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Mortgage Lending: MICHIGAN
Michigan law provides for a statutory forfeiture proceeding upon default under a land contract, or the seller may elect to carry out a foreclosure instead.64 The forfeiture proceeding allows for a redemption period in which the buyer may redeem by paying the arrearage;65 whereas in a foreclosure the buyer may only redeem by paying the full, accelerated loan balance.66 Therefore, some land contract sellers might elect to pursue a foreclosure, rather than
Mortgage Lending: MINNESOTA
Minnesota has two basic protections for land installment contract buyers. Under one provision, a “multiple seller” (someone who has arranged four or more contracts in the past twelve months) must provide a notice five days before execution of the contract that provides basic information about the contract.74 The notice includes a disclosure regarding which party pays property taxes, pays property insurance, and makes repairs. It also includes some basic language about the nature of land installment contracts and their complexity.
Mortgage Lending: MONTANA
Although there is no Montana substantive law directly regulating land contracts, according to a legal aid advocate in the state, many land installment transactions adopt aspects of the Montana Small Tract Financing statute, which allows a seller to transfer the deed to an escrow agent pending the terms of the agreement.77 The advocate we spoke to explained that a very high percentage of Montana real estate transactions happen through this “trust indenture” process, though in some ways these trust indentures are closer to mortgages.
Mortgage Lending: NEVADA
According to Nevada’s unfair and deceptive practices statute, it is a deceptive practice for the seller in a land installment contract to fail to disclose in writing to the buyer any encumbrance or other legal interest in the real property, any condition known to the seller that would affect the buyer’s use of the property, and the nature and extent of legal access to the real property.80 In addition, it is a deceptive practice for the seller to fail to record the contract within thirty days after accepting the first payment on the contract.
Mortgage Lending: NEW JERSEY
Advocates argue that New Jersey’s Fair Foreclosure Act applies to land contracts as it applies to any “mortgage, security interest or the like” secured by the debtor’s residence.82 The act provides two opportunities to cure a default: (1) prior to the initiation of a foreclosure proceeding, and (2) at any point prior to the entry of judgment.83 The statute does not explicitly state that a foreclosure must be filed if the Act applies, but there is a strong implication that foreclosure is the requ
Mortgage Lending: NORTH CAROLINA
Under North Carolina law a contract for deed must contain a number of disclosures, and a copy of the contract must be provided to the buyer at the time the contract is signed.
Mortgage Lending: NORTH DAKOTA
In North Dakota, a contract for deed may only be terminated after a required notice of right to cure is served on the buyer, unless the contract will be terminated through a judicial action at law or in equity.
Mortgage Lending: OHIO
Ohio law imposes minimal requirements on land installment contracts and protections for buyers in default.
Mortgage Lending: OKLAHOMA
Oklahoma law deems all contracts for deed that are “made for the purpose of establishing immediate and continuing right of possession” to be mortgages and requires foreclosure in the case of default.99 Prior to foreclosure, the seller must ensure that “the documents have been filed of record in the county clerk’s office” and the applicable mortgage tax is paid.100 This simple requirement provides a substantial amount of protection to contract buyers as they do not face forfeiture and instead are
Bankruptcy Basics: Student Loans
The United States Department of Education’s National Student Loan Data System (NSLDS) provides information on federal direct and guaranteed student loan obligations online at https://nsldsfap.ed.gov/login. After creating a Federal Student Aid (FSA) ID, students can check loan amounts, loan types, loan status, and disbursements. Alternatively, the student can call the Federal Student Aid Information Center at (800) 4-FED-AID ((800) 433-3243) or (800) 730-8913 (TTY).
Consumer Bankruptcy Law and Practice: 2.4.2 Jurisdiction
A principal goal of the 1978 Bankruptcy Reform Act had been to simplify a jurisdictional scheme that had caused endless litigation for the previous eighty years under the Bankruptcy Act of 1898. This simplification was to be accomplished by giving the bankruptcy court broad and pervasive jurisdiction over all matters related in any way to the bankruptcy case.18 But granting such broad jurisdiction to a non-Article III court was found unconstitutional by the United States Supreme Court.19
Consumer Bankruptcy Law and Practice: 2.5.1 Contents of the Estate
The term bankruptcy estate describes the aggregation of property rights that can be administered by the court in a bankruptcy case.
Consumer Bankruptcy Law and Practice: 2.5.2 Exceptions for Certain Property Acquired Within 180 Days of Filing
Although most property acquired by the debtor after commencement of the case does not come into the estate,79 there are exceptions for certain types of property acquired within 180 days of filing, which are treated as property of the estate.
Consumer Bankruptcy Law and Practice: 2.5.3 Pensions and Spendthrift Trusts
Particularly thorny issues arise in evaluating whether the beneficiary’s interest in pensions, retirement funds, certain employee benefit accounts, and spendthrift trusts come into the estate.
Consumer Bankruptcy Law and Practice: 2.5.4 Education Savings Accounts and ABLE Accounts
The 2005 amendments added new exclusions from the bankruptcy estate for certain education savings accounts.
Consumer Bankruptcy Law and Practice: 2.5.5 Pawned Personal Property
Another exclusion from the bankruptcy estate added in 2005 concerns pawned property.
Consumer Bankruptcy Law and Practice: 2.5.6 Tax Refunds and the Earned Income Tax Credit
The right to receive a tax refund for a tax year that has ended before the petition date is clearly property of the estate.137 The debtor may also have a property interest in excessive withholding by an employer for the then-current tax year that becomes a part of a refund due after the filing of the bankruptcy.138 When such withholdings do result in a refund, the refund is often prorated over the entire year, with the prebankruptcy portion considered property of the estate.
Consumer Bankruptcy Law and Practice: 2.5.7 Personal Injury Claims and Other Causes of Action
There can sometimes be significant issues concerning whether a cause of action accrued prior to the bankruptcy petition and therefore is the property of the estate. These issues have come to the fore when debtors and trustees have been contacted long after the bankruptcy case and informed that the debtor has a right to a class action settlement payment, often in cases involving defective medical devices. In some cases, debtors have received these settlement payments even though they have suffered no injury.
Consumer Bankruptcy Law and Practice: 2.7 The United States Trustee
Every judicial district, with the exception of those in Alabama and North Carolina, is part of a larger United States Trustee District, served by a United States trustee and one or more assistant United States trustees.190 For political reasons, neither Alabama nor North Carolina has a United States trustee.191
Consumer Bankruptcy Law and Practice: 5.1.1 Purpose of These Four Chapters
Chapters 5 through 8 of this treatise, unlike the first four chapters, are intended primarily to be a practice guide for practitioners handling consumer bankruptcy cases.
Consumer Bankruptcy Law and Practice: 5.1.3 Use of the Materials in the Treatise
To facilitate thorough and competent preparation of bankruptcy cases, this treatise also contains a number of other materials in Volume 2.
Consumer Bankruptcy Law and Practice: 5.2 The Importance of Getting All the Facts
Before a bankruptcy case can be filed, it is necessary that a decision be made that bankruptcy is, in fact, the best vehicle for dealing with the problems facing a particular client. Indeed, most of the legal analysis that occurs in a typical consumer bankruptcy case involves comparing bankruptcy with other possible avenues of relief.
Consumer Bankruptcy Law and Practice: 5.3.2 Filling in the Complete Picture
Once bankruptcy is being seriously considered, and has perhaps been tentatively decided upon, much more information is necessary. Only after all of this information is gathered can bankruptcy be finally recommended. Again, the principal source of information is usually the client, but methods of tapping this source may vary.