will automatically issue an owner policy unless you specifically reject it in writing. An owner policy only covers you up to the value of the property at the time you purchased the policy. It does not cover any increase in value, unless you purchase a special “increased value endorsement.” An owner policy of title insurance remains in effect as long as you or your heirs own the property or are liable for any title warranties made when you sell the property. You should keep your owner policy, even if you transfer your title or sell the property.
In Texas, title policy forms are standardized. This means the policy language is the same, regardless of the company. It’s important that you read your policy carefully because different companies may describe their coverage exceptions differently. Pay special attention to Schedule B of the policy, which explains any limitations, exclusions, exceptions, and special conditions.
Whenever you are planning to close on the purchase of real estate in Texas, you should consult with a lawyer experienced in reading and undertanding title insurance policies, expections, surveys and earnest money contracts. San Antonio Attorney Trey Wilson is experienced in real estate law, including how to file a title insurance claim, understanding title insurance coverage and exclusions / exceptions. He may be contacted at R L Wilson, P.C. Law Firm by calling 210/223-4100 or online at www.sa-law.com
Thứ Hai, 6 tháng 10, 2008
MORTGAGE GLOSSARY
Mortgage: A real estate debt instrument under which the borrower gives the lender a lien on the property as collateral for repayment.
Prime mortgage: A real estate loan in which the borrower meets the underwriting standards set by federal home loan agencies Fannie Mae and Freddie Mac. Fannie and Freddie buy mortgages from lenders to sell as bundled mortgage bonds, but the lenders have to make sure their mortgages meet the federal underwriting guidelines to be eligible. A typical prime mortgage covers a maximum of 80 percent of the value of the house, and housing costs should absorb no more than 28 percent of the buyer's gross income.
Subprime mortgage: Type of loan aimed at giving more buyers a chance to own a home, particularly buyers with less money for a down payment, less income and checkered credit histories. In the last decade, lots of subprime mortgages were written with little or no down payments, low but adjustable interest rates and little credit scrutiny. Once the adjustable rates reset, subprime mortgages required substantially higher interest rates than prime mortgages, which made them attractive to investors who bought bundles of these mortgages from lenders.
Alt-A mortgage: Short for "alternative-A." These loans form a class of mortgage between prime and subprime. Typically, they involve buyers who would be considered prime but who have little documentation of their creditworthiness or are seeking jumbo loans beyond the limits accepted by Fannie Mae and Freddie Mac ($417,000 until Congress raised the limit earlier this year).
ARM: An adjustable-rate mortgage. Such mortgages usually have a low introductory interest rate that resets after three to five years at a higher rate.
Statement loans: When a buyer didn't want to bother with documenting income and credit history, some lenders offered statement loans that required nothing more than the buyer's word that he was good for the loan.
Piggybacks: Two loans taken out at once on the same property. A typical prime mortgage requires a 20 percent down payment. Buyers who don't have that amount are generally required to purchase private mortgage insurance, which covers the lender in case of default. To avoid PMI, many borrowers took out two mortgages at once – one for 80 percent of the value of the house and a shorter-term mortgage (typically an ARM) to cover the down payment. Both mortgages were tax-deductible, which made piggybacks more attractive to buyers than PMI. (PMI became tax-deductible in 2007.)
Silent seconds: Second loans taken out without the knowledge of the first lender. Many borrowers who took out piggyback mortgages did so without telling the lender making the first mortgage. This compromised the lender's credit check. Since most lenders planned to sell the mortgage to Fannie Mae, Freddie Mac or an investment bank that would bundle it into a mortgage-backed security, credit scrutiny often fell by the wayside.
Neg-ams: Negative- amortization mortgages. Negative amortization means that the loan amount keeps growing as the borrower makes payments lower than what's needed to pay off the interest and principal. The loans were based on expectations that home values would keep rising so that the borrower could pay off the mortgage when the house was sold.
Prime mortgage: A real estate loan in which the borrower meets the underwriting standards set by federal home loan agencies Fannie Mae and Freddie Mac. Fannie and Freddie buy mortgages from lenders to sell as bundled mortgage bonds, but the lenders have to make sure their mortgages meet the federal underwriting guidelines to be eligible. A typical prime mortgage covers a maximum of 80 percent of the value of the house, and housing costs should absorb no more than 28 percent of the buyer's gross income.
Subprime mortgage: Type of loan aimed at giving more buyers a chance to own a home, particularly buyers with less money for a down payment, less income and checkered credit histories. In the last decade, lots of subprime mortgages were written with little or no down payments, low but adjustable interest rates and little credit scrutiny. Once the adjustable rates reset, subprime mortgages required substantially higher interest rates than prime mortgages, which made them attractive to investors who bought bundles of these mortgages from lenders.
Alt-A mortgage: Short for "alternative-A." These loans form a class of mortgage between prime and subprime. Typically, they involve buyers who would be considered prime but who have little documentation of their creditworthiness or are seeking jumbo loans beyond the limits accepted by Fannie Mae and Freddie Mac ($417,000 until Congress raised the limit earlier this year).
ARM: An adjustable-rate mortgage. Such mortgages usually have a low introductory interest rate that resets after three to five years at a higher rate.
Statement loans: When a buyer didn't want to bother with documenting income and credit history, some lenders offered statement loans that required nothing more than the buyer's word that he was good for the loan.
Piggybacks: Two loans taken out at once on the same property. A typical prime mortgage requires a 20 percent down payment. Buyers who don't have that amount are generally required to purchase private mortgage insurance, which covers the lender in case of default. To avoid PMI, many borrowers took out two mortgages at once – one for 80 percent of the value of the house and a shorter-term mortgage (typically an ARM) to cover the down payment. Both mortgages were tax-deductible, which made piggybacks more attractive to buyers than PMI. (PMI became tax-deductible in 2007.)
Silent seconds: Second loans taken out without the knowledge of the first lender. Many borrowers who took out piggyback mortgages did so without telling the lender making the first mortgage. This compromised the lender's credit check. Since most lenders planned to sell the mortgage to Fannie Mae, Freddie Mac or an investment bank that would bundle it into a mortgage-backed security, credit scrutiny often fell by the wayside.
Neg-ams: Negative- amortization mortgages. Negative amortization means that the loan amount keeps growing as the borrower makes payments lower than what's needed to pay off the interest and principal. The loans were based on expectations that home values would keep rising so that the borrower could pay off the mortgage when the house was sold.
Countrywide Financial agrees to modify mortgages
By TERRENCE STUTZ / The Dallas Morning News
AUSTIN – Texas and 10 other states have reached an $8.4 billion agreement with Bank of America Corp. to modify hundreds of thousands of loans – including 30,000 in Texas – and to resolve an investigation into questionable lending practices involving those mortgages.
Attorney General Greg Abbott said Monday the settlement will allow many of those homeowners to keep their homes through such measures as lowering their monthly payments, reducing interest rates and waiving late fees.
“Today’s agreement will help keep struggling homeowners out of foreclosure and in their homes,” Mr. Abbott said. “This agreement not only assists homeowners, but also helps shore up communities and markets that have been affected by the residential mortgage lending crisis.”
The investigation by several states delved into the lending practices of Countrywide Financial Corp., which was accused of misleading customers and processing hundreds of thousands of high-risk mortgages for homeowners who in many cases were unable to keep up with payments.
Countrywide was acquired last summer by Bank of America, which agreed to the settlement to close out the investigation. An estimated 400,000 former customers of Countrywide are affected by the settlement.
Bank of America has agreed to suspend the foreclosure process for eligible homeowners who are in default but wish to remain in their homes.
AUSTIN – Texas and 10 other states have reached an $8.4 billion agreement with Bank of America Corp. to modify hundreds of thousands of loans – including 30,000 in Texas – and to resolve an investigation into questionable lending practices involving those mortgages.
Attorney General Greg Abbott said Monday the settlement will allow many of those homeowners to keep their homes through such measures as lowering their monthly payments, reducing interest rates and waiving late fees.
“Today’s agreement will help keep struggling homeowners out of foreclosure and in their homes,” Mr. Abbott said. “This agreement not only assists homeowners, but also helps shore up communities and markets that have been affected by the residential mortgage lending crisis.”
The investigation by several states delved into the lending practices of Countrywide Financial Corp., which was accused of misleading customers and processing hundreds of thousands of high-risk mortgages for homeowners who in many cases were unable to keep up with payments.
Countrywide was acquired last summer by Bank of America, which agreed to the settlement to close out the investigation. An estimated 400,000 former customers of Countrywide are affected by the settlement.
Bank of America has agreed to suspend the foreclosure process for eligible homeowners who are in default but wish to remain in their homes.
DA Watch: Tarrant County DA's Office Held Back Favorable Evidence in Death Row Case for 23 Years
On Thanksgiving Day 1985, a bomb was left in a briefcase on the doorstep of a trailer in a mobile home park.
It exploded and killed three people (a 44-year-old man, his teenaged daughter, a teenaged relative) and severely wounded another (the victim's 13 year-old son).
On October 2, 2008, another bomb of sorts hit this case: the Tarrant County District Attorney's Office officially admitted that evidence favorable to the defense was intentionally held back -- and it was important stuff.
This evidence might have cleared Michael Toney -- who sat through a jury trial, was found guilty, was then sentenced to death, and who has sat on Death Row since 1999. That's 9 years on Death Row for a man who has consistently maintained his innocence of the crime.
The Evidence Against Toney
The bombing was an unsolved crime for 12 years. Then, an inmate came forward to say that Michael Toney was talking to him about this bombing -- when Toney was questioned, he said it was all a plan to help out the inmate get out of jail. He was helping his buddy, but he didn't make that bomb, or kill those people.
It's not disputed that there's no fact to connect Michael Toney to the victims. Didn't know 'em, didn't have a beef with 'em.
The only witness evidence against him was:
(1) an ex-wife (yeah, that's right) who said back then that she had seen Mike Toney with a briefcase near the mobile home park on the night of the bombing. Now, she's saying she can't remember anything because she's got memory loss from injuries sustained during her military service in the Gulf War; and
(2) his ex-best-friend, whose story has jumped more than popcorn on a hot skillet: he saw Toney at the mobile home park, no he didn't, yes, he did.... You get the idea.
I, for one, wonder about the relationship between the ex-wife and the ex-best friend -- but then, maybe I read too many Grisham novels. And that's before I even consider this mystery evidence, you'll see what I mean ....
What Was Held Back?
Back then, the Tarrant County DA saw fit to hide documents that showed inconsistencies in the stories of the ex-wife and the ex-best-friend. They just weren't provided to the defense.
There were 14 separate documents that were either exculpatory or impeaching evidence -- things that the defense attorney could have used to tear apart the stories of the ex-wife and the ex-best-friend.
What Happens Now?
Suppressing evidence violates civil rights protected by the U.S. Constitution. Mr. Toney has an argument that his federally protected civil rights involving due process have been violated.
Meanwhile, last Thursday, an "Agreed Proposed Findings of Fact," was filed before the same district court judge that presided over Torey's first trial. In this document (filed jointly by the DA's office and Torey's attorney), the Tarrant County District Attorney's Office admits its error, and a motion for a new trial has been set for hearing.
Torey could face a new trial. He could also have his conviction reversed by the Texas Court of Criminal Appeals, the highest court in the State of Texas dealing with criminal matters.
What About that 1985 DA who held back the evidence?
That DA, Mike Parrish, has since retired and he's not talking to the press.
What about that inmate-buddy who started this whole wagon train?
Dunno. I'm wondering how much he knew about this long ago Thanksgiving Day bombing ....
Source:
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-toney_03met.ART0.State.Edition1.274a805.html
It exploded and killed three people (a 44-year-old man, his teenaged daughter, a teenaged relative) and severely wounded another (the victim's 13 year-old son).
On October 2, 2008, another bomb of sorts hit this case: the Tarrant County District Attorney's Office officially admitted that evidence favorable to the defense was intentionally held back -- and it was important stuff.
This evidence might have cleared Michael Toney -- who sat through a jury trial, was found guilty, was then sentenced to death, and who has sat on Death Row since 1999. That's 9 years on Death Row for a man who has consistently maintained his innocence of the crime.
The Evidence Against Toney
The bombing was an unsolved crime for 12 years. Then, an inmate came forward to say that Michael Toney was talking to him about this bombing -- when Toney was questioned, he said it was all a plan to help out the inmate get out of jail. He was helping his buddy, but he didn't make that bomb, or kill those people.
It's not disputed that there's no fact to connect Michael Toney to the victims. Didn't know 'em, didn't have a beef with 'em.
The only witness evidence against him was:
(1) an ex-wife (yeah, that's right) who said back then that she had seen Mike Toney with a briefcase near the mobile home park on the night of the bombing. Now, she's saying she can't remember anything because she's got memory loss from injuries sustained during her military service in the Gulf War; and
(2) his ex-best-friend, whose story has jumped more than popcorn on a hot skillet: he saw Toney at the mobile home park, no he didn't, yes, he did.... You get the idea.
I, for one, wonder about the relationship between the ex-wife and the ex-best friend -- but then, maybe I read too many Grisham novels. And that's before I even consider this mystery evidence, you'll see what I mean ....
What Was Held Back?
Back then, the Tarrant County DA saw fit to hide documents that showed inconsistencies in the stories of the ex-wife and the ex-best-friend. They just weren't provided to the defense.
There were 14 separate documents that were either exculpatory or impeaching evidence -- things that the defense attorney could have used to tear apart the stories of the ex-wife and the ex-best-friend.
What Happens Now?
Suppressing evidence violates civil rights protected by the U.S. Constitution. Mr. Toney has an argument that his federally protected civil rights involving due process have been violated.
Meanwhile, last Thursday, an "Agreed Proposed Findings of Fact," was filed before the same district court judge that presided over Torey's first trial. In this document (filed jointly by the DA's office and Torey's attorney), the Tarrant County District Attorney's Office admits its error, and a motion for a new trial has been set for hearing.
Torey could face a new trial. He could also have his conviction reversed by the Texas Court of Criminal Appeals, the highest court in the State of Texas dealing with criminal matters.
What About that 1985 DA who held back the evidence?
That DA, Mike Parrish, has since retired and he's not talking to the press.
What about that inmate-buddy who started this whole wagon train?
Dunno. I'm wondering how much he knew about this long ago Thanksgiving Day bombing ....
Source:
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-toney_03met.ART0.State.Edition1.274a805.html
DWINDLING REAL ESTATE APPRAISALS AND VALUES MAKE RE-FINANCING TOUGH & SOMETIMES IMPOSSIBLE
A friend of mine recently went through a divorce. Among the marital estate's community property assets (and liabilities) divided by Court, was the Stone Oak home she and her husband purchased together when the marriage was sailing on smooth waters. However, when it was decided that they could no longer live together, and that divorce was imminent, the not-so-happy couple had to make the tough decision of who would keep the home and who would move on.
Because the soon-to-be-batechelor's job requires frequent travel, it was decided that my friend (the wife) would continue to occupy the home, and assume all liabilities for the purchase price. These liabilities included a six figure mortgage loan (including a home equity loan used to buy furniture and take a vacation) that she and her husband had taken out together. The couple's agreement was soon reduced to writing and incorporated into the Final Decree of Divorce entered by the Bexar County District Court. As is frequently the case, the Court ORDERED that the wife re-finance the home so that a new mortgage loan would issue in her name, and the husband would be free of any liability associated with the home.
Because her credit is good, and she maintains a good job as in-house counsel at a large San Antonio company, my friend assumed she'd have no problem obtaining financing on the home. She couldn't have been more wrong!
My friend quickly contacted a mortgage broker, and was directed to several lending institutions offering mortgage loans in today's tough credit market. She found a lender offering acceptable terms, and was promptly approved for a mortgage loan. All she'd have to do was provide a survey, title poicly and appraisal. That's where the problems began.
When she contacted the appraiser, and told him that the home was in one of Stone Oak's many hidden, hard-to-find, gated communities, he advised that he knew just how to get to the home because he'd performed several appraisals "in that subdivision where every house is on the market." Because my friend wasn't actually selling her home, she didn't immediately realize the implications of that statement. After all, she had noticed that FIVE homes on her street had FOR SALE signs in the lawn, with three more around the corener, but what did that have to do with her? Turns out, it had plenty to do with her ability to re-finance.
The availability (supply) of homes in the neighborhood had caused a curious effect on the price (value) of homes located there. That is, supply far exceeded demand, which resulted in a significant decrease in price. Basic economics resulted in desperate Sellers in the neighborhood selling their homes for far less than what they had paid for them. For example, a 2,000 square foot home which had been purchased for $141.00/square foot ($282,000.00) five years ago had recently sold for $89.00/square foot ($178,000.00). Desperate times call for desparate measures, and San Antonio's loss of AT&T, Washington Mutual and the jobs those firms offered have sent shockwaves of desparation coursing through Stone Oak. This creates a climate of decreased values and surprisingly low appraisals. Wall Street and the stock market are not the only losers when economic times turn tough.
Because the average sales price for a home in her neighborhood during the past 18 months had been $102.00/square foot, the appraisal for my friend's home was based upon that unit value. At the end of the day, the appraiser certified a fair market value of $229,500.00 (2250 square feet x $102/sq. ft.). Too bad the total outstanding amount she and her husband owed on the mortgage and home equity loans they had taken out was $263,000.00!!!!! They weren't nearly so concerned about that amount when they thought the home was worth $310,500.00 (or $138.00/square foot).
In the end, the mortgage company DENIED the re-finance. Turns out my friend and her ex-husband traded blows over who would keep an asset which is today worth NEGATIVE $33,500.00 to them. That is, if the home were sold today according to market trends, she would walk away with a deficiency to the mortgage lenders in the amount of $33,500!
She's looking for another solution, but the picture isn't a rosy one. Americans hold $10.6 trillion in mortgage debt. So far in the current mortgage meltdown, $1.8 trillion or more of that debt is for mortgages that are underwater – loans that are higher than the value of the property. Much like my friend's.
In the 1980s, residential property values plunged in Texas. Since then, abundant land and loads of builders have resulted in enough houses on the San Antonio market to slow home appreciation. When considering buying, selling or re-financing a home, you chould consider the long-term implications of your decision in our uncertain economic climate.
Because the soon-to-be-batechelor's job requires frequent travel, it was decided that my friend (the wife) would continue to occupy the home, and assume all liabilities for the purchase price. These liabilities included a six figure mortgage loan (including a home equity loan used to buy furniture and take a vacation) that she and her husband had taken out together. The couple's agreement was soon reduced to writing and incorporated into the Final Decree of Divorce entered by the Bexar County District Court. As is frequently the case, the Court ORDERED that the wife re-finance the home so that a new mortgage loan would issue in her name, and the husband would be free of any liability associated with the home.
Because her credit is good, and she maintains a good job as in-house counsel at a large San Antonio company, my friend assumed she'd have no problem obtaining financing on the home. She couldn't have been more wrong!
My friend quickly contacted a mortgage broker, and was directed to several lending institutions offering mortgage loans in today's tough credit market. She found a lender offering acceptable terms, and was promptly approved for a mortgage loan. All she'd have to do was provide a survey, title poicly and appraisal. That's where the problems began.
When she contacted the appraiser, and told him that the home was in one of Stone Oak's many hidden, hard-to-find, gated communities, he advised that he knew just how to get to the home because he'd performed several appraisals "in that subdivision where every house is on the market." Because my friend wasn't actually selling her home, she didn't immediately realize the implications of that statement. After all, she had noticed that FIVE homes on her street had FOR SALE signs in the lawn, with three more around the corener, but what did that have to do with her? Turns out, it had plenty to do with her ability to re-finance.
The availability (supply) of homes in the neighborhood had caused a curious effect on the price (value) of homes located there. That is, supply far exceeded demand, which resulted in a significant decrease in price. Basic economics resulted in desperate Sellers in the neighborhood selling their homes for far less than what they had paid for them. For example, a 2,000 square foot home which had been purchased for $141.00/square foot ($282,000.00) five years ago had recently sold for $89.00/square foot ($178,000.00). Desperate times call for desparate measures, and San Antonio's loss of AT&T, Washington Mutual and the jobs those firms offered have sent shockwaves of desparation coursing through Stone Oak. This creates a climate of decreased values and surprisingly low appraisals. Wall Street and the stock market are not the only losers when economic times turn tough.
Because the average sales price for a home in her neighborhood during the past 18 months had been $102.00/square foot, the appraisal for my friend's home was based upon that unit value. At the end of the day, the appraiser certified a fair market value of $229,500.00 (2250 square feet x $102/sq. ft.). Too bad the total outstanding amount she and her husband owed on the mortgage and home equity loans they had taken out was $263,000.00!!!!! They weren't nearly so concerned about that amount when they thought the home was worth $310,500.00 (or $138.00/square foot).
In the end, the mortgage company DENIED the re-finance. Turns out my friend and her ex-husband traded blows over who would keep an asset which is today worth NEGATIVE $33,500.00 to them. That is, if the home were sold today according to market trends, she would walk away with a deficiency to the mortgage lenders in the amount of $33,500!
She's looking for another solution, but the picture isn't a rosy one. Americans hold $10.6 trillion in mortgage debt. So far in the current mortgage meltdown, $1.8 trillion or more of that debt is for mortgages that are underwater – loans that are higher than the value of the property. Much like my friend's.
In the 1980s, residential property values plunged in Texas. Since then, abundant land and loads of builders have resulted in enough houses on the San Antonio market to slow home appreciation. When considering buying, selling or re-financing a home, you chould consider the long-term implications of your decision in our uncertain economic climate.
HOME BUYER'S DOWN-PAYMENT ASSISTANCE IS AVAILABLE
Did you know that there are ways to get help with mortgage-related expenses in San Antonio? Home buyers in the Alamo City can accept both gifts and aid from nonprofit organizations and government agencies to assist in realizing the American Dream. Assistance programs vary by income and factors such as whether one is a first-time home buyer or a military veteran, but can provide thousands of dollars toward upfront expenses, fees, closing costs and the down payment.
Bexar County Department of Community Investment American Dream Downpayment Initiative: Provides up to $10,000 or 6 percent of the purchase price for first-time home buyers whose income does not exceed 80 percent of the median family income in the county. Excludes homes within the city of San Antonio. Buyer pays 1 percent of sales price.
Contact: (210) 335-6538, www.bexar.org/CDP/Housing.html
City of San Antonio’s Housing and Neighborhood Services Department’s Homeownership Incentive Program: Provides up to $12,000 to buyers earning less than 80 percent of the median Bexar County family income. Must buy a home up in the city limits worth no more than $110,000.
Down payment assistance for veterans: Includes up to $15,000 toward down payment and closing costs to veterans earning less than 80 percent of the median Bexar County income. No sales price cap. Monthly mortgage payment can equal up to 33 percent of monthly income, while total monthly debt payments cannot exceed 41 percent.
Contact: (210) 207-7881, www.sanantonio.gov/nad
Neighborhood Assistance Corp. of America: Charges no down payment, closing costs, points or application or origination fees; interest rate is 1 percent below base market rate; borrower must have 3 percent in escrow to cover prepaid fees and moving expenses; there are loan caps for Bexar County and all contiguous counties.
Contact: (210) 826-2828, www.naca.com
Neighborhood Housing Services of San Antonio Inc.: Provides up to $21,000 in second mortgage set at a 4 percent interest rate to cover fees and closing costs. Total loan package can be up to 105 percent of the purchase price. It helps buyers under 120 percent of the median family income in Bexar County. Buyers must attend home buyer classes.
Contact: (210) 533-6673, www.nhsofsa.org
Texas Department of Housing and Community Affairs Texas Lone Star Program: Provides up to 8 percent of the purchase price for down payment and closing costs as a 20-year second mortgage. CitiMortgage is the lender.
First Time Homebuyer Program: Provides up to 5 percent of the mortgage amount for down payment and closing costs to buyers with between 60 percent and 80 percent of the median family income. Repeat buyers cannot have owned a house within the last three years. Has higher interest rate.
Contact: (866) 535-2673 and (800) 792-1119, www.tdhca.state.tx.us/
Texas State Affordable Housing Corp. Professional Educators Home Loan Program: Provides 5 percent of the mortgage amount for down payment and closing costs to buyers with up to 140 percent of median family income. Must be full-time teacher, teacher aide, school librarian, school nurse, school counselor or full-time faculty member in a professional nursing or allied health program. Purchase price capped at $237,031 in San Antonio.
Contact: (512) 477-3555, www.tsahc.org
As with any important document affecting your legal rights, you should have an experienced real estate lawyer review your mortgage loan and related documents. San Antonio lawyer Trey Wilson and the law firm of R L Wilson, P.C. have significant experience in mortgage related transactions and litigation. Contact San Antonio attorney trey Wilson at 210/223-4100 or www.sa-law.com
Bexar County Department of Community Investment American Dream Downpayment Initiative: Provides up to $10,000 or 6 percent of the purchase price for first-time home buyers whose income does not exceed 80 percent of the median family income in the county. Excludes homes within the city of San Antonio. Buyer pays 1 percent of sales price.
Contact: (210) 335-6538, www.bexar.org/CDP/Housing.html
City of San Antonio’s Housing and Neighborhood Services Department’s Homeownership Incentive Program: Provides up to $12,000 to buyers earning less than 80 percent of the median Bexar County family income. Must buy a home up in the city limits worth no more than $110,000.
Down payment assistance for veterans: Includes up to $15,000 toward down payment and closing costs to veterans earning less than 80 percent of the median Bexar County income. No sales price cap. Monthly mortgage payment can equal up to 33 percent of monthly income, while total monthly debt payments cannot exceed 41 percent.
Contact: (210) 207-7881, www.sanantonio.gov/nad
Neighborhood Assistance Corp. of America: Charges no down payment, closing costs, points or application or origination fees; interest rate is 1 percent below base market rate; borrower must have 3 percent in escrow to cover prepaid fees and moving expenses; there are loan caps for Bexar County and all contiguous counties.
Contact: (210) 826-2828, www.naca.com
Neighborhood Housing Services of San Antonio Inc.: Provides up to $21,000 in second mortgage set at a 4 percent interest rate to cover fees and closing costs. Total loan package can be up to 105 percent of the purchase price. It helps buyers under 120 percent of the median family income in Bexar County. Buyers must attend home buyer classes.
Contact: (210) 533-6673, www.nhsofsa.org
Texas Department of Housing and Community Affairs Texas Lone Star Program: Provides up to 8 percent of the purchase price for down payment and closing costs as a 20-year second mortgage. CitiMortgage is the lender.
First Time Homebuyer Program: Provides up to 5 percent of the mortgage amount for down payment and closing costs to buyers with between 60 percent and 80 percent of the median family income. Repeat buyers cannot have owned a house within the last three years. Has higher interest rate.
Contact: (866) 535-2673 and (800) 792-1119, www.tdhca.state.tx.us/
Texas State Affordable Housing Corp. Professional Educators Home Loan Program: Provides 5 percent of the mortgage amount for down payment and closing costs to buyers with up to 140 percent of median family income. Must be full-time teacher, teacher aide, school librarian, school nurse, school counselor or full-time faculty member in a professional nursing or allied health program. Purchase price capped at $237,031 in San Antonio.
Contact: (512) 477-3555, www.tsahc.org
As with any important document affecting your legal rights, you should have an experienced real estate lawyer review your mortgage loan and related documents. San Antonio lawyer Trey Wilson and the law firm of R L Wilson, P.C. have significant experience in mortgage related transactions and litigation. Contact San Antonio attorney trey Wilson at 210/223-4100 or www.sa-law.com
LYING ON MORTGAGE APPLICATIONS IS CRIMINAL -- from the Express News
QUESTION: I know someone who has qualified to obtain a second house by stating that he will rent his first house; however, he has no intentions of actually renting it. Upon obtaining the new house, he plans to walk away from the first house, letting it go into foreclosure. He will already own his new house before his credit is hurt by the foreclosure, and he plans to live in the new house until the foreclosure is removed from his credit report in seven years, so he sees it as the perfect plan. Is that legal, especially since he qualified for the new loan with false information? Is there anything I should warn him about? — Kevin
DEAR KEVIN: What a clever approach. Your friend will be the head of his class when he is incarcerated. Falsifying information on a mortgage loan application is a federal offense.
At the bottom of all settlement statements (called a HUD-1), you will find the following language:
“WARNING: It is a crime to knowingly make false statements to the United States on this or any similar form. Penalties upon conviction can include a fine and imprisonment. For details see: Title 18 U.S. Code Section 1001 and Section 1010.”
Section 1001 of our federal law makes it a crime to make “any materially false, fictitious or fraudulent statement or representation,” and the penalty can be a fine and imprisonment for not more than five years. Section 1010 deals with making false statements to induce the Department of Housing (including the FHA) to issue mortgage insurance or mortgage loans. Here, the penalty can be a fine and imprisonment for not more than two years.
I suggest that you tell your friend that he should (1) immediately rent out the house and (2) get himself a good criminal attorney. Need I say more?
DEAR KEVIN: What a clever approach. Your friend will be the head of his class when he is incarcerated. Falsifying information on a mortgage loan application is a federal offense.
At the bottom of all settlement statements (called a HUD-1), you will find the following language:
“WARNING: It is a crime to knowingly make false statements to the United States on this or any similar form. Penalties upon conviction can include a fine and imprisonment. For details see: Title 18 U.S. Code Section 1001 and Section 1010.”
Section 1001 of our federal law makes it a crime to make “any materially false, fictitious or fraudulent statement or representation,” and the penalty can be a fine and imprisonment for not more than five years. Section 1010 deals with making false statements to induce the Department of Housing (including the FHA) to issue mortgage insurance or mortgage loans. Here, the penalty can be a fine and imprisonment for not more than two years.
I suggest that you tell your friend that he should (1) immediately rent out the house and (2) get himself a good criminal attorney. Need I say more?
Chủ Nhật, 5 tháng 10, 2008
Thứ Tư, 1 tháng 10, 2008
JUDGE WATCH: Galveston Federal Judge Sam Kent Indicted For Sex Crimes
Hurricane Ike isn't the worst of problems for Sam Kent, who presides as judge over the Federal District Court over in Galveston. Ike's actually been a big help to Judge Kent.
Judge Kent has been indicted (formally charged) with three crimes: (1) two counts of abusive sexual contact and (2) one count of attempted aggravated sexual abuse. His trial was initially set for the first week of November, in a Houston federal courtroom -- now that Ike's done its damage, the trial has just been moved back to January 2009.
First Federal Judge to ever be charged with federal sex crimes
Judge Kent is the first federal judge - ever - to be charged with federal sex crimes. If he is convicted, he could face life imprisonment and a fine of $250,000.00. Judge Kent is 59 years old.
What's the story? No one's denying something happened ...
Judge Kent's former case manager has said that the judge groped her, and tried to force her into a sexual act. The Department of Justice investigated, and these formal charges are the result of that investigation.
Judge Kent calls the charges “flagrant, scurrilous” (quoting the New York Times) and promises lots of witnesses will testify on his behalf. Judge Kent also told Fifth Circuit Judge Ed Prado, when he was asked to formally respond to these charges, “I plead absolutely, unequivocally not guilty and look very much forward to a trial on the merits.” (NYT)
His attorney, Dick DeGuerin, isn't denying that something happen between the judge and the employee; instead, DeGuerin has explained that what happened between them was consensual. “To charge Judge Kent of conduct of which he is absolutely innocent based on this kind of flimsy evidence is inexcusable and we will fight it to the bitter end,” DeGuerin said (quoting the Wall Street Journal).
In the meantime, the Judge is on the bench ....
Innocent until proven guilty, Judge Kent is still hearing cases from the bench.
Sources:
New York Times
http://www.nytimes.com/2008/09/04/us/04brfs-JUDGEPLEADSN_BRF.html?ref=us
Houston Chronicle
http://www.chron.com/disp/story.mpl/front/6027380.html
Wall Street Journal
http://blogs.wsj.com/law/2008/09/02/kent-not-spent-judge-to-continue-hearing-cases-pending-indictment/
Judge Kent has been indicted (formally charged) with three crimes: (1) two counts of abusive sexual contact and (2) one count of attempted aggravated sexual abuse. His trial was initially set for the first week of November, in a Houston federal courtroom -- now that Ike's done its damage, the trial has just been moved back to January 2009.
First Federal Judge to ever be charged with federal sex crimes
Judge Kent is the first federal judge - ever - to be charged with federal sex crimes. If he is convicted, he could face life imprisonment and a fine of $250,000.00. Judge Kent is 59 years old.
What's the story? No one's denying something happened ...
Judge Kent's former case manager has said that the judge groped her, and tried to force her into a sexual act. The Department of Justice investigated, and these formal charges are the result of that investigation.
Judge Kent calls the charges “flagrant, scurrilous” (quoting the New York Times) and promises lots of witnesses will testify on his behalf. Judge Kent also told Fifth Circuit Judge Ed Prado, when he was asked to formally respond to these charges, “I plead absolutely, unequivocally not guilty and look very much forward to a trial on the merits.” (NYT)
His attorney, Dick DeGuerin, isn't denying that something happen between the judge and the employee; instead, DeGuerin has explained that what happened between them was consensual. “To charge Judge Kent of conduct of which he is absolutely innocent based on this kind of flimsy evidence is inexcusable and we will fight it to the bitter end,” DeGuerin said (quoting the Wall Street Journal).
In the meantime, the Judge is on the bench ....
Innocent until proven guilty, Judge Kent is still hearing cases from the bench.
Sources:
New York Times
http://www.nytimes.com/2008/09/04/us/04brfs-JUDGEPLEADSN_BRF.html?ref=us
Houston Chronicle
http://www.chron.com/disp/story.mpl/front/6027380.html
Wall Street Journal
http://blogs.wsj.com/law/2008/09/02/kent-not-spent-judge-to-continue-hearing-cases-pending-indictment/
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