If you own a property that is not your Principal Residence and agree to a short sale with your mortgage company you may be setting yourself up for a big tax bill. Any debt forgiven by the mortgage company on property that is not your Principal Residence will be considered "Income" to you. The mortgage company will issue form 1099c Cancellation of Debt that you will have to claim on your tax returns. Moreover, the amount forgiven will be considered a "Capital Gain" and taxed accordingly. Worse yet, this tax debt is not dischargeable in bankruptcy.
How do you avoid this tax bill?
Instead of agreeing to a short sale you have to option to declare bankruptcy if you otherwise qualify for same. If you declare bankruptcy, you will discharge your personal liability for the mortgage. By doing this, you will not be responsible to make payments on the mortgage. The mortgage company will retain a lien on the property and will foreclose upon it if payments are not made but they won't be able to sue you for the outstanding balance.
More importantly, the discharged mortgage will not be considered "Income" for taxation purposes. As such, you will avoid having to pay the substantial taxes you would be liable for under a short sale. The net result will be the same, you will have disposed of the property without satisfying the mortgage, but you will save a bundle in taxes.
If you have any questions feel free to contact me at wclos@lawyersmichigan.com
Tuesday, March 22, 2011
Short Sale and The Mortgage Forgiveness Debt Relief Act
Often times when a property owner owes more on a mortgage than the property is worth he/she will enter into an agreement with the mortgage company for a "Short Sale." A short sale is an agreement in which the owner sells his/her property for an amount less than the amount owed on the mortgage and the mortgage company agrees to forgive the remaining balance of the debt.
For example:
-A owes $150,000 to X Mortgage Company
-A's house is only worth $100,000
-X Mortgage Company agrees to take $100,000 to satisfy A's debt
-A sells the house for $100,000
-X Mortgage Company forgives $50,000 in debt
What people often do not realize is that the amount of debt forgiven, $50,000 in the example above, is considered "Income" for taxation purposes. At the end of the year, the mortgage company will issue tax form 1099c Cancellation of Debt to the owner. This income must be reported on your Income Tax Return for that calender year. This income, however, may be excluded from taxation.
In 2007, the Federal Government passed The Mortgage Forgiveness Debt Relief Act. This act allows a debtor to excluded the debt realized on a 1099c if the forgiveness was on his/her Principal Residence. In the above example, if the property A sold via the Short Sale was his principal residence he would not have to pay taxes on the $50,000 realized.
It is important to note that this exemption applies ONLY to Principal Residnces. Any other type of property will be subjected to taxation.
Attached here is a link to the IRS web page on the Mortgage Forgiveness Debt Relief Act for additonal information.
http://www.irs.gov/individuals/article/0,,id=179414,00.html
If you have any further questions contact me at
wclos@lawyersmichigan.com
For example:
-A owes $150,000 to X Mortgage Company
-A's house is only worth $100,000
-X Mortgage Company agrees to take $100,000 to satisfy A's debt
-A sells the house for $100,000
-X Mortgage Company forgives $50,000 in debt
What people often do not realize is that the amount of debt forgiven, $50,000 in the example above, is considered "Income" for taxation purposes. At the end of the year, the mortgage company will issue tax form 1099c Cancellation of Debt to the owner. This income must be reported on your Income Tax Return for that calender year. This income, however, may be excluded from taxation.
In 2007, the Federal Government passed The Mortgage Forgiveness Debt Relief Act. This act allows a debtor to excluded the debt realized on a 1099c if the forgiveness was on his/her Principal Residence. In the above example, if the property A sold via the Short Sale was his principal residence he would not have to pay taxes on the $50,000 realized.
It is important to note that this exemption applies ONLY to Principal Residnces. Any other type of property will be subjected to taxation.
Attached here is a link to the IRS web page on the Mortgage Forgiveness Debt Relief Act for additonal information.
http://www.irs.gov/individuals/article/0,,id=179414,00.html
If you have any further questions contact me at
wclos@lawyersmichigan.com
Thursday, February 10, 2011
Lawsuits
Most people do not have a working knowledge of how a lawsuit proceeds. It is important for a client to understand the different stages of a suit in order to actively participate in the suit. This post will give readers a general overview of the general process of a lawsuit. It is important to note that all suits are unique and may deviate from the below outline. Further, all Courts have Local Rules that can supplement or change the standard procedure. As such, it is important to discuss your matter with an attorney.
Stage 1: Pre-Litigation Negotiation
Stage 1 can last as long as the parties are willing to negotiate. However, if the parties are unable to come to a resolution a party may choose to start formal litigation.
Stage 2: Commencing a Suit
The second stage is when formal litigation begins. In order to commence a suit one party must prepare a Complaint A Complaint is a document that states specifically the allegations against the opposing party and requests the Court to grant a Judgment in favor of one party. At this point, the parties are formally referred to as the Plaintiff (the party that started the suit) and Defendant (the party that is defending the suit).
A Complaint has 3 distinct elements. First, the Complaint must present the facts that gave rise to the suit. It is important to present all facts clearly in a manner that is easily understood. This the Plaintiff's first chance to present his/her case to a Judge and the opposing party. As such, the Plaintiff has the opportunity to "set the table" for the suit and frame the issues in a way more favorable to him/her.
Secondly, the Complaint must set forth the legal theory on which the Plaintiff is seeking to recover. Common legal theories are: Breach of Contract, Fraud, Unjust Enrichment and Negligence. A legal theory consists of specific elements that must be proved by the Plaintiff to support the theory. For example, if a Plaintiff is suing based upon the theory that the Defendant Breached a Contract, the Plaintiff must prove each of the following elements:
Once the Complaint is prepared it is than filed with the appropriate Court and must be served on the Defendant. There are several types of Service but the most popular is "Personal Service." This is accomplished by having a Sheriff, Court Officer or Process Server personally hand a copy of the Summons and Complaint to the Defendant.
Once the Complaint has been served, the Defendant will have 28 days to respond to file an Answer to the Complaint. In an Answer, the Defendant must specifically admit or deny each allegation in the Complaint. Failure to file an Answer in the required time can result in the Plaintiff obtaining a Default Judgment against the Defendant. It is important for a Defendant to contact an attorney if a Default Judgment is issued as there may be an opportunity to set the judgment aside and continue with the case.
Once an Answer is filed, the Court will set a Pre-trial Conference hearing. At this hearing, the parties have an opportunity to discuss the case with each other and the Judge in an effort to come to a settlement. If no settlement is reached, the Judge will set dates and deadlines for the remainder of the lawsuit. The Court will also issue a Discovery Order dictating the duration and type of Discovery the parties can engage in.
Stage 3: Discovery:
After the Pre-Trial Conference the Discovery period generally begins usually lasting between 60 and 120 days. Discovery refers to the techniques an attorney uses to investigate the opposing sides case. There are a wide variety of Discovery techniques available. The most commonly used techniques are:
After Discovery is closed, the suit will continue into the Pre-Trial Proceedings stage. One of the the main events of this stage will be the arguing of Dispositive Motions. A Dispoitive Motion, also called a Motion for Summary Disposition (in Michigan Courts) or a Motion for Summary Judgment (in Federal Courts) is a motion in which the moving party requests the Court to enter a Judgment without a Trial. There are several reason why a Court would do this including:
If a Dispositive Motion is denied the Court will schedule a Final Settlement Conference. During this Conference, the parties again will meet with the Judge in an effort to settle the case. It is not uncommon for a Judge to take an active role in trying to negotiate a settlement at this point. If a settlement is not reached, the case will proceed to Trial.
Stage 5: Trial
The fifth stage of the litigation process is the actual Trial itself. Generally, on the day of Trial the Court will encourage the parties to make one last attempt at settling the case. Often times, cases settle on the day of trial as it is the last opportunity for the parties to determine the outcome of their case. If no settlement is reached, the fate of the case is left to the Judge or Jury.
There are two types of trials: a Jury Trial or a Bench Trial (sometimes called non-jury trials). A Jury Trial is a trial that is decided by 6-12 members of the community. In contrast, during a Bench Trial, the Judge rules on the outcome of the case.
In the case of a Jury Trial the parties will start the trial by selecting the Jury. This can last anywhere from 1 hour to a few days, depending on the Trial. Obviously this step is omitted in a Bench Trial.
Next, the parties will start the case with their Opening Arguments. An Opening Argument is a when an attorney presents a brief introduction of the case to the Court and the arguments that will support his/her position. The Plaintiff first argues his/her Opening Statement followed by the Defendants'.
After the Opening Statements, the Plaintiff begins to present his/her Case in Chief. A Case in Chief is the presentation of evidence and examination of witnesses that support the Plaintiff's position. The Plaintiff will start by calling his/her witnesses to the witness stand to give testimony. The witnesses will also be used to introduce Evidence into the Court Record. Just like in the Deposition, the witnesses swear to tell the truth. The Plaintiff will Examine the witness first followed by the Defendant's Cross-Examination. A Cross-Examination is an opportunity for the opposing party to ask questions of the other side's witness. Cross-Examination is often tense with the attorney attempting to undermine the credibility of the witness or to catch the witness in a lie. After both sides are finished examining the witness, he/she steps down and the Plaintiff calls the next witness. This pattern will repeat itself until the Plaintiff stops calling witnesses.
After the examination of the Plaintiff's last witness, the Plaintiff will be finished presenting his/her Case in Chief and will Rest. After the Plaintiff Rests his/her case, the Defendant has the opportunity to present a Defense to Plaintiff's case. In order to do so the Defendant will bring his/her own witnesses and introduce his/her own evidence. At this point, the Plaintiff will have the opportunity to Cross-Examine the witnesses.
Once the Defendant has completed the Defense, the parties are allowed to present their Closing Arguments. Like the Opening Arguments, Closing Arguments always start with the Plaintiff. Closing Arguments are the last chance for the parties to present their sides and arguments to the Court before the case is decided by the Judge or Jury. After Plaintiff presents his/her Closing Argument, Defendant proceeds with his/her closing. After Defendant has finished his/her argument, Plaintiff has one last opportunity to address the Court in a rebuttal to Defendant's Closing Arguments.
After the Closing Arguments, in a Jury Trial, the Judge will read to the Jury the Jury Instructions. These instructions are crucial to the case and are often the subject to many arguments by both parties as to what to include in the Instructions. The Jury Instructions inform the jurors exactly what the Plaintiff needs have proven in order to find in his/her favor. The jury Instructions include the elements of each legal Theory put forth by the Plaintiff.
After the Jury is given the Instructions, they retire to Deliberate on the case. Deliberation is when a Jury meets to decide the outcome of the case and whether or not the Plaintiff met his/her Burden of Proof. In order to establish meet his/her Burden of Proof in a civil case, the Plaintiff must establish each element of his/her legal theory by a Preponderance of the Evidence. Simply put, the Plaintiff must establish, through the evidence, that his/her version of the case is more probable than not. Deliberations can last anywhere from 30 minutes to several days.
After the Jury/Judge reaches a decision, the Court will read the Verdict (the finding of fact by the Judge/Jury). The Verdict will state whether or not the Plaintiff has met his/her Burden of Proof in the case. If the Plaintiff is successful, the Judge will then enter a Judgement, awarding him/her damages against the Defendant. If the Verdict holds that Plaintiff did not meet its Burden of Proof than no Judgment will be entered and an order of No Cause of Action will be entered against the Plaintiff.
Stage 6: Post-Judgment
After a Judgment is entered in Michigan, the party whom the Judgment is against has 28-days to pay the Judgment. If the Judgment is not satisfied within 28-days, the Plaintiff is allowed to proceed with Post-Judgment remedies. The Law provides for several remedies, the most common remedies being:
Conclusion
In conclusion, I hope this brief overview of the process of a lawsuit has been helpful. Again, be mindful that each case is unique and, as such, may not conform to this outline. If you have any questions feel free to contact me via email: wclos@lawyersmichigan.com.
Stage 1: Pre-Litigation Negotiation
This first stage is one of the most important stages in a suit. This is the often the best opportunity for the parties to resolve a conflict before engaging in costly litigation. It is important in this stage to be receptive to the other party's position and to be willing to compromise.
If you hire an attorney at this stage, or any stage, the first thing the attorney should do is to engage in informal negotiations. This is usually accomplished by a simple phone call or letter to the opposing party or his/her attorney. Any attorney has an obligation to present to his/her client settlement offers made by the opposing party. Further, the attorney should explain the relative benefits and drawbacks from accepting or rejecting an offer. Ultimately, the decision to settle a case rests solely with the Client. As such, a good attorney will provide you with enough information to make an informed decision.
Stage 1 can last as long as the parties are willing to negotiate. However, if the parties are unable to come to a resolution a party may choose to start formal litigation.
Stage 2: Commencing a Suit
The second stage is when formal litigation begins. In order to commence a suit one party must prepare a Complaint A Complaint is a document that states specifically the allegations against the opposing party and requests the Court to grant a Judgment in favor of one party. At this point, the parties are formally referred to as the Plaintiff (the party that started the suit) and Defendant (the party that is defending the suit).
A Complaint has 3 distinct elements. First, the Complaint must present the facts that gave rise to the suit. It is important to present all facts clearly in a manner that is easily understood. This the Plaintiff's first chance to present his/her case to a Judge and the opposing party. As such, the Plaintiff has the opportunity to "set the table" for the suit and frame the issues in a way more favorable to him/her.
Secondly, the Complaint must set forth the legal theory on which the Plaintiff is seeking to recover. Common legal theories are: Breach of Contract, Fraud, Unjust Enrichment and Negligence. A legal theory consists of specific elements that must be proved by the Plaintiff to support the theory. For example, if a Plaintiff is suing based upon the theory that the Defendant Breached a Contract, the Plaintiff must prove each of the following elements:
- The Parties had a valid Contract;
- The Plaintiff performed consistent with the Contract;
- The Defendant committed a breach by failing to perform consistent with the Contract; and
- Because of Defendant's breach, Plaintiff has been injured.
Once the Complaint is prepared it is than filed with the appropriate Court and must be served on the Defendant. There are several types of Service but the most popular is "Personal Service." This is accomplished by having a Sheriff, Court Officer or Process Server personally hand a copy of the Summons and Complaint to the Defendant.
Once the Complaint has been served, the Defendant will have 28 days to respond to file an Answer to the Complaint. In an Answer, the Defendant must specifically admit or deny each allegation in the Complaint. Failure to file an Answer in the required time can result in the Plaintiff obtaining a Default Judgment against the Defendant. It is important for a Defendant to contact an attorney if a Default Judgment is issued as there may be an opportunity to set the judgment aside and continue with the case.
Once an Answer is filed, the Court will set a Pre-trial Conference hearing. At this hearing, the parties have an opportunity to discuss the case with each other and the Judge in an effort to come to a settlement. If no settlement is reached, the Judge will set dates and deadlines for the remainder of the lawsuit. The Court will also issue a Discovery Order dictating the duration and type of Discovery the parties can engage in.
Stage 3: Discovery:
After the Pre-Trial Conference the Discovery period generally begins usually lasting between 60 and 120 days. Discovery refers to the techniques an attorney uses to investigate the opposing sides case. There are a wide variety of Discovery techniques available. The most commonly used techniques are:
- Requests for Admissions: A series of questions requesting the Opposing Party to Admit or Deny certain facts.
- Requests for Production of Documents: Requesting the Opposing Party to produce documents that are relevant to the case.
- Interrogatories: A series of questions regarding the case that the Opposing Party must answer truthfully.
- Depositions: A Deposition allows the attorneys to Examine (ask questions of) potential witnesses and Opposing Parties, Under Oath, before trial. A witnesses' Deposition is recorded by a Court Reporter and can be used at trial if the witness gives conflicting testimonies.
- Subpoenas: A Subpoena is a Court Order, usually directed at an uninterested 3rd party, that demands certain documents be turned over. Failure to comply with a Subpoena can lead to civil and criminal liability.
After Discovery is closed, the suit will continue into the Pre-Trial Proceedings stage. One of the the main events of this stage will be the arguing of Dispositive Motions. A Dispoitive Motion, also called a Motion for Summary Disposition (in Michigan Courts) or a Motion for Summary Judgment (in Federal Courts) is a motion in which the moving party requests the Court to enter a Judgment without a Trial. There are several reason why a Court would do this including:
- There are no genuine issues of material fact for the Court to decide;
- The opposing party has failed to state a claim on which relief can be granted; and
- The opposing party has failed to state a valid defense to the claims asserted against him/her.
If a Dispositive Motion is denied the Court will schedule a Final Settlement Conference. During this Conference, the parties again will meet with the Judge in an effort to settle the case. It is not uncommon for a Judge to take an active role in trying to negotiate a settlement at this point. If a settlement is not reached, the case will proceed to Trial.
Stage 5: Trial
The fifth stage of the litigation process is the actual Trial itself. Generally, on the day of Trial the Court will encourage the parties to make one last attempt at settling the case. Often times, cases settle on the day of trial as it is the last opportunity for the parties to determine the outcome of their case. If no settlement is reached, the fate of the case is left to the Judge or Jury.
There are two types of trials: a Jury Trial or a Bench Trial (sometimes called non-jury trials). A Jury Trial is a trial that is decided by 6-12 members of the community. In contrast, during a Bench Trial, the Judge rules on the outcome of the case.
In the case of a Jury Trial the parties will start the trial by selecting the Jury. This can last anywhere from 1 hour to a few days, depending on the Trial. Obviously this step is omitted in a Bench Trial.
Next, the parties will start the case with their Opening Arguments. An Opening Argument is a when an attorney presents a brief introduction of the case to the Court and the arguments that will support his/her position. The Plaintiff first argues his/her Opening Statement followed by the Defendants'.
After the Opening Statements, the Plaintiff begins to present his/her Case in Chief. A Case in Chief is the presentation of evidence and examination of witnesses that support the Plaintiff's position. The Plaintiff will start by calling his/her witnesses to the witness stand to give testimony. The witnesses will also be used to introduce Evidence into the Court Record. Just like in the Deposition, the witnesses swear to tell the truth. The Plaintiff will Examine the witness first followed by the Defendant's Cross-Examination. A Cross-Examination is an opportunity for the opposing party to ask questions of the other side's witness. Cross-Examination is often tense with the attorney attempting to undermine the credibility of the witness or to catch the witness in a lie. After both sides are finished examining the witness, he/she steps down and the Plaintiff calls the next witness. This pattern will repeat itself until the Plaintiff stops calling witnesses.
After the examination of the Plaintiff's last witness, the Plaintiff will be finished presenting his/her Case in Chief and will Rest. After the Plaintiff Rests his/her case, the Defendant has the opportunity to present a Defense to Plaintiff's case. In order to do so the Defendant will bring his/her own witnesses and introduce his/her own evidence. At this point, the Plaintiff will have the opportunity to Cross-Examine the witnesses.
Once the Defendant has completed the Defense, the parties are allowed to present their Closing Arguments. Like the Opening Arguments, Closing Arguments always start with the Plaintiff. Closing Arguments are the last chance for the parties to present their sides and arguments to the Court before the case is decided by the Judge or Jury. After Plaintiff presents his/her Closing Argument, Defendant proceeds with his/her closing. After Defendant has finished his/her argument, Plaintiff has one last opportunity to address the Court in a rebuttal to Defendant's Closing Arguments.
After the Closing Arguments, in a Jury Trial, the Judge will read to the Jury the Jury Instructions. These instructions are crucial to the case and are often the subject to many arguments by both parties as to what to include in the Instructions. The Jury Instructions inform the jurors exactly what the Plaintiff needs have proven in order to find in his/her favor. The jury Instructions include the elements of each legal Theory put forth by the Plaintiff.
After the Jury is given the Instructions, they retire to Deliberate on the case. Deliberation is when a Jury meets to decide the outcome of the case and whether or not the Plaintiff met his/her Burden of Proof. In order to establish meet his/her Burden of Proof in a civil case, the Plaintiff must establish each element of his/her legal theory by a Preponderance of the Evidence. Simply put, the Plaintiff must establish, through the evidence, that his/her version of the case is more probable than not. Deliberations can last anywhere from 30 minutes to several days.
After the Jury/Judge reaches a decision, the Court will read the Verdict (the finding of fact by the Judge/Jury). The Verdict will state whether or not the Plaintiff has met his/her Burden of Proof in the case. If the Plaintiff is successful, the Judge will then enter a Judgement, awarding him/her damages against the Defendant. If the Verdict holds that Plaintiff did not meet its Burden of Proof than no Judgment will be entered and an order of No Cause of Action will be entered against the Plaintiff.
Stage 6: Post-Judgment
After a Judgment is entered in Michigan, the party whom the Judgment is against has 28-days to pay the Judgment. If the Judgment is not satisfied within 28-days, the Plaintiff is allowed to proceed with Post-Judgment remedies. The Law provides for several remedies, the most common remedies being:
- Periodic Garnishments: A party who has been granted a Judgment can obtain a Periodic Garnishment against the wages of the party whom the Judgment is against. There are restrictions on wage garnishes such as they are only good for 91-days. Typically a Wage Garnishment is good for 1/4 of a persons wages, however, if another Garnishment is in place or if there is a Child Support Order in place, the Garnishment will not be honored.
- Non-Periodic Garnishments: A Non-Periodic Garnishment is a one time garnishment of a person's assets, usually his/her bank account. When a bank receives a Non-Periodic Garnishment it freezes any account the Defendant has with that bank. At that point, the Defendant has 14 days to object to the Garnishment and to have a hearing on the objections in front of a judge. The objections available to a Defendant are very limited. At the hearing the Judge will make a ruling as to whom the money will be released to. If no objection is raised, the money in the account is released to the Plaintiff and applied towards the Judgment.
- Execution Against Personal Property: A party who possesses a Judgment can request from the Court r a Writ of Execution Against Personal Property. Once the Court issues the Writ, the Court Officer or Sheriff will take the writ and attempt to seize the Defendant's personal property to sell for the benefit of the Plaintiff at public auction. Any money received, less the sheriff's fee, will be given to the Plaintiff and applied towards the Judgment balance.
Conclusion
In conclusion, I hope this brief overview of the process of a lawsuit has been helpful. Again, be mindful that each case is unique and, as such, may not conform to this outline. If you have any questions feel free to contact me via email: wclos@lawyersmichigan.com.
Thursday, January 27, 2011
Welcome
Welcome to my blog. As you know, the legal field is fluid and constantly changing. Although basic legal principals seldom change the actual law is constantly evolving. In an effort to inform people of new developments in the law I have created this blog.
As such, I will be providing information from the legal field that you might not be aware of. This blog will monitor cases for developments that can have a drastic effect on your rights. Further, this blog will keep readers advised of interesting news items involving the legal field.
I hope you find this blog informative.
Please note, all legal cases are unique and this blog is intended to give the reader a brief overview of the law and not specific legal advice. If you have specific questions, feel free to email me at wclos@lawyersmichigan.com
As such, I will be providing information from the legal field that you might not be aware of. This blog will monitor cases for developments that can have a drastic effect on your rights. Further, this blog will keep readers advised of interesting news items involving the legal field.
I hope you find this blog informative.
Please note, all legal cases are unique and this blog is intended to give the reader a brief overview of the law and not specific legal advice. If you have specific questions, feel free to email me at wclos@lawyersmichigan.com
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