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The Use of a Power of Attorney During a Real Estate Transaction

We get a lot of questions regarding the use of a power of attorney during a real estate transaction. We often get a phone call saying, “Hey, I’m not going to be in town that day, can somebody else sign the documents for me to sell my house?”  The answer, like a lot of answers in our business, is yes and no.

Very technically, you could provide a power of attorney to another individual that you trust to sign documents to effectuate your transaction. Now, that may not make people on the other side of the transaction or other parties in the transaction happy.

For example, title insurance underwriters typically do not like the seller to delegate the authority to sign the deed to a non-party. They typically say, “Well if the seller has to sign four documents, we are ok with the power of the attorney signing documents 1,2, and 3; but we would rather have the seller sign the deed.”  Now, that’s not a requirement or a strict obligation.  But sometimes the underwriter will give the title agent or the closer a little bit of a hard time.

So our advice on closing transactions via power of attorney is:

  1. Be very careful that you trust the person you are going to give the authority to.
  1. Make that decision or ask the questions about that with enough time to allow your Lawyer or Realtor, or your closing professional, with sufficient time to react to that request, prepare the appropriate documents, and get all the required approvals, so that is not an impediment to a smooth closing.

The bottom line is one may be able to use a power of attorney during a real estate closing.  However, the power of attorney should be prepared carefully and with ample time.

If you need any help with your real estate transaction, please give us a call as we are happy to help.

How to Calculate the Statute of Limitations in a Mortgage Foreclosure

HourglassThe simple question of how to calculate the statute of limitations in a mortgage foreclosure has finally been answered by the Florida Supreme Court.  And the banks won. Mortgage lenders may file new foreclosure actions against borrowers who won foreclosure cases more than five years ago if the borrowers defaulted again within five years of the first case’s dismissal, the court ruled.

We discussed this topic previously.  At the time, the Florida Supreme Court had not issued its ruling in Bartram v. U.S. Bank National Association, a case focused on whether the statute of limitations had run or not.  In Bartram, the mortgagor obtained a note and mortgage with a Bank.  Within the year, he stopped making the required payments.  The Bank subsequently filed a foreclosure action which was involuntary dismissed five years later when the Bank failed to appear at a case management conference.  After dismissal, the mortgagor once again failed to make the required payments and the Bank once again filed to foreclose the property.  The mortgagor stated that the Bank could not file the claim because it was outside of the 5-year statute of limitations.

On certified question by the 5th DCA the Florida Supreme Court was asked whether an acceleration of payments due under a residential note and mortgage with a reinstatement provision in a foreclosure action that was dismissed pursuant to the Florida Rules of Civil Procedure, triggers application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on the payment defaults occurring after the dismissal of the first foreclosure action.

The Court answered that question in the negative.  The Court explained that a lender is not precluded by the statute of limitations from filing a subsequent foreclosure action after the involuntary dismissal (with or without prejudice) of the first foreclosure action if the alleged subsequent default occurred within five years of the subsequent foreclosure action.

The Court reasoned that the effect of an involuntary dismissal is a revocation of the acceleration, which reinstates the mortgagor’s right to continue to make payments on the note and the right of the lender to seek acceleration and foreclosure based on the mortgagor’s subsequent defaults.

A subsequent default after dismissal is a new and independent right to accelerate which starts a new statute of limitations.

The lender is not barred by the statute of limitations from filling a subsequent foreclosure action premised on a separate and distinct default.  The statute of limitations runs from the date of the new default, and this new default gives the lender the right to accelerate all payments due.

The Court concluded that since the original foreclosure action was dismissed, the Bank could not then accelerate the payments but the default after dismissal triggered the Bank’s ability to file a second foreclosure and accelerate the payments.

Cyber Fraud and Real Estate Transactions

Today’s topic focuses on cyber fraud and real estate transactions while focusing on the ever present threat of cyber fraud and the implication is has for your real estate transaction. Like most businesses where money is involved, we are seeing an alarming trend in cyber fraud in the real estate sector. Consequently, lawyers conducting real estate transactions and title companies conducting real estate transactions have recently been the target of a lot of cyber fraud scams.

The way it generally works is the lawyer or title company will receive false instructions concerning money that was sent to the lawyer’s office or to the titles agent’s office via email.  If the title agent or lawyer isn’t careful they will use those fraudulent wire instructions to disburse funds once the transaction is closed.

Unbeknownst to the attorney or the title company the funds are now in the hands of the fraudsters.  Worse yet, the people expecting to get paid end up getting nothing. Obviously that’s a bad day for the buyer, seller and everyone involved.

These criminals will also hack lawyer’s, real estate agent’s or title agent’s emails to dupe anyone into sending an unlawful wire transfer.  This scam typically involves a last second change to the wiring instructions.

These scammers are always looking for new ways to circumvent the system and steal from others.  For instance, in this prior blog post we document how scammers are utilizing fake phone systems to “spoof” calls from legitimate organizations like the IRS.  The calls may actually appear to be legitimate on your caller ID.  But they are not.

Therefore, it is critical that lawyers and title companies follow the advice of their title insurance underwriters who are strongly recommending that any instructions received regarding money via email be verified by phone with the sender.

This way mistakes are avoided and the closing goes smoothly even after.

We encourage you to always double check information when it comes to transferring money. If you have any questions email us or give us a call here at the office, we are here to help.

How To Have a Smooth Real Estate Closing

Young woman is signing financial contract with male realtor. Close-up.

Today we are going to talk about how to have a smooth real estate closing.  We want to try and help make your real estate transaction that much more convenient when it comes time to close.

The closing process can be a nightmare with all the paperwork involved and tasks to work through. As everybody knows, we’re all busy, we’re all short on time and it can be a very time consuming process to take time out of our work day to travel to either your real estate lawyers office or the title company’s office to finalize and close your real estate transaction. This causes unneeded stress and can even cause delays in the finalizing of your real estate transaction. That is a headache for all parties involved.

Closing and finalizing on your real estate transaction doesn’t have to be a nightmare though. Alvarez Barbara, LLP, is happy to provide convenience at the closing table.

We will perform a mail away closing. We will send a mobile closer to you.

We will work around your busy schedule to make sure the execution of documents necessary to effectuate your real estate transaction is not something that is going to take you the whole day and require that you drive across town to complete.

We believe in streamlining the closing process for you. That way there there are no delays in your transaction.  And all the parties can leave the closing table happy, satisfied and without headaches.

We’ll come to you and do everything we can to make your real estate transaction move as smoothly as possible. We’ll help you make it that much better of a day.

If you have questions about your real estate deal, feel free to give us a call or email us.  We’re here to help.

Why you MUST Hire A Real Estate Professional

Realtor analyzing financial planning of a house at office

Today we are going to discuss Why you MUST Hire A Real Estate Professional.  It is important to hire the right professional to get you through your real estate transaction. This is one of the most important aspects of real estate selling and purchasing, and it shouldn’t be overlooked because without the right professional attention you could be in for a world of unnecessary stress.

The right professional selection starts with the right agent.

If you’re a buyer I have good news for you. Buyers spend zero dollars hiring top quality agents because sellers pay commission.

And if you’re a seller and you’re thinking, “I want to sell ‘by owner’ because I want to save my money”, I’ve got news for you. You never save money, but you will increase stress.

Too many sellers come to our law firm overwhelmed at the process that goes into selling real estate on their own.

If you hire a top quality real estate agent as a seller, you’re more likely to get more money for your property, thereby offsetting the cost of that agent and potentially pocketing a significantly larger sum from your sell.

Not to mention the savings of hassle and what you get in peace of mind are enough to make you second guess selling on your own once you experience the hassle and problems that a seller may face when selling “by owner.”

Therefore, the importance of selecting the right real estate agent cannot be over stressed.

Start the transaction right.  End the transaction right and find a quality real estate agent for your real estate transaction. If you have questions about your real estate deal, feel free to give us a call or email us, we’re here to help.

Don’t Be Spoofed!

Internet TheftDon’t be spoofed!  You’ve read the warnings: “Don’t wire funds in response to an email without using call-back procedures!” In other words, call the party who appears to have sent the email at a known, safe phone number and confirm that they actually sent the email. Well, what happens if you receive a phone call from your intended funds recipient, asking that you wire the funds? To be safe, you should check your caller ID screen and match it to the known, safe number in your file. You should even request an email confirming the instructions, and make sure you receive it.

Are you good to wire? NO.

Fraudsters and thieves are utilizing prepaid “burner” phones and applications that will “spoof” the caller ID of any phone number the caller chooses – even valid phone numbers of actual businesses.

This fraud scheme is rampant – our industry is not the only target.

These spoofing apps advertise themselves as a tool to “prank your friends,” but they are actually being used by criminals posing as entities such as taxing authorities, local bank branches and utility companies to defraud companies and consumers into sending money or providing confidential Non-public Personal Information (NPI).

How does this impact real estate closings? Fraudsters have quickly learned that responsible professionals have begun utilizing call-back procedures to validate and verify emails regarding wiring of funds.  Therefore, the fraudsters have begun calling with spoofed caller IDs in order to circumvent protective practices and procedures.

DON’T GET SPOOFED! An incoming phone call never takes the place of an outgoing confirmatory call before wiring funds.

Buyers Beware of Buying Foreclosures

homestead exemptionForeclosures only seem like good deals today.  But if you’re going to buy a property being foreclosed then you really need to know what you’re getting. Therefore, buyers beware of buying foreclosures.  That’s why it is critical for buyers to perform all of the necessary due diligence prior to purchasing a foreclosed property.  As part of your due diligence, it is vital to have a home inspection performed by a qualified reputable home inspector. This way you’re going to know what you’re buying.  You need to get that home inspection performed on time so you can make an educated decision about the transaction.

The importance of knowing what you are buying cannot be overstated.

It happens every day where potential property owners fall into a trap.  The trap is when they believe in a property’s potential without consulting a qualified home inspector. They rush through the transaction thinking they are going to make a “quick buck” by flipping the foreclosed property, or they may just want to buy a cheap fixer-upper to make their dream home or office space.

Whatever the case may be, what inevitably happens most of the time is the buyer just purchased a bigger problem than they realized.  The property may require a lot of repairs, or worse a property that is condemned.

Of course, there may also be problems with the chain of title.  The foreclosure may not have been conducted properly by the foreclosing party which may mean that the buyer does not even own the property properly.  That would invariably result in additional litigation to clean up the chain of title and ownership rights.

Therefore, it cannot be stressed enough that if you want to make a successful foreclosure purchase here in Miami, take the time and effort to find a reputable home inspector that you can trust. Spend the money on hiring the necessary professionals to perform all the necessary searches and engage in the necessary due diligence to learn as much about the property as you possibly can.

Remember, buying a foreclosure is only a good deal when you take the appropriate steps to ensure that the property you are buying is worth the money and effort required.  Do not hesitate to contact us should you wish to discuss further.

Harp 2.0 Mortgage Refinance Real Estate Option

re-finance 00zzToday we want to talk to you about the Harp 2.0 refinance real estate option that could save you lots of money. The Home Affordable Refinance Program or Harp 2.0 is a government program that allows home owners of both primary residence and investment properties to refinance their properties and take advantage of some of the very attractive low interest rates that are present today. It was started by Federal Housing Finance Agency to help those homeowners who were drowning in debt by refinancing, even if they owed more than what the house is worth. Please be aware that this government program expires in 2017, so if you are interested in refinancing your property it’s something you should take advantage of now. Some of the requirements to be eligible for HARP 2.0 are that you had to have sold your mortgage to either Fannie Mae or Freddie Mac by June 1, 2009.

You must have no late payments in the last 6 months, no less than 1 late payment in the past 12 months, you must be up to your current mortgage payment along and this must be your first refinance through HARP.

Along with the HARP eligibility requirements, lenders may have their own. Lenders require you to provide proof of income, and some even require a minimum credit score to qualify. Many banks like Bank of America, Chase and Wells Fargo are experience delays in the application process due to the sheer volume of applications. So as I have said before, if this is an attractive option for you, you will want to start the process immediately.

If you have any questions about Harp 2.0 please feel free to email or call our office and we will be happy to explain it to you further.

Top 3 Reasons You Need A Real Estate Lawyer For Your Real Estate Transaction

Real Estate TransactionOur firm handles real estate closings. We’ve been doing them now for over ten years. A real estate closing is the final step of a negotiated contract to transfer real property from the seller to the buyer.  With that in mind, we are frequently asked, “do I need a lawyer for my real estate transaction?”  The answer to that question is no, you don’t need a lawyer. But you should have a lawyer, on your side, representing you, and looking out for your best interests. Having a lawyer is important because the lawyer will typically have the experience and the knowledge necessary to properly navigate your real estate transaction. With that said, here are the top 3 reasons you need a real estate lawyer for your real estate transaction.

1) OBSTACLES

You may run into obstacles that could bring your real estate transaction to a halt.  Having the right professional will help to ease those tense situations, and work through those obstacles.  On the other hand, you can certainly try and do it all yourself.  But in this world, we should probably stick to what we know and do best. Still, if you are set on performing a transaction without a lawyer, we would suggest at least talking to some real estate lawyers and getting their opinion on your real estate transaction.  Even if it is for a quick five-minute meeting.

2) COSTS

You may think the cost involved in hiring a professional is too high.  You may also think that by hiring an expert that there is an extra layer of hassle on top of the added costs.  And all of that may be true.  But making decisions by trying to save some money in the short run may end up costing you a lot of money in the long run.  Plus, the hassle and aggravation will grow too.  You are better off hiring a real estate professional early to deal with all the issues in advance before the they grow into larger and more expenses problems for you.  Here are some additional tips to save money on closing costs.

3) PEACE OF MIND

By hiring a real estate attorney you are buying peace of mind.  You’re buying a solution. You’re buying yourself the safest and smoothest possible transaction and solutions to problems that arise.

The importance of hiring the right professional cannot be overstated.

In a real estate transaction, you should have a lawyer to represent your interests.

If you have any questions about your transaction, then please feel free to contact us.

We’re here to help.

Common Forms of Vesting Residential Ownership

Skyline of Miami, Florida, USA at Brickell Key and Miami River.

Prior to a real estate closing, we are often asked, “how should I take title to the property I am buying.”  Consequently, we shall discuss the common forms of vesting residential ownership that every buyer should be aware of prior to completing their real estate transaction.

Because real estate property is among the most valuable of assets, the question of how parties take ownership of their property is of great importance.  The form of ownership taken (the vesting of title) will determine who may sign various documents involving the property and the future rights of the parties in the transaction.

These rights involve matters, including, but not limited to, real property taxes, income taxes, inheritance and gift taxes, transferability of title and exposure to creditor’s claims.  The vesting form may also have significant probate implications in the event of death.  Therefore, you should consult with one of our attorneys to discuss the appropriate way to hold title.  Nonetheless, here is an overview of some of the most common forms of title recognized in Florida:

Tenancy in Common.  Title held by two or more people.  Each has an undivided interest in the property and share equal rights to use the property, despite any inequality in their interests.  No right of survivorships exists.  Individual tenants in common may sell or will their interests without participation or agreement by co-tenants.  Upon death of co-tenant, probate of the estate is generally required to transfer the interest.

Joint Tenancy.  Each tenant owns an undivided interest, with equal rights to use the entire property.  The interests must be equal and each tenant has a right of survivorship.  Upon death of a tenant, the interest passes automatically to the survivor.

Tenancy by the Entirety.  Joint ownership of title spouses in which both have the right to the entire property.  Upon death of one, title passes automatically to the survivor (right of survivorship.)

Trustees of a Trust.  A trust is an arrangement in which legal title to property is transferred by a grantor to a trustee, to be held and managed by the trustee for the benefit of beneficiaries named in the trust.  Most residential titles are not held in entity names.  However, title to real property may also be vested in a corporation, parternship, or limited liability company.