We’ve all been there: The lease on your current place is about to end and you have to decide whether to agree to another lease or try to find a new place to live. Occasionally, a landlord will ask to know your intentions before the lease term is over, and taking too long to decide could cost you money.

However, this may not be enforceable. In general, fines and penalties are the business of government, not private contracts. However, there may have been a clause in the lease that you signed saying that you agreed to pay a set amount if you did not provide enough notice to the landlord as to your intentions.

This is a situation where it is very helpful to have an attorney go over your specific lease and review the language contained therein. Since there is no state law about providing adequate notice of rental intentions, it will come down to the language contained in the contract you signed. And even if you did sign a lease with such a clause, the wording still matters. If it is described as a “fine,” then it may be unenforceable, since that would be an “unconscionable lease provision” according to Florida statute.

Typically a landlord can do nearly anything they want as long as the tenant agreed to it in the lease, but leveeing a fine or penalty for inadequate notice is not allowed. Again, be sure to consult with an experienced attorney to review your specific situation and lease terms.

Stephen K. Hachey, a Florida real estate attorney can help your wade through this difficult process and determine a positive solution. Contact him at 813-549-0096. The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

Though filing a Chapter 7 bankruptcy can improve an individual’s creditworthiness and even allow them to outright keep ownership of certain exempt property, it is not often a cure for upside down debt on a home. Generally, borrowers must endure a minimum “seasoning” period before lenders are willing to strike a deal on a new loan. For FHA financing, that seasoning period is a minimum of two years after the date of the discharge—in addition to whatever amount of time is required by the new lender, before the borrower can successfully apply for a new home loan. That means that your best bet at qualifying for an FHA loan after a discharge is to resolve the debt on your previous property.

Though a chapter 7 is designed to help insolvent borrowers reestablish creditworthiness and get their financial health back on track, it does not automatically get them off the hook. That’s because, while personal liability for the debt on your mortgage was discharged in the bankruptcy, the mortgage lien on the property remains very much alive. Because your name is on the title to the property, new lenders are unlikely to extend a hand before the lien on the property is resolved.

A chapter 7 filing will not simply erase your debt; if you’ve been discharged a mortgage in bankruptcy proceedings, being proactive and eliminating your role with the property lien is imperative. Additionally, credit reporting mistakes are very common after a bankruptcy, which makes attaining a good credit rating and qualifying for a new loan all the more difficult. The most effective way to rid yourself of the upside down property and save your credit is to pursue a short sale and move on. Be proactive and review your credit report for discrepancies and discuss your options with your bankruptcy attorney.

Stephen K. Hachey, a Florida real estate attorney can help your wade through this difficult process and determine a positive solution. Contact him at 813-549-0096. The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

The State of Florida has no rent control provisions, meaning that landlords are free to charge whatever amount they would like for rent. The only control on how much they can charge is the availability of people willing to pay that price. Economists sometimes refer to this as charging “whatever the market can bear.”

Now, if you have a written lease agreement, then that document might stipulate time frames for notices to be given. It could say that the landlord must give you a certain amount of notice for any changes to the lease agreement prior to renewal, just as you must give a certain amount of notice if you do not intend to continue leasing the property.

Typically, landlords will give around 30 days’ notice if they intend to change any terms of the lease for the next period, including rent increases. However, as far a state law is concerned, the landlord is not obligated to inform you of his or her plans to raise the amount of rent charged for the next lease term. As always, we recommend having an experienced attorney review your specific documents and situation to determine your best course of action.

Ideally, the relationship between landlord and tenant is open, honest, and communicative, but this is often not the case. If you are experiencing difficulties with your rental situation, be sure to contact an attorney who will fight for your rights and ensure that your best interests are taken into account.

Stephen K. Hachey, a Florida real estate attorney can help your wade through this difficult process and determine a positive solution. Contact him at 813-549-0096. The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

Even if you’ve filed bankruptcy and moved out of your home, your name remains on the property title. Moreover, mortgage liens are generally not discharged in a chapter 13 bankruptcy. Unfortunately, you will remain the owner of record until your lender forecloses or you take the necessary steps to remove yourself from the title. A deed in lieu or a short sale is your best bet at eliminating your name from the title and avoiding significant damage to your credit in a bank foreclosure.

A deed in lieu allows you to convey all interest in the property back to your lender, satisfying the loan and allowing you to circumvent the catastrophic effects foreclosure proceedings can have on your credit report. In a short sale, the proceeds from the sale fall short of the balance owed. Like a deed in lieu, a short sale can help you avoid foreclosure and release you from the property lien. Neither option involves an additional expense and will give you an opportunity to regain some control over what happens next.

Though filing for bankruptcy will delay the foreclosure process, the bankruptcy proceedings do not pay off the mortgage nor does it offer protection from foreclosure. But while things may seem grim, the good news is your home hasn’t foreclosed yet. This gives you an opportunity to proactively seek approval from the trustee, pursue a short sale or deed in lieu and rid yourself of the property for good. Lenders are often willing to work with underwater borrowers looking for alternatives; consult with an experienced foreclosure attorney and explore your options.

Stephen K. Hachey, a Florida real estate attorney can help your wade through this difficult process and determine a positive solution. Contact him at 813-549-0096. The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.

This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

A lender files a 1099-C with the IRS when they release the debtor from liability or otherwise waive a borrower’s deficiency judgment. If you received a 1099-C from your mortgage company, then you should not owe a deficiency judgment on the corresponding debt. But when it comes to Florida foreclosures, things can get a bit convoluted as foreclosure actions are typically filed by the truckload, in a factory-like settings; an environment in which unfortunate blunders are easily made.

A 1099-C is most often seen in short sales or a deed in lieu of foreclosure—both are instances in which the lender typically cancels the balance remaining on the debt. In a short sale, for example, your lender agrees to settle the debt on the property for less than what they’re owed. However, debt relief (with few exceptions) is considered taxable income and must be reported to the IRS. Come tax season, your lender is allowed to write off your settlement as a loss, so once the short sale transaction is complete, your lender will send you a 1099-C affirming the amount written-off in the settlement. You would then report that amount as income when filing your tax return for the tax year in which that debt was settled. That should, for all intents and purposes, be the end of it.

In essence the 1099-C you received from your lender is an agreement which states your mortgage company will not pursue the remaining balance on your debt. If you have documentation stating your deficiency was waived, then you have a solid defense against collection efforts. It is very plausible that your lender simply made a mistake. Nevertheless it is important to take action and contact an experienced foreclosure attorney immediately in order to guarantee your interests are being protected.

This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

Going through the foreclosure process is an extremely stressful situation. Nevertheless, banks have a reputation of dragging the process out. How long is an “unreasonable” amount of time, according to the state of Florida? Unfortunately, a common belief is that many Florida courts are unkind to borrowers; courts are not out to help you in this situation. However, there are laws and procedures specifically designed to protect our civil rights, and knowing those laws will help in these kinds of situations.

Under Florida Rule of Civil Procedure 1.420 (e), if it’s been 10 months or more without any filings in a case, then the defendant can file a Notice of Intent to Dismiss. If there is nothing filed within 60 days of that, the defendant can file a Motion to Dismiss for lack of prosecution. At this point, it won’t be easy for the prosecution to overturn the motions. They must show “good cause” why the case should remain pending, and that isn’t easy to provide. If the case has come this far, it’s reasonable to believe that the plaintiff has either forgotten about the case or simply doesn’t consider it wise to continue spending money on the case.

The defendant should know how to protect themselves in this circumstance. As previously mentioned, there are civil rights for a reason. Nobody has the right to take civil rights away, and, as always, an attorney is certainly the best option in this case. In certain circumstances, attorneys can find out if the judgment can be retracted. Additionally, an attorney will likely be able to represent the needs of the defendant  much more clearly than the defendant themselves.

This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

“Do I still owe HOA fees after my foreclosure sale?” It seems like owing fees after ownership has been transferred would be grossly unethical, if not illegal, but is this the case? The short answer is “yes”. However, this answer deserves a more detailed explanation. Broadly defined, Homeowner’s associations are put in place to improve the neighborhood. The association commonly manages committees such as a “pool committee”, a “neighborhood watch committee”, an “architectural control committee”, and more. An HOA can certainly make the neighborhood more pleasant and safe, but when loopholes fall through the cracks, it can be more of a curse than a blessing.

Being part of an HOA means there will most likely be a neighborhood watch committee to protect the neighborhood from vandalism, crime, and trespassers. There is, however, a price to pay. Each home within the limits of the HOA has to pay the HOA fees. Do you still have to pay the fees? If the property is bought by the lender, its responsibility is limited to 12 month assessments or 1% of the loan amount, whichever is less. If it’s purchased by a third party, the third party is obligated to pay the full amount, just like you were. Be that as it may, The third party purchaser can seek reimbursement from you for those fees.

If this seems unfair to you, prepare yourself, as It only goes downhill from here. In the state of Florida, banks have 20 years to process a foreclosure finding. Normally, this wouldn’t seem to be much of an issue. However, some borrowers who paid homeowners association fees will be responsible for the charges while the bank completes the foreclosure  process and takes ownership of the property. In a case like this, the best decision you could make is to consult a foreclosure or a bankruptcy attorney for guidance on the issue.

Stephen K. Hachey, a Florida real estate attorney can help your wade through this difficult process and determine a positive solution. Contact him at 813-549-0096.

The opinions in this post are solely those of the author. The author takes full responsibility for the content. Like all blog posts, this is offered for general information purposes and does not constitute legal advice.
This post was written by Stephen Hachey. Follow Stephen on Google, Facebook, Twitter & Linkedin.

Is “phantom income” taxable if the property was homesteaded by the owner? This is shaky ground. Some people attempt to discover the answer to this question on a state-to-state basis, but in fact, it’s covered in The Mortgage Forgiveness And Debt Relief Act. Sometimes it feels like the IRS is out to get everything we own. Having a little assurance that we’re not being cheated is absolutely necessary in today’s economy.  To have a little background on this, let’s explore the actual meaning of this ambiguous question.

Broadly defined, the Homestead exemption allows homeowners to protect their principal residence from creditors or property taxes. This is, of course, the broadest definition of the term, but it will serve our purposes. How is it legal for the IRS to collect tax on homesteaded property? Additionally, How can a person legally be taxed for an amount of money that was never physically received? These are valid questions.

According to The Mortgage Forgiveness And Debt Relief Act, the money was not taxable when first issued because there was an obligation to repay the lender; it wasn’t “income”. If the loan is forgiven, it’s an amount that was received but did not have to be paid back. That’s when forgiven debt crosses the line into “taxable income” territory. The money was never received, regardless of the value of the property. Since the margin between the value of the property and the price paid got wider, it could be viewed as equity.

It might feel like we’re being cheated every time we turn around, but if you take a closer look, you’ll see that the advantages greatly outweigh the disadvantages. Let’s say, hypothetically, that the IRS is attempting to collect taxes on forgiven debt in the amount of $14,000. If the outcome is unsatisfactory, there’s always the option of selling the property for its retail price and putting that $14,000 in your pocket. The transaction might not yield any cash, but it certainly improved your net worth.
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