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Boomer Prenups – Sign Now or Forever Hold Your Peace!

Baby Boomers are increasingly deciding to enter into prenuptial agreements prior to marriage to protect and manage their assets should they part ways through divorce.

What is a Prenuptial Agreement? It is a legal document that establishes in advance how property, assets acquired or received by gift during a marriage and family heirlooms passed from family members to one of the parties will be owned or divided in the event the couple should part ways.

Prenuptial Agreements have become very popular with Baby Boomers (born between 1946-1964) since they have on the average accumulated more money and assets and can afford to pay for adequate protection. Since 2006, 80% of Family Law Attorneys have seen a marked increase in couples who sign prenups, according to a survey sponsored by the Matrimonial Lawyers Group.

In the current financial crisis, with a 31% drop in home values and a 53% drop in stock portfolios, Boomers have been hit the hardest, which has accelerated the trend. Boomers have therefore become more cautious in holding on to their remaining current assets.  Boomers are also blending homes and corresponding obligations. Prenups are becoming the Estate Planning Tool of the future!

Given Boomer age ranges, they are more likely to have been married and divorced multiple times.  4 out of 10 Boomers have experienced a divorce and by their 50th birthday, 27% have moved on to a second or third marriage.

So When Should Boomer Couples Consider Having A Prenup?

1. When significant assets are involved such as a home & property, retirement funds, stocks and bonds, or liquid assets.
2. When there are children of a previous marriage. The children’s interest, past and future, need protection since most states by law give the surviving spouse up to half of the estate.
3. When one spouse owns all or part of a business.
4. When one spouse is much wealthier than the other spouse.
5. When one spouse is much older than the other spouse.
6. When one spouse is supporting the other while he or she attain an educational degree.
7. When there is an inheritance involved.

When both spouses feel that the possibility of a divorce and expenses related to it are a bad idea and wish for a premarital binding understanding, what should they do?

1. Hire a qualified lawyer to prepare a fair and binding agreement according to their wishes and needs.
2. Make full disclosure of all property, financial accounts, debts, and assets involved.
3. Comply with requisite state laws.

If one acknowledges that nearly half of all marriages end in divorce, a prenuptial agreement can avoid a number of unnecessary expenses, reduce attorney fees, and avoid state mandated arbitrary divisions.

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Foreclosures in Texas – Can I Save My Home?

Amidst the Government’s halt on foreclosures, Bank of America has stopped seizing foreclosed homes in all 50 states, but is continuing to sell homes that have already been foreclosed on and is still processing new foreclosures. 

Outside the major banks and even in states that do require a judge to look over the bank’s shoulder, foreclosures are going forward at a head-spinning pace.  The nation’s regrettable mortgage crisis continues.  One million residences have fallen into foreclosure since 2006 and an additional 5.9 million are expected over the next four years.  Lenders and investors will have to acknowledge huge losses and try to figure out how to keep borrowers making at least some monthly payments. 

However, when the housing disaster ends, the lenders’ contention that they have done as much as possible to limit foreclosures and follow appropriate laws in doing so is hollow at best.  The industry simply has not stepped up to address the volume of the problem.  And as the crisis moves forward, more people are falling through the cracks.

For lenders and loan servicers, civil lawsuits claiming deceptive sales practices or violations of consumer protection laws are becoming more prevalent as foreclosures grow in numbers.  The Mortgage Electronic Registration System, which was created to handle mortgage transfers between member banks, is facing its own legal problems.  A lawsuit filed on Sept. 28 in federal court on behalf of Kentucky homeowners claims that MERS was part of a conspiracy to create false promissory notes, affidavits, and mortgage assignments to be used in mortgage foreclosures.  Similar class action suits have been filed in Florida and New York. 

Title insurers will also be in court bringing and defending lawsuits.  The insurers will be going after banks or whoever has assured them there was a clear title.  The costs for title insurers to defend customers and reimburse for lost properties rose 14 percent, to $480.5 million in 2010’s first half. 

Persons buying homes in foreclosure are facing their own worries as paperwork errors raise question about the validity of the titles needed to prove ownership.  Defective documentation has created millions of blotched titles that will plague the nation for the next decade. 

Meanwhile, as public outrage continues to mount, many homeowners are reclaiming their homes through the Courts.

In general, Judges are unlikely to look favorably on a bank that claims paperwork flaws do not matter because the borrower was in default on the loan.  There must be some integrity in the foreclosure process and the conduct of lenders pursuing their right under loan documents.

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By All Means – Stop the Foreclosures (Part II)

Being forced to move from one’s home because one can no longer afford to make the payments is a problem devastating thousands of families throughout the United States in today’s tough economy.  Borrowers whose equity has evaporated in the struggling economy have little or no excess funds to use to save their homes.  Mortgagees have turned to the banks for assistance with home loan modifications and refinances as an alternative to the unavoidable humiliation and financial disaster resulting in a foreclosure, making it difficult – if not impossible – for them to maintain or acquire a new home mortgage for years after. 

How bad is it?  RealtyTrac, the online foreclosure listing service, reports that during the three summer months, the number of default notices, scheduled auctions of foreclosed homes and bank repossessions climbed to 930,437, up by nearly 4 percent from the previous quarter. During this period, one in every 139 houses in the United States received a foreclosure filing.  Foreclosures in the United States grew 21% in 2009.  At this time, there is no set number for 2010; however, one can bet it will be a daunting figure.

Foreclosures involve documents that must be properly submitted before the actual foreclosure can proceed legally. Homeowners, lawyers and analysts have been citing problems with foreclosure documentation for the last few years, but it appears to have reached such intensity recently that banks are beginning to re-examine whether the foreclosure papers are being prepared properly and whether homeowners are receiving proper statutory notice prior to foreclosures.

Today it is not uncommon for the original note and deed of trust signed by the parties to be sold to a mortgage servicer who does not maintain the original signed documents on-site.  A deed of trust contains specific foreclosure language and procedures that must be followed in the event of a default.  The servicer therefore has no clue as to what notices may exist in the note and deed of trust.

One of the leading culprits of the foreclosure crisis is a lack of communication within the banks themselves.  While the loan modification department begins working with mortgagees to refinance and/or modify their existing loan, the delinquent loan is forwarded to the foreclosure department to initiate foreclosure proceedings.  In some cases the home mortgagees are told to stop making payments so their loan will become “toxic.”  They are led to believe that this will assist with the modification being pushed through.  Unfortunately, by the time these families find out that they do not qualify for the loan modification, the home is already set on the foreclosure block or sold without proper notice to the homeowner.

Lawyers are discovering documents signed by Lender employees who say they have not verified crucial information such as the amounts owed by homeowners. Other problems involve questionable legal notarization of documents, in which, for example, the notarizations predate the actual preparation of documents — suggesting that signatures were never actually reviewed by a notary.  Affidavits are placed on foreclosure documents that swear to the accuracy of the foreclosure proceeding even though the procedures stated have not been followed.  Frequently the “affiant” has no personal knowledge when the affidavits are signed.

Other problems occur when notarizations take place so far from where the documents were signed that it was highly unlikely that the notaries witnessed the signings, as the law requires.

On still other important documents, a single official’s name is signed in such radically different ways that some appear to be forgeries. Additional problems have emerged when multiple banks have all argued that they have the right to foreclose on the same property, a result of a murky trail of documentation and ownership.

The sad shame of it all is that the industry that helped create the home mortgage crisis, is now feeding the crisis through bad business practices.  Many believe the foreclosure crisis is having a ripple effect, a drop in city revenues, a spike in crime, more homeless and vacant properties.  Cities are cutting revenues.

If you have received notice of foreclosure or you believe that your home has been improperly foreclosed on, contact counsel immediately.  It is far easier, more effective and less costly to stop a foreclosure from taking place before the fact than it is to reverse a foreclosure after the fact.

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