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Questions and Professional Answers

Questions and Professional Answers

  • Homestead Act (Nevada)

    I refinanced my home last year (2007) but didn't update my Homestead application. I am married but the Mortgage loan is in my name only because my wife wouldn't qualify for a reasonable rate of interest due to her bad credit scores. Can I qualify for a new Homestead application as a single person or does my wife have to be listed as well?
    • Re: Homestead Act (Nevada)

      You don't need to change your homestead unless you want to. You can do a new one to add your wife but if she was sued, I think that the homestead would prevent the sale of your house.

      Jeffrey Cogan
      Jeffrey A. Cogan, Esq., Ltd.
      3990 Vegas Drive
      Las Vegas, NV 89108
  • Homestead exemption

    Should domestic partners who co-own and live in a house use the homestead exemption application form for married persons? Thank you.
    • Re: Homestead exemption

      If you're talking about bankruptcy, federal law does not yet recognize California's domestic partnership. If you're talking about homestead exemption to put your property beyond the reach of creditors in California, the answer is "yes", you can use the exemption application. The Family Code now defines the term "spouse" in the law as including "domestic partner" except for state taxes.

      Robert F. Cohen
      Law Office of Robert F. Cohen
      P.O. Box 15896
      San Francisco, CA 94115-0896
    • Re: Homestead exemption

      I read the response from Mr. Cohen and would respectfull disagree with him. For California NON-BANKRUPTCY purposes I think he may be right though the newness of the domestic partnership act means that many of the issues as to what it effects will take years to resolve.Federal Bankruptcy Law very definately does NOT recognize domestic partnerships. For instance you and your domestic partner CANNOT file a joint bankruptcy as you are not married under federal law. In fact you both would have to file separate bankruptcy cases.Having said all that, you are in better shape simply because you are not "married" spouses. As such you each can SEPARATELY protect equity in a home.A husband and wife can typically only exempt $75,000 in equity while you and your domestic partner can each exempt $50,000 for a total of $100,000 in equity. You are together $25,000 better off than a married husband and wife who are prohibited from each using exemptions separately.There are other situations where the exemption for the homestead may be as high as $150,000 each.I would highly recommend that you call my office at 1-800-675-1005 to set a free attorney consultation with me so we can discuss your situation further. I would recommend doing it quickly given the changes Congress is making in the laws that will dramatically limit people's ability to do bankruptcy.For the record, I have been doing bankruptcy law for 27 years and am one of only 93 state bar certified specialists in the state of California. You can learn about me, my firm and a lot about bankruptcy law by going to my web site at www.ca-bankruptcy-attorneys.com. I invite you to go there as many of your questions will be answered in plain English there.By the way, I give discounts where I am filing 2 related cases at the same time. I have handled life partner bankruptcy matters for years in the Gay and Lesbian community and have seen a recent upsurge in cases of late.I look forward to the opportunity to help you and your partner with your financial issues.

      Gary Fraley
      California Bankruptcy Attorneys
      1401 El Camino Ave. Suite 370
      Sacramento, CA 95815
  • Texas homestead application

    where do I obtain forms for filing for the Texas homestead exemption?
    • Re: Texas homestead application

      Go to www.dcad.org. From your zip code, it appears you are in Dallas County. The forms are there

      Cheryl Rivera Smith
      The Smith Law Firm
      11660 Creek Point Drive
      Frisco, TX 75035-8278
  • declaration of homestead

    We purchased our home in 3/97 and filed a declaration of homestead in massachusetts. We refinanced in Jan 1998 and were not required to re-file the homestead. We just refinanced again this month with a different lender who required us to release (or waive ) the homestead. Now i have to re-file it........why would a lender require a release on the homestead?Second part of my question is we have a judgement for a credit card which has not been executed yet......since we had to release the homestead to refinance does this leave our home vulnerable....or does refiling the homestead take care of that......the debt was from 1997 and thats when we filed the original homestead. (homestead was filed before the debt began)
    • Re: declaration of homestead

      The new bank asked you to relese the homestead because it doesn't understand that mortgages are not affected by homesteads; homestead protect the equity in your home >above< any mortgages. The credit card part of your question is interesting; I would argue that the original homestead protected the home against the execution. Keep in mind, however, that a really nasty creditor could still force a sale of the home in certain circumstances, so don't think that the homestead is absolute protection! Best wishes.

      David Baker
      Law Office of David Baker
      236 Huntington Avenue, Room 306
      Boston, MA 02115
  • Texas Homestead Law clarification

    A creditor has won a judgment against us and filed a lien on our homestead property.We currently rent the property but intend to return to our homestead in the near future. We have not established a new homestead.Q:Who long can we rent our homestead and still keep the exemption?Can we sell the property with a clear title. Does the lien hurt our ability to sell the homestead property?
    • Re: Texas Homestead Law clarification

      The fact that the property is rented raises a question as to homestead exemption. As it presently stands, you cannot sell with a clear title since the lien attaches to all property that you won in that county.Getting an attorney to clear your title may result in a lawsuit to prove up homestead.

      Peter Bradie
      Bradie, Bradie & Bradie
      6606 FM 1488, Suite 148-363
      Magnolia, TX 77354-2544
  • Homestead Deed, Viginia

    Aside from the answer I saw posted here, does the Homestead Deed, or exemption protect your house, or homestead as long as you make payments on time?A lender considering issuing me an equity credit line is qestioning me about their wish to ''remove'' the Homestead (exemption) Deed in place since my C7 in 2003.The broker has said ''they think they can work around the Homestead Deed''.Does this mean it protects me and they want to nullify that protection?
    • Re: Homestead Deed, Viginia

      You can't "remove" a homestead deed. It may protect you to an extent from judgment liens, but not from a mortgage/deed of trust.

      Daniel Press
      Chung & Press, P.C.
      6718 Whittier Ave., Suite 200
      Mclean, VA 22101
  • Homestead Protection

    We have been advised by an associate to ''Homestead'' our house. All definitions related to Homestead that I have seen on the internet say that it is designed to protect you from creditors. Does is also protect you from a disgrunteled customer who may be seeking legal and/or financial recourse? Are there tax or title impications involved with Homestead? Please advise. Thanks very much for your help!
    • Re: Homestead Protection

      A homestead recorded in the County in which your residence is located will protect any excess value of your home, over and above any loans you may have on the home, up to the maximum amount of your statutory homestead protection. In California that amount is $75,000.00 for a husband and wife, (unless one of you is disabled, over 65, etc., in which case it is $150,000.00). For example, if you have a house worth $500,00.00 and you have loans of $400,000.00 on that house, then your equity is $100,000.00, and $75,000.00 would be protected if you record a homestead. A disgruntled creditor is of concern only if he files suit, wins and gets a jdugment, in which case he could seek to satisfy that judgment out of the equity in your home. There is no tax impact, but every time you get a new loan, you will have to "release" the homestead, but you can then re-record it. Note: some people erroneously believe that it protects you from foreclosure by a lender from whom you have obtained a loan; it does not.

      Judith Deming
      Deming & Associates
      5334 E. Chapman Avenue, Suite 100
      Orange, CA 932869
    • Re: Homestead Protection

      In addition to the home equity protection given by a recorded declaration of homestead, you already have a so-called 'automatic homestead' in that California law exempts certain property, including some home equity, from execution and levy to satisfy judgments.The overlap is sufficient to reduce and sometimes eliminate any advantage from filing a homestead. Also, in some situations, filing a declaration of homestead can be a red flag to creditors, plaintiffs, or other people you do business with, calling attention to your fears.I'm not saying don't do it, just giving you the rest of the picture.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • Declaration of Homestead Coverage one or both married spouses?

    Hello, I live in Massachusetts. I am a female and I own my home currently with my husband as Tennents by entirety and do have a mortgage. I put a homestead on the property with my first husband, we were divorced and I kept the homestead revised in my name (it was always in just my name) and I did remarry and updated my name to reflect my married name. MY QUESTION: My husband has a creditor who is trying to put a lien to attach my house & property. Can the creditor do that even though I soley have a homestead in my name on the property and not my husband? How does that work and does it matter if the holder of the homestead act is male or female or has to be the husband? Can husband put on a homestead in his name as well or do we have to redue as husband and wife a new homestead declaration? Thank you.
    • Re: Declaration of Homestead Coverage one or both married spouses?

      Only one person may record a Declaration of Homestead. If two or more people sign the homestead declaration, it is NOT invalid, but it is valid for the FIRST person to sign it. On the other hand, a homestead is for the benefit of the entire family, so your husband benefits from your homestead, too. A homestead does not prevent a creditor from getting a lien. It would only prevent the creditor from collecting any money when the home is sold or the mortgage refinanced so long as the debt arose after the homestead.

      David Baker
      Law Office of David Baker
      236 Huntington Avenue, Room 306
      Boston, MA 02115
  • Homestead Act

    I am recently divorced. My ''X'' husband will be signing off the deed to the house that I and the kids live in now, but he has not done so yet. I have already taken over the mortgage in just my name. My question is: Can I have the Homestead Act placed on this house now? If so, would it be in just MY name? OR - could I get the Homestead Act in both our names now if that's necessary then when the ''X'' signs off the deed do another Homestead in just my name? HELP! Thank you,
    • Re: Homestead Act

      You can file a homestead in your own name now. You do not have to wait for the deed from your husband.

      Jonathan Roth
      Donovan Hatem LLP
      Two Seaport Lane 8th floor
      Boston, MA 02210
  • homestead

    What does this mean on your mortgage, Borrower waives all rights of homestead exemption in the property and relinquishes all rights of courtesy and downer in property. I have a declaration of homestead but then I refinanced. I want to know if I need to complete another homestead.
    • Re: homestead

      Filing for the homestead exemption protects the first $300,000 of value in your home from being attached or seized by creditors, then sold, to satisfy debts you owe, usually civil judgments for injuries to others. Equity above $300,000 is unprotected from attachment.If your refinance says you've waived your homestead rights, the lender probably made you do that as security in the event you defaulted on the loan. Having waived homestead, it looks like if you default, the lender could seize your house, and sell it in a forclosure, and apply the proceeds from your equity to pay off the amounts remaining on the defaulted loan. In other words, you have no $300,000 protection. If you are still able to file for homestead protection, I urge you to do so. Its a form and a filing that can be done in a day or two. Contact me if you'd like me to look at the documents and file for protection if you're still able to do so. Dower and Curtsey is an antiquated doctrine that, I do not believe, has much relevance today.

      Craig J. Tiedemann
      Tiedemann Law Firm (TLF)
      92 State Street, Ste 700
      Boston, MA 02109