Wills and Trusts by Spokane Estate Planning Attorney Steven Schneider

FAMILIES ARE IMPORTANT TO US.  THAT’S WHY WE’RE

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A Happy Will, A Happy Family

 What is a will? Part One.

  1. A document to keep the kids from each other’s throats and never speaking to each other as long as they live? YES!
  2. A signed piece of paper that can help you and your loved ones reduce or avoid estate taxes? YES!
  3. A loving instrument that gives your estate to your loved ones, schools and charities that have meant the most to you during your life. Triple YES!

In this blog I want to focus on the first question listed above. Your Estate Planning documents, including a will can strengthen your family after you’re gone or break it apart for ever. It’s not only how thoughtfully you divvy everything up, but the tone of voice in which it is written.

A thoughtfully written document takes into account that everyone wants the items that bring the fondest memories, and that one child, for various reasons, may feel they deserve more than the others. Bear in mind that childhood rivalries and longstanding family dynamics may only increase after you are gone. And let’s face it, Mom always did like you best!

I have had clients who insisted on getting one last poke at their good-for nothing-kids. “To Judy who has ignored me for 20 years, I give nothing. To Randall who married that tart even though I told him not to, I give nothing.” Please resist this kind of commentary in your will.

You may have your reasons for giving Billy the house and Sally the jewels, or grandchild A the money for college and grandchild B the money for tech school, but, unless there is a compelling reason, making the distribution as even as possible helps preserve family relationships. A trust fund for a developmentally disabled child, or keeping money away from a heroin addict or person with a gambling problem, is understood. Otherwise, unless everything is distributed evenly, your decisions may bring a measure of animosity and hurt between family members.

If there are special considerations, or if you want to give everything to charity like Warren Buffet, show everyone your will before you die. It seems Mr. Buffet put his last wishes in a press release and sent it to the media.

Also, if you name one child as executor (the “responsible” one) there’s a great possibility that the other members of the family will be resentful, again based on past family dynamics. As I help families sort things out after the death of a loved one, I’ve seen several sue each other until all the assets of the estate are spent on attorney fees and court costs. Other predictable problems arise with step parents and step children.

So, let’s consider options that may keep your family from becoming estranged after your death. In addition to an even distribution, one way to preserve peace among the survivors is to appoint someone outside of the family as executor. This may be a family friend, family attorney, or a more remote relative, someone unswayable. If the estate is large, a bank trust department or a paid professional may be the best choice. For a professional, it will only be a job to get the assets dispersed as quickly as possible. You can arrange for this professional to be paid a set price from the assets after death. The best thing about a paid executor is that your family can get as mad at them as they need to without turning on each other.

Another extremely important consideration is to keep your will updated. Kids grow up and grandkids appear before you know it. A child may pre-decease you. New property may be acquired with a new spouse. All of these situations will not be covered directly in an old will. Various statutes will then take over and fill in the gaps, not necessarily as you would like. For example if you don’t state what happens when a beneficiary pre-deceases you, a statute gives it to their children automatically. Update your estate planning documents to avoid unintended results.

It’s unbelievable how spectacularly your wishes can get all screwed up. Johnny wants to buy half of the family farm, but only wants the portion that would basically make the rest of the property unmarketable. AND…..he can’t understand why Mary doesn’t love him enough to grant that request.  Mary wants all the furniture that has been in said farm and doesn‘t feel she needs to pay the estate anything for it because, after all, she dusted it for twenty years while she was growing up. In my practice I have encountered the above problems and much, much more.

Money can be fairly easy to divide, but items of sentiment are not. Furniture, jewelry, silver (usually everything besides clothing) can be difficult. This is why many professionals advise that all items are priced and the amount of the item is deducted from the beneficiary’s cash portion of the estate. Some people make a list of the sentimental items and designate the receiving family member. This list is allowed to be changed without the formalities of making a will.

Before you throw your hands up in disgust, read this. Thoughtful, loving wills and trusts can avoid most disagreements. Since every family is unique, I have many other suggestions and ideas on this subject that I would love to share with you. I encourage you to make your will now by contacting me at Steven Schneider, Attorney at Law at (509) 838-4458 or SS@StevenSchneiderLaw.com. For more information, visit www.StevenSchneiderLaw.com.

Spokane Bankruptcy Attorney Sings Country Songs

How is Bankruptcy Like a Country Song Played Backwards?

You get your house back, your truck back, your money back, your dog back……

Bankruptcy is not just a last resort for the hopelessly indebted. In fact, bankruptcy is a right given to U.S. citizens in Section 8 of the Constitution, since 1787. Bankruptcy is as American as apple pie and country music. The intent of the bankruptcy laws, as stated by Congress, is to give debtors a “fresh start.” Bankruptcy also provides a predictable way for bad debts to be written off by businesses and for debt free consumers to once again participate in the economy and pay taxes. And bankruptcy is not just for cancelling debts and liquidation of assets. It is possible to keep a house while paying back payments over time. The same is true for a vehicle.

In some cases, a good lawyer can get the auto debt reduced to the actual value of the vehicle and lower the monthly payments required to keep the vehicle. Wages that have been garnished may also be retrieved. You can even get your suspended driver’s license back by paying traffic fines through a Chapter 13 Plan. To sum it up, you could get your house, car, garnished wages, suspended drivers license back and a fresh start by calling an experienced Spokane Bankruptcy Attorney. 

Being relieved of high monthly credit card payments as well as collection agency calls can get you your life back. All of this will improve your quality of life, help you sleep at night, and give you a brighter, more optimistic personality.  Like Taylor Swift and Blake Shelton.  As a Spokane Bankruptcy Attorney, I see good people—just like you— get good results every day.

Spokane Bankruptcy Attorney girl guitar country

Affordable Legal Services for Christmas

Gift Certificates for Legal Services?

This may sound like a crazy idea at Christmas but we all know people (all year long) that could use a half hour with an attorney to gain peace of mind and a path forward in their lives. This may be a compassionate gift for someone in need and could at least start the process without a heavy handed “intervention.”

It has been documented, and we see this in practice, that people wait until after the holidays to make big personal decisions like bankruptcy, separation and divorce as well as whether or not to sue over a business deal.  It is also true that when the Christmas bills come in January, the financial situation of a family becomes apparent.

Legal Services as a Christmas Gift

Legal Services in an Hour or Less Can Provide a Lot of Information

Typical uses for such pre-paid services are bankruptcy, collection defense, foreclosure defense, garnishments, family law matters including anti-harassment orders and changes in child custody and support and even small business matters like lease defaults, creditor liens and contract disputes. A short visit with an experienced attorney on any of these issues will cost between $125.00 and $250.00 and provide a lot of information that will help the client understand their current problem and make a plan to resolve matters.

Prepaid Legal Services for Christmas, What You Need to Know

There are some issues for attorneys in providing such “prepaid legal services” but these are not unusual.  Whenever someone other than the client  pays for legal services the confidential attorney-client relationship is created with the client, not the person who pays.  This means that the person who pays for the services may not be able to monitor how the services are used directly. A person receiving such a gift however, may be more likely to use it if it is confidential.

While prepaid legal services may not be a suitable gift to find under the tree, it may be a welcome and compassionate alternative.

Contact Steven Schneider at: (509) 838-4458 to discuss the particular legal situation of the person you have in mind to receive such a gift.  He can give you an overview of solutions and costs that can help with your loved one’s legal problem.

 

Don’t Get Bit By Flipper Flipping Houses

Flipping Houses

Picture of a dolphin for a blog on flipping houses

It seems like every bad idea gets discovered by a new generation of hucksters and marks. Wherever there is a buyer’s market in real estate flipping houses becomes popular and very well may work for the flipper in some cases. 

There is usually a distressed property that is on the verge of foreclosure or has some defects that prevent sale at full market price.  The flipper buys the house for a discount and then puts the minimum of superficial work into it required to sell at a profit. If the market is hit just right the profit may be substantial.

Flipping the Property Condition Disclosure Checklist

This may however, turn into a nightmare for the buyer as well as the flipper. The State of Washington requires a seller to complete a Property Condition Disclosure checklist and provide it to the buyer before the sale is completed. Any defects or hazardous conditions known to the seller must be disclosed.

Further, even knowledge of a small defect, such as a spongy floor, will make that seller liable for anything investigation of that defect would reveal, such as extensive dry rot or mold.  The flipper may become liable for any undisclosed defects at the cost required to return the property to the value at which it was purchased.

How Do You Know If You’re Dealing With a Flipper?

An obvious tip off is length of ownership. This information can be obtained from the county assessor’s or auditor’s office.  If the house has only been owned for a short time, pay extra attention to its condition.

A buyer should also have a house inspected by a professional home inspector before buying.  Any extensive new sufaces such as paint, wall paper, drywall or flooring, may be hiding a deeper defect.  Be sure to test all fixtures, appliances, plumbing, heating and electricity before buying.  In older  homes it is especially important to know whether knob and tube elecrical wiring, lead pipe or asbestos will make it difficult to insure or require additional work to sell with FHA or VA financing.

The lack of a real estate agent and a closing agent and seller financing on a real estate contract may also be worrisome, especially if a large down payment is required.  Lack of a title insurance policy is a red flag that should never be acceptable in a legitimate transaction.

Even work done without a permit may be a clue.  You can check the permit file at the City or County office of building and planning. Unpermitted work may also result in an inability to qualify for FHA or VA financing.

If The Deal Is Too Good, It’s Too Good

Remember that a too good to be true deal probably is, especially in a changing market.  Take your time and do your homework, including hiring a professional inspector.  Don’t get in a hurry or you might get bit by that smiling flipper.  An attorney can help you sort through these issues including research into title records, assessor’s and building permit records, as well as monitoring the sale to be sure the proper documentation is used and all transaction taxes and real property taxes are paid paid in closing.

Adverse Possession – Get Off My Lawn Part 2

In Where Get Off My Lawn Becomes Get Off My Dock – More On Adverse Possession

Adverse possession know your rights

Image courtesy of Photokanok / FreeDigitalPhotos.net

When your neighbor at the lake puts his dock in your square foot of second class shore land the gauntlet is seriously thrown down. Then he’ll build an addition to block your view, shine his porch light in your bedroom window, and fill your locks with glue.  This was the case with Green v. Hooper, where the case was further complicated by conflicting surveys.  There are two accepted methods of extending boundary lines into shore land.  One simply extends the line on the same bearing over the shoreline.  Another method is however, used to account for curving shorelines.  In that method, the lines are drawn to the center of an arc created by the natural curve.  When and how these methods are used may represent a difference of opinion between surveyors and experts at trial.  In the case of Green v. Hooper, the alleged encroachment was minimal, but the case cost hundreds of thousands of dollars to resolve.

The appeal court decided that the trial judge did not have sufficient evidence that a border made of railroad ties was intended to mark the true boundary.

 Take A Survey To Find Out Where Your Lawn Really Ends

In any case, however the first step is to order a survey.  Preferably, the survey will show the disputed line(s) and the location of structures, fences, docks, relative to the line(s). This costs money and might actually prove you wrong.  However, a Seller is required to disclose a dispute or discrepancy in the Seller’s Real Property Disclosures, Chapter 64.06 RCW, now applicable to commercial property and unimproved property as well as residential property.  And your title policy won’t cover a boundary discrepancy without a survey and will not cover something not in the record.

But the Seller must resolve the matter in order to sell the property, or even pass it down to the kids, without the dispute.  If the neighbors are reasonable, you may not need an attorney.  A survey is however, always advised even if to describe an agreed boundary line and record.

Bringing Out The Worst In People

But the situation brings out the worst in people because a man’s home is his castle from the depths to the heavens. When you order the survey, your neighbor might pull up stakes and scare the surveyor off.  You are getting ready to pour concrete on a 100 foot retaining wall and he gets a TRO as the cement trucks pull up.  He finds an old survey or gets a new one that contradicts yours, claims he’s been mowing that spot and planting posies for years, his grandpa had a pig sty right there and all the old timers remember that hog that won the blue ribbon.  And by the way, the original patent described one corner as at the big tree or on a rock with a chiseled cross.

One of the best stories in Washington comes out of the Entiat River, Thomas v. Bremer, Cascade v. Bremer, United States v, Bremer where federal judge Alan McDonald explains in an unpublished opinion the “whiskey survey.” In the 1880’s certain government surveyors, not so brave as our modern types, were afraid to get out the boat because of wild animals and native Americans, so they marked only the corners at the river, filling in the rest at the bar in the evening.  This meant that original patents described parcels that varied widely from proper surveys.  Settlers came in and staked out their land which differed from that actually described.  The gov’t conducted a resurvey of the land as it was staked by the settlers.  This survey was not however recorded.  Subsequent owners then could rely on the original survey to claim property outside of the boundaries of the resurvey.  In the case with Thomas, which we handled, the theory of adverse possession was dismissed because Bremer had actively disputed Thomas’s claim with lawsuits and tearing down fences from the beginning.  The claim was therefore, not “continuous.”

 Because the Thomases’ property tax receipts cover property in sections 15 and 23, whereas the Bremers’ receipts cover the SW ¼ of the SW ¼ of section 14, the Thomases cannot establish an adverse possession claim under the seven-year rule of RCW 7.28.070. They also cannot establish exclusive and uninterrupted possession of the nine acres given the multiple criminal and civil trespass complaints brought by the Bremers against them, the destruction of every fence they put up and the Bremers’ assertion of their ownership rights in the property for more than 20 years. Thomas v. Bremer, 88 Wn. App. 728 (1997)

 

Adverse Possession: Open and Notorious

This brings us to the factual elements that a claim of adverse possession must satisfy. The claim and use must be open, notorious, hostile, and continuous, under a claim of right, for the statutory period.  In other words, continuous until the statute of limitations of ejectment/quiet title has expired, 10 years in Washington, 20 in Idaho.  The use must be such as an owner would make of it for the whole time.  Leaving a field fallow, or unused under an open space or timber designation would still be continuous if that’s how an owner would use it.  Periods of unbroken adverse use by subsequent owners can be tacked together to equal the statutory period.

The factors of open and notorious use simply mean that the use is such that the possessor is not trying to hide it and that the use is known in the community.  An owner is assumed to have actual or constructive knowledge of such use.  Hostile does not mean animosity, but such use that would not be allowed by an owner without permission.

A permissive use cannot ripen into adverse possession unless the permission is expressly withdrawn and the use continues for the statutory period.  Likewise, an adverse use that is abandoned for the statutory period may be extinguished.

As this court stated in Miller, the adverse possession doctrine arose in order to assure the maximum utilization of the land, encourage the rejection of stale claims, and quiet titles.[11] But courts will not permit the ” theft” of property by adverse possession unless the owner had notice and an opportunity to assert his or her right. Therefore, there is no presumption in favor of the adverse holder because possession is presumed to be subordinate to the true owner’s title.[13]

Adverse possession requires 10 years of possession that is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. ” The ‘ hostility/claimofright’ element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period.”Hostility is not personal animosity or adversarial intent, but instead connotes that the claimant’s use has been hostile to the title owner’s, in that the claimant’s use has been akin to that of an owner.

Permission to occupy the land, as given by the true title owner to the claimant, will negate the hostility element. This means that use of the land with the true title owner’s permission cannot be hostile. Therefore, ” ‘ a different set of rules applies when the initial use is permissive.’ ” The party claiming adverse possession bears the burden of proving that permission terminated. ” Because permission is personal to the grantor and cannot extend beyond that person’s ownership, the relevant viewpoint for determining when permissive use terminates is that of the party granting the permission.” (internal citations omitted) Herrin v. O’Hern, 168 Wn.App. 305 (Wash.App. Div. 1 2012)

Adverse Possession – Get Off My Lawn!

What is Adverse Possession?

Disputes over boundary lines that are longstanding may result in a change in ownership, therefore, a change in the boundary line, regardless of the results of a survey.  The common offensive or defensive theory to get around the legal description and survey is adverse possession. Adverse possession is legal conclusion based on facts. Specifically, facts that show the adverse possessor has been treating the property as an owner would for the period of the statute of limitations for a quiet title or ejectment action.

So the court is asked to quiet title to the property in the name of the adverse possessor or the record title holder depending upon the facts proven. The legal conclusion confirms the ownership of real property arising from certain facts which are not of record. It is not the result of a judicial decision. Rather, the court confirms that sufficient facts have already created a superior interest in real property.

Technically then, the action is one for quiet title or ejectment under Chapter 7.28 RCW.  The record owner may attempt to eject the adverse possessor using the statutory cause of action, the response to which would be a counterclaim for quiet title based on adverse possession. Or, the adverse possessor may file an action to quiet title as against the record owner and the record owner defends by disputing the facts establishing possession, and counters with ejectment.

7.28.010. Who may maintain actions – Service on nonresident defendant

Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein, and may have judgment in such action quieting or removing a cloud from plaintiff’s title; . . .

The ten-year rule is the general statute of limitations for recovery of real property.  Facts amounting to adverse possession, with nothing more, must exist for ten years for superior title to arise in the claimant.

§ 4.16.020. Actions to be commenced within ten years – Exception

The period prescribed for the commencement of actions shall be as follows:

Within ten years:

(1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action.

Adverse possession plus color of title or payment of taxes shortens the limitations period to seven years:

7.28.050. Limitation of actions for recovery of real property – Adverse possession under title deducible of record

That all actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual, open and notorious possession for seven successive years, having a connected title in law or equity deducible of record from this state or the United States, or from any public officer, or other person authorized by the laws of this state to sell such land for the nonpayment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid, but when the possessor shall acquire title after taking such possession, the limitation shall begin to run from the time of acquiring title.

The record owner who does not actively seek

§ 7.28.070. Adverse possession under claim and color of title – Payment of taxes

Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title.

The attorney will see these facts come up in the context of a boundary dispute involving anywhere from a few square feet to tracts of acreage.  One party may have been using the property of another  for many years without knowledge and then a new owner comes in that asserts ownership.  A surveying mistake or a difference of opinion or method in resolving surveying issues may result in conflicting surveys.

In any case, traditional attitudes toward private ownership of real property, from the depths to the heavens, as a sovereign, in effect create the “Get off my lawn.” Mentality and confrontation.

Part Two Coming Up Next Week

Get of my lawn about adverse possession

Image courtesy of Sattva / FreeDigitalPhotos.net

Is That Legal. . .? What Is The Law?

Well, Is It?

Spokane Attorney, justice statue

1.       Laws are rules or standards by which humans intend to regulate, encourage or punish some aspect of human behavior. Law also refers to an entire system of government, rights and obligations and an institutionalized manner of resolving disputes.

2.       Lawyers will often be asked a question by a client that starts:  “Is it legal to . . . ?” Isn’t it against the law to . . ?” usually followed by a complaint about the behavior of a neighbor, co-worker, ex-wife or party to a contract. So, what does it mean to be “against the law?” Usually, they are asking if a written law prohibits the behavior, but that is not the only source of law.  If there is a contract involved, the lawyer must first look to the written agreement of the parties to see if the act is prohibited by the express terms of the contract. Then the client may allege a breach of contract, which is a private wrong between the parties.

3.       Perhaps your client’s neighbor is building a fence through their petunia patch. Your client has called the police saying the neighbor is “trespassing.” The policeman has told your client that it’s “a civil matter” that must be resolved in court between the two parties (unless the neighbor bonks your client on the head with a fence post.) In the case of the fence, a matter of real estate law, the lawyer will have to consult with a surveyor, purchase a title report, look at public records of deeds and boundary line agreements, interview neighbors, apply a common law theory of “adverse possession” and consider a lawsuit to “quiet title” based on a “statute of limitations” before the answer may be clear.

4.       Perhaps the neighbor is building a pig farm next to your client’s Zen garden. There might be a land use and development statute, ordinance or zoning regulation that prevents that use.  The use may be prohibited by a recorded covenant that sets rules for the subdivision that can bind future owners. There also may be a common law nuisance action found by reading cases and then a trip to court to obtain a restraining order after posting a bond.

5.       Your client has been attacked by the neighbor’s developmentally disabled child and his pet pit bull, causing personal injury and property damage. You must now look up case law regarding negligence. If the neighbor knows of the dangerous propensities of child and dog he may be negligent if he has not used reasonable care to prevent such an attack.  There may be a statute that regulates dangerous animals, which may help you show evidence of negligence. If your client throws a fence post at the dog and instead the neighbor’s window is broken, who is liable for the cost of repair? Will you client receive a counterclaim for property damage and assault?

6.       The answer to any one of these scenarios may be found with reference to overlapping statutes, contracts, regulatory rules and common law legal principles. This is why you need a lawyer to help navigate through these matters to arrive at a resolution in an adversarial legal system.

Hoarding: Out of Hiding

Hoarding is a Worry

There has always been great concern about tenants who accumulate vast amounts of seemingly useless possessions and garbage, including newspapers, furniture, cats, etc. Usually, this situation comes to the attention of landlords because neighbors or code enforcement officers discover a situation that is hazardous to life and health. We are fortunate that the mental condition that leads to such situations has now become the topic of much discussion, including televisions shows, such as A & E’s Hoarders. In May, the American Psychiatric Association is expected to releases its 5th edition of the Diagnostic and Statistical Manual of Mental Disorders, officially recognizing hoarding as a psychiatric disorder. This means that Hoarding will become subject to the Americans With Disabilities Act (“ADA”) and require “reasonable accommodations” under the act.

Hoarding, also known as pathological collecting, is a pattern of behavior that is characterized by excessive acquisition of and inability or unwillingness to discard large quantities of objects that cover the living areas of the home and cause significant distress or impairment. Professionals who treat hoarding disorders however, remain optimistic that the condition can be controlled in many cases.

New Hoarding Designation Protects Rights

Now, before you have a fit over this because more rights are being given to problem tenants, please realize that the designation gives a much more certain way of dealing with the issue. Before this diagnosis, the landlord’s choice was to give a 10 day notice to comply or vacate and then a messy, costly eviction and cleanup. Now, reasonable accommodations could include a plan that requires 30 days of cleaning and support service for hoarders in an effort to avoid eviction. In other words, professional help to eliminate the danger caused by the condition can be required.

This is important: The main problem with hoarders is the creation of unsanitary and hazardous conditions that threaten the safety of the hoarder and other tenants. If the condition is under treatment, it doesn’t have to be cured, just made safe, in order to solve the landlord’s problem. Some landlords have even realized that the hoarder, being obsessed with keeping their collection, will go to great lengths to pay the rent and be undisturbed. They can be good tenants.

Also, because there is plenty of discussion in the media about this, some of the confusion and stigma is removed. If a hoarder, like an alcoholic, can stand up and say: “I am a recovering hoarder” then the required “reasonable accomodations” can actually help with their recovery.

Landlords Still Cannot Discriminate

One thing a landlord cannot do is discriminate based on a medical diagnosis. A prior history of eviction and code enforcement or police intervention could be a reason not to rent to a particular tenant. A person that discloses a medical condition however, cannot be rejected on that basis.

A good website to review is www.addressourmess.com which provides services to Hoarders and their families nationwide. The website includes useful information for understanding and dealing with Hoarders. For example:

At Address Our Mess we’ve developed a program that helps the hoarders and the family of the hoarder and we can offer much more than just a cleaning. First, the hoarder needs to be open for a cleaning and fresh start from all the materials that have no use to them. Once the house is cleaned, they need to develop a daily routine to keep it clean. Sometimes having drawers for each type of item and once that drawer gets filled than something must be emptied to keep the new stuff otherwise the new stuff must be thrown away. This limits the collection of stuff and always offers storage. Other hoarders may need the one for one rule; every time something is purchased something must be given away.

The ability to deal with Hoarder situations compassionately and intelligently, from a position of knowledge rather than confusion, will benefit both landlords and tenants.

Steampunk Eviction

Eviction Takes Too Long – Or Does It?

I often hear the complaint from landlords that eviction takes too long.  Why does it take up to a month or more to remove a tenant from the three-day noticed to the Sheriff on the doorstep?  Why do tenants have all these rights?

Steampunk Eviction Notice SpokaneThe answer is historical.  Before the “modern” eviction statues were enacted in the 1880’s, the common law of real property ruled.  Thus the Steampunk reference to eviction. A tenant had more right to possession to rented property than its owner (still true today with some restrictions) and the landlord had to resort to the long legal process of ejectment and quiet title, or take a shotgun and chase the tenant off.

The law also allowed the landlord to confiscate the tenant’s property and hold it until rent was paid, called “distraint for rent.” This also usually involved shotguns on both sides. To avoid bloodshed and give both sides a more predictable process, “unlawful detainer” laws were enacted that give evictions the highest civil priority in the court system and prevent both sides from physical and economic excesses.  Also, the fact and legal issues are limited to possession and rent.  Other matters that would slow down return of possession to the landlord are tried in a separate case.

Eviction Confusion

Such a statute is “in derogation of the common law.” This means that the speeded up relief is available only if the rules in the statute (RCW 59.12 and 59.18) are strictly followed.  This leads to much confusion. For example, service of a three day notice by certified mail is not provided for under the statute and therefore, is not effective.  Posting the eviction notice and mailing by regular mail is provided for in the statute and therefore, is sufficient.  Although a landlord can store personal property for an evicted tenant, the only charges allowed are for hauling and storage, not for rent.

No Need for Shotguns

There are many other examples, but suffice it to say that the process is much quicker and more certain for all sides than a year-long ejectment or quiet title action, or shotguns and “Get off my lawn!”  A landlord should obtain forms and instructions for evictions from the Landlord Association or their attorney.

Junk Debt Collection Defense

Junk Debt Collection DefenseCreditors who buy consumers’ old debt for pennies on the dollar have increasingly won bogus lawsuits, but consumers can begin to fight back by taking a few easy steps. About 90 percent of these credit card lawsuits, often called debt junk suits are “flawed.”

The following tips can help you defend against Junk Debt Collection:

1. Don’t ignore a lawsuit.

Keep in mind is that more than 90 percent of these cases are won by default judgment because the sued party doesn’t appear in court. One common tactic of creditors’ lawyers is to tell you that you don’t need to show up in court. People are often too scared to show up and defend themselves. Rule No. 1: Show up in court and make them prove their case. File an answer. Don’t ignore it.

2. Contact an Attorney

Many people who have a large amount of debt may not be able to afford to hire an attorney when faced with a junk-debt lawsuit. Most Attorneys specializing in collection defense will offer a flat fee or reduce costs by assigning tasks to Paralegals in order to keep your bill at a minimum. The repercussions of fighting this on your own and making mistakes could be greater than a flat fee. Most offices also offer a free consultation and could give you an estimate of the cost of defense before you decide to hire an attorney.

3. Check for robo-signing.

Borrowers should look for an indication of robo-signing in the junk-debt documentation. Like the foreclosure robo-signing debacle that led to a $25 billion settlement this year, many creditors also use illegal, robo-signing procedures when buying junk debt.Defendants should even use the Internet to search the names of the people who signed the documents to make sure they are authentic signatures of real people.

4. Read the creditor’s documentation.

The creditor may also claim that borrowers owe more money than their actual debts because a bank has tacked on extra fees that were never agreed upon. A percentage of the time junk debt is repurchased from creditor to creditor, with lost paperwork along the way. Creditors must show a chain proving they own the debt.

5. Avoid settlements negotiated in the hallway.

Opposing attorneys will sometimes try to cut a deal with defendants in the hallway outside the courtroom if they seem vulnerable or intimidated. But often these settlements are set up to make you fail. Negotiations usually end with an unrealistic payment plan that could leave you liable for the full judgment amount if you miss a payment.

Most of all contact an attorney, find out your options. A lot of the times you can walk away having only paid a flat fee for attorneys fees and the collection can be stopped. Contact our office for more details: Murphy, Bantz & Bury, PLLC – 509-838-4458