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CFPB Rule Clarifies Tenants Can Hold Debt Collectors Accountable for Illegal Evictions
Bureau Issues Interim Final Rule on Fair Debt Collection Practices Act (reprint April 19, 2021)
The Consumer Financial Protection Bureau (CFPB) today issued an interim final rule in support of the Centers for Disease Control and Prevention (CDC)’s eviction moratorium. The CFPB’s rule requires debt collectors to provide written notice to tenants of their rights under the eviction moratorium and prohibits debt collectors from misrepresenting tenants’ eligibility for protection from eviction under the moratorium. The CDC has established the eviction moratorium to protect the public health and reduce the spread of the virus. Debt collectors who evict tenants who may have rights under the moratorium without providing notice of the moratorium or who misrepresent tenants’ rights under the moratorium can be prosecuted by federal agencies and state attorneys general for violations of the Fair Debt Collection Practices Act (FDCPA) and are also subject to private lawsuits by tenants.
“With COVID-19 killing hundreds of Americans every day, kicking families out into the street during this pandemic may literally be a death sentence,” said CFPB Acting Director Dave Uejio. “No one should be evicted from their home without understanding their rights, and we will hold accountable those debt collectors who move forward with illegal evictions. We encourage debt collectors to work with tenants and landlords to find solutions that work for everyone.”
Nearly 9 million households are behind on their rental payments. Tens of thousands of renters are being evicted every week, often without being told of their rights under the CDC moratorium. As the CDC has found, tenants who are evicted may end up homeless or in crowded or shared living settings, increasing their vulnerability to COVID-19 and the risk of the disease spreading throughout communities. Such evictions can have long-term health, financial, and social consequences for families and children.
CDC Moratorium
A temporary eviction moratorium ordered by the CDC has been extended through June 30, 2021. The CDC order generally prohibits landlords from evicting tenants for non-payment of rent, if the tenant submits a written declaration that they are unable to afford full rental payments and would likely become homeless or have to move into a shared living setting. This prohibition applies to an agent or attorney acting as a debt collector on behalf of a landlord or owner of the residential property.
Tens of thousands of tenants and families are evicted every week, many of whom would have had a right to stay in their homes if they had given their landlord a completed CDC eviction moratorium declaration. According to a recent Government Accountability Office report, tenants facing eviction may be unaware of the moratorium or may not understand the steps they must take to act on its protections. Declarations can be submitted in languages other than English, and alternative forms are available online.
New Tenant Protections
Under the FDCPA interim final rule, debt collectors, including attorneys, seeking to evict tenants for non-payment of rent must provide tenants who may have rights under the CDC order with clear and conspicuous written notice of those rights. The notice must be provided on the same date as the eviction notice, or, if no eviction notice is required by law, on the date that the eviction action is filed.
Debt collectors must provide the notice in writing. Phone calls or electronic notice such as text messages or emails are not sufficient. The CFPB is providing debt collectors with sample language to satisfy the rule’s disclosure requirements.
Failure to provide the required notice to tenants is a violation of the FDCPA. The FDCPA provides a private right of action against debt collectors, and violators can be held liable for actual damages, statutory damages, and attorney’s fees. Class actions may be brought under the FDCPA.
Some states and localities have adopted their own eviction moratoria. Debt collectors may also be required to provide notice of these moratoria. The CFPB’s rule does not preempt more protective state law.
There are additional resources available to help struggling renters impacted by COVID-19. Congress has created the Emergency Rental Assistance Program, administered by the U.S. Department of Treasury. This program provides assistance through state and local government to help tenants catch up on missed payments to avoid eviction. Applicants must apply through their local programs.
The National Low Income Housing Coalition has a directory of state and local rental assistance programs that renters can use to find their local programs. Landlords may also be eligible for funds under the Emergency Rental Assistance Program. The pandemic’s health and economic crises threaten families and communities across the nation. According to the CFPB’s analysis and other data:
- Millions of families are at risk of being evicted: In December 2020 about 18 percent of renter households were behind on their rent, which means nearly 9 million households at risk of eviction. In a typical year, there are about 900,000 evictions nationwide. Over 27 percent of households with annual income under $25,000 were behind on their rent.
- Stopping evictions saves lives: Research shows that COVID-19 infection rates and mortality rates were higher when eviction moratoria were removed. The CFPB’s rule will help ensure that more renters are able to take advantage of their protections and avoid eviction.
- Evictions increase racial inequality: Black and Hispanic households are more than twice as likely to be tenants than white households, and they are also twice as likely to be behind on rental payments as of December 2020, according to a March CFPB report. Evictions impose substantial costs on individuals, families, and children, and having an eviction on your record can make it much harder to find a new rental property. Even an eviction filing can make it impossible for a family to locate new housing.
The CFPB has authority under the FDCPA to “prescribe rules with respect to the collection of debts by debt collectors.” Attorneys who engage in eviction proceedings on behalf of landlords or residential property owners to collect unpaid residential rent may be “debt collectors” as defined by the FDCPA. Given the urgency of the pandemic crisis, the Interim Final Rule will take effect on May 3, 2021. The CFPB believes this will give debt collectors time to come into full compliance. Debt collectors may begin complying with the rule before the compliance date.
Read the Interim Final Rule issued today.
Read a Fast Facts summary of the Interim Final Rule.
See the sample disclosure language for debt collectors.
Visit the CFPB’s housing portal to learn about renters’ rights and resources for struggling consumers.
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Be very careful when looking for “free” advice. COVID has given fraudsters even more incentive to lie, cheat and steal your hard earned money. Through the many “COVID” programs, there are hundreds of thousands of dollars available to help tenants stay in their homes. But, I am told those tenants are unaware of their rights or how to access those funds. Smart landlords are walking tenants through the process so the landlords do not face the foreclosure of their property.
Only rely on government websites. Contact the agency directly, do not respond to emails, phone calls or letters from someone saying they are with the government – THEY ARE SCAMS. Sources including: www.FHA.gov, www.CFPB.gov, www.FTC.gov, to name a few. Once armed with good information, then use your common sense to decide what is best for you.
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- Avoid COVID Mortgage Relief Scams
- Debt Collectors Profit Because of COVID and Want More Money
- COVID-19 SCAMS – WARNINGS FROM FTC
- Resources for Consumers – COVID-19
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How are foreclosures rising even though federal action has taken place? It seems these foreclosures are not happening to current live-in homeowners, rather they are foreclosing vacant and abandoned buildings, which can benefit neighborhoods and communities.
Although U.S. foreclosures have only risen 9% since last quarter, total foreclosures have risen 75% since last March 2020.
To learn more information about foreclosures during these moratoriums, click the link below.
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The post Despite Federal Moratoriums, Quarter 1 Foreclosures Increase appeared first on Allmand Law Firm, PLLC.
All businesses have ups and downs. Business owners know that there are inevitable cases of financial struggles and monthly income losses. These kinds of unforeseen situations may lead to the inability to pay financial obligations. Thus, filing for bankruptcy might be your only option to solve this problem. This will allow you to pay off all your debts and have a fresh start after bankruptcy. This is also a great opportunity to rebuild your credit and stay out of debt.
Among the different types of bankruptcy, Chapter 7 and Chapter 13 are considered the most common chapters. Since bankruptcy laws vary from state to state, a reliable Washington bankruptcy lawyer can help you understand these laws depending on the jurisdiction. Before you choose the chapter that you will file, it is important to know if you can meet the income requirements and if you can protect your assets using bankruptcy exemptions.
Your income will be measured using the means test. The results of this test will determine the most appropriate bankruptcy chapter that will suit your financial situation. In Chapter 7 bankruptcy, you will pass the means test if you meet the standard income requirements. If your income is lower than the state’s median income, then you are qualified to be granted a discharge from the Chapter 7 case. On the other hand, if your income exceeds the state’s median income, you may still be qualified to pass the means test after you deduct the allowable expenses.
In Chapter 13 bankruptcy, you may pay back some or the full amount of what you owe under a repayment plan if your income exceeds the limits of Chapter 7. The most important factor to consider in filing Chapter 13 is sufficient monthly income to wipe out your debts. The bankruptcy payment for Chapters 7 and 13 are calculated similarly. You are required to pay the non-exempt property value and the amount of your non-dischargeable debt. In case you want to make amendments to your choice of bankruptcy chapter, it is possible to change from Chapter 7 to Chapter 13 as long as you can reduce the length of the payment plan down to three years.
Before you file for bankruptcy, you need to know the rules on how you can protect your assets and properties from liquidation. Bankruptcy does not automatically imply that you will lose all the assets that you have acquired. According to the Washington bankruptcy exemption law, there are certain assets that you can protect from being liquidated depending on the bankruptcy chapter. However, some assets cannot be protected and these are classified under non-exempt property.
If you file Chapter 7, your bankruptcy trustee will be responsible for selling your non-exempt properties. The proceeds will be allocated to your creditors based on the payment plan. On the contrary, filing Chapter 13 bankruptcy will allow you to keep and save your property; however, you need to pay back the non-exempt property value to your creditor under the repayment plan guidelines within three to five years.
In Washington, there are several commonly used bankruptcy exemptions. You have the option to file for a homestead exemption that allows you to protect $125,000 worth of equity. The exemption amount is reduced to $15,000 if there are other personal properties used as a residence. Moreover, a motor vehicle exemption worth $3,250 can be applicable for one vehicle that you own. If you will file it jointly with your spouse, you are allowed to exempt one vehicle each.
As part of the bankruptcy procedure, you need to take two financial courses from accredited credit counseling agencies. It is mandatory to take credit counseling sessions before bankruptcy filing and a debt education course after the bankruptcy filing.
You may start your bankruptcy filing by accomplishing the free and official online bankruptcy forms from the website of the United States Bankruptcy Court. You need to fill out the form with the complete details of your present financial status. You need to declare all your assets, liabilities, monthly income, living expenses, bank account information, credit card debt, loan debt, and property transactions. A competent Washington bankruptcy attorney can assist you in such filing. You need to ensure that all the details written on your paperwork are accurate before you file your case to the local court and pay the filing fees.
Bankruptcies will affect your credit report for seven to ten years, depending on the chapter that you have filed. Chapter 7 bankruptcy will stay on your report for ten years from the filing date, while Chapter 13 bankruptcy will remain for seven years. The effect of bankruptcy in your credit report will gradually fade with time as you think of ways on how to improve your credit score
Bankruptcy is a progressive process that will help you solve your financial problems one step at a time. It entails hard work and effort for you to succeed. For legal help in filing bankruptcy, do not hesitate to contact us at Northwest Debt Relief Law Firm and schedule a consultation with our experienced Washington bankruptcy lawyers. We will assist you throughout the whole bankruptcy process as you aim for debt settlement and financial freedom
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New York City restaurants have been hurt by the mandatory closings, reduced operating hours, and outdoor dining requirements imposed by New York State and New York City as a result of the virus.Many restaurants have closed or filed for bankruptcy protection. However, for those that remain open or continue to operate, there may now be some relief thanks to the American Rescue Plan Act, which established the Restaurant Revitalization Fund to provide funding support to restaurants and other eligible businesses. Awards are based on losses incurred as a consequence of the pandemic, calculated as the difference between 2019 and 2020 receipts, less other federal assistance.Restaurants participating in this program can receive up to $10 million per business in compensation for pandemic-related revenue losses, up to a maximum of $5 million per physical location. Recipients are not required to repay the funding as long as funds are used for eligible uses no later than March 11, 2023.Who can apply for this relief? According to the SBA, eligible entities who have experienced pandemic-related revenue loss include:RestaurantsFood stands, food trucks, food cartsCaterersBars, saloons, lounges, tavernsSnack and nonalcoholic beverage barsBakeries (onsite sales to the public comprise at least 33% of gross receipts)Brewpubs, tasting rooms, taprooms (onsite sales to the public comprise at least 33% of gross receipts)Breweries and/or microbreweries (onsite sales to the public comprise at least 33% of gross receipts)Wineries and distilleries (onsite sales to the public comprise at least 33% of gross receipts)Inns (onsite sales of food and beverage to the public comprise at least 33% of gross receipts)Licensed facilities or premises of a beverage alcohol producer where the public may taste, sample, or purchase productsThe above requirements and how to apply can be found at https://www.sba.gov/funding-programs/loans/covid-19-relief-options/resta...For restaurants that remain open and want a second chance at business, the RTF can be a lifeline.The program should reduce the number of restaurants that would have had to close or declare bankruptcy in the future.In addition, this program may give restaurants leverage to renegotiate leases and/or good guy guarantees they previously granted to landlords.The program probably will not help guarantors of leases who have closed and been sued by their landlord. Jim Shenwick 212 541 6224 [email protected]
Entertainment Daily reports that Kerry Katona, the former Atomic Kitten member, is once again back on her feet after several years of financial struggles. After many years of financial hardships and going bankrupt several times, Katona impresses fans (and anyone struggling with finances) by announcing that she is yet again a homeowner!
From the article:
“Beaming from ear to ear in her snap, her caption includes:
‘Good morning you beautiful people!!! Well it’s official!! After losing EVERYTHING 13 years ago and having to rent I’ve finally bought me a house!! I want to share this news because many times over the years I literally felt suicidal! BUT I never gave up! If I can turn things around and get back on top ANYONE can. I’m not gonna lie credit where credit due I’m really proud of myself. DON’T EVER GIVE UP ON YOURSELF!!!!!!! Doesn’t matter if others don’t believe in you just as long as you believe in yourself!'”
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The post Kerry Katona Wows Fans With Huge Mansion After Previously Filing For Bankruptcy appeared first on Allmand Law Firm, PLLC.
There are different types of bankruptcy, and Chapter 7 Bankruptcy is one of the most commonly used. In a legal proceeding, the debtor petitions to have a fresh start and obtain financial freedom by discharging his debts. Chapter 7 Bankruptcy is also known as liquidation bankruptcy because this bankruptcy form will liquidate or sell your personal property except for some properties exempt by law. The proceeds of the sale will then be used to pay the creditors. According to bankruptcy law, declaring bankruptcy and deciding to file for bankruptcy is a right given by federal law. Once you file for bankruptcy, the United States bankruptcy court will handle the bankruptcy cases.
What can Filing Bankruptcy Do for Me?
When you file bankruptcy in Washington regardless of the bankruptcy forms, you automatically gain bankruptcy protection to stop creditor harassment including debt collectors and collection until your debt problems are sorted out by the bankruptcy court. If you filed for bankruptcy, it enables you to:
- Discharge, wipe out or eliminate debt allowed by the Bankruptcy Code including credit card debt and medical bills
- Stop foreclosure
- Prevent harassing creditors from repossession and wage garnishment
- Contest creditors that committed bankruptcy fraud
What can Filing for Bankruptcy Not Do
There are different types of debt and it is not a guarantee that when you declare bankruptcy, you will automatically have no liabilities and be debt-free. There are certain debts that are not subject to be discharged debt such as:
- Student loan
- Alimony
- Child support
- Tax debt
- Debts under the creditors’ rights and secured debt
Can you Protect your Property with the Bankruptcy Exemptions of Washington?
A petition for bankruptcy using Chapter 7 will result in most of your assets being sold off but not everything. In some cases, you might not even lose anything. Under the bankruptcy exemptions in Washington, the federal bankruptcy exemptions are also present and it lets you choose in the lists available there. If you don’t protect your assets in Chapter 7, your nonexempt properties will be put under the care of a trustee and he will be the one to sell and distribute the proceeds to your creditors to pay for what you owe.
What are the Requirements in Washington for Chapter 7 Bankruptcy Filings?
You must first qualify before filing a bankruptcy petition and one of them is the means test, which determines whether or not your monthly income is within the median income prescribe by the bankruptcy laws. After that, you need to attend credit counseling under a qualified provider approved by the United States Trustee. Once you are done with both, you can gather the needed paperwork and proceed to file a bankruptcy.
Talking to a Bankruptcy Attorney
A person can file a bankruptcy case without the need of bankruptcy attorneys but doing so is risky. The laws are continuously changing and the bankruptcy process can be very complicated. If you are considering bankruptcy but you are not yet certain of your bankruptcy options, we at the Northwest Debt Relief Law Firm will help you get through your debt problems. Call our bankruptcy lawyers in Washington who are experienced with the United States Bankruptcy Code and will tailor the best advice for your specific needs.
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There is so much mis-information about bankruptcy and how it works, or does not work. Know your options before making any decision to file or not to file bankruptcy or participate in a “debt workout scheme”.
Below is a YouTube video presented by John Oliver, who does a fairly decent job describing the challenges with filing bankruptcy, including the history of our current bankruptcy laws.
Please excuse the occasional foul language or crude comments. The substance is worth the viewing.
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Educate yourself and never assume that”cheap” really means cheap. It means that you will pay later. It may mean your cheap attorney treats you like a cash register. They don’t take the time to educate you or fully inform you about the serious issues that are part of a path you are choosing to take (like filing bankruptcy). You pay a fee to file the bankruptcy, then pay or lose triple that to get out of the problems your attorney “forgot” to tell you about (like using your tax refunds or your mother being sued because you paid her back just before filing the bankruptcy). Why did they forget? Because they can make triple the fees. It is that simple.
My point is that ‘cheap’ is never cheap. Take time to investigate anyone you are hiring, whether a plumber, handyman or attorney. Ask lots of questions about what you are obligated to do in the long run.
@media only screen and (max-width:980px) {.fusion-title.fusion-title-2{margin-top:0px!important; margin-right:0px!important;margin-bottom:6px!important;margin-left:0px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-2{margin-top:10px!important; margin-right:0px!important;margin-bottom:10px!important; margin-left:0px!important;}}– Diane L. Drain.fusion-body .fusion-builder-column-2{width:100% !important;margin-top : 0px;margin-bottom : 0px;}.fusion-builder-column-2 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 30px !important;margin-right : 1.92%;padding-bottom : 0px !important;padding-left : 45px !important;margin-left : 1.92%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}.fusion-body .fusion-flex-container.fusion-builder-row-2{ padding-top : 0px;margin-top : 0px;padding-right : 0px;padding-bottom : 0px;margin-bottom : 0px;padding-left : 0px;}.fusion-button.button-1 {border-radius:10px;}.fusion-button.button-1.button-3d{-webkit-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);-moz-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);}.button-1.button-3d:active{-webkit-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);-moz-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);}Click here for steps to your free bankruptcy consultation
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- Hiring a Cheap Lawyer is very Expensive
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- 60 and Over in the Time of COVID-19? Tips to Stay Financially Healthy.
- Bankruptcy after COVID-19. What Should You Do to Avoid Mistakes?
- 10 Things You Need to Know Before Filing Bankruptcy
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Filing bankruptcy is a great debt relief tool especially after suffering from financial problems and unmanageable debt. There are different types of bankruptcy, such as Bankruptcy Chapter 7, Chapter 11, and Chapter 13. This article will try to give you a quick overview of how much it will cost to file bankruptcy and how a bankruptcy filing can get your debts wiped.
While filing bankruptcy can give you a fresh start, it also has some disadvantages. It can potentially give you a low credit score (although it’s likely that you already have bad credit even before filing) and give you a hard time applying for loans. So before deciding whether to file bankruptcy or not, it is best to look at all the facts. Getting a bankruptcy attorney in Washington can also help you weigh your options and explore other debt relief tools.
How Much Does a Bankruptcy Filing Cost?
Aside from knowing how bankruptcy works, the first thing that you should know is how much a bankruptcy will cost. When filing a Chapter 7, bankruptcy filers must pay a filing fee of $338(unless you’re qualified to file a waiver), and $60 for pre-bankruptcy credit counseling, and $60 for a pre-discharge debtor education course.
Another expense that you should consider are attorney fees. Bankruptcy proceedings can be complicated, and committing mistakes during this process can lead to bigger problems in the long run. Hiring an immigration attorney can help you prepare your bankruptcy petition, prevent creditor harassment, and represent you in bankruptcy court. Actual fees may vary, and bankruptcy costs can range from a few hundred dollars to more than a thousand dollars. At Northwest Debt Relief, we have bankruptcy attorney fee payment plans that aren’t financially heavy on the pocket while we get you under court protection and start the rebuilding process.
What Happens After a Bankruptcy Discharge?
If you file a Chapter 7 bankruptcy, it will usually wipe out all your qualifying debts or unsecured debts (a debt for which the creditor does not have a security interest in collateral) such as credit card debts, medical bills, most personal loans, business debts, past-due utility bills, tax penalties, and unpaid taxes past a certain number of years. Secured debts (debt backed by collateral) such as mortgage and auto loan and priority debts such as alimony and child support aren’t wiped out in a Chapter 7 bankruptcy.
Can I Keep My Car or House After Bankruptcy Chapter 7?
Secured debts such as a house mortgage or a car loan under a Chapter 7 bankruptcy can be kept if:
- Your property is exempt from being repossessed under the Washington bankruptcy laws
- You aren’t late in your loan payment plans or you’ve received a loan modification when you file for bankruptcy
Most people who file a Bankruptcy Chapter 7 get to keep their homes or cars after filing bankruptcy. This is one of the advantages of choosing Chapter 7: you get to keep your assets by canceling your unsecured debts, like credit card debt, to pay secured debts owed.
Even while you may lose your car or house, bankruptcy still has its advantages. Talk to a Washington bankruptcy attorney today to know more about how to keep your assets in a Chapter 7 bankruptcy.
The process of filing Chapter 7 is fairly quick and easy. It can get you out of debt in as early as 6 months or even less. An automatic stay will also be put in place, which means that creditors must stop collecting money while the bankruptcy is ongoing.
Need Help in Filing Bankruptcy?
Declaring bankruptcy is a huge move, and seeking assistance from a bankruptcy law firm in Washington can make the process easier. At Northwest Debt Relief, we have Washington bankruptcy attorneys who show you the different types of debt, assist you in the bankruptcy process and paperwork. Call us today so we can give you a fresh start.
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Although COVID-19 turned most industries upside down, the housing market is doing better than ever. Prices are skyrocketing, you’ll rarely see vacant homes, and only a few homeowners have completely been foreclosed on. Even if foreclosure is coming your way, the national housing shortage gives you the opportunity to sell your home for more than it’s worth…and fast!
From the article:
“So if homeowners can’t make their mortgage payments, they can take another path, one far less painful than foreclosure: sell, often at a hefty profit….’Right now, we’re at very low housing inventory rates, just a record low,’ says Marina Walsh, vice president of industry analysis at the Mortgage Bankers Association. That means homes are selling quick, often for well over the asking price as buyers compete over them. ‘There’s just not enough housing out there for the demand, which is a big, big change from the Great Recession.'”
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The post The Surprising Reason the Nation May Avoid Another Foreclosure Crisis appeared first on Allmand Law Firm, PLLC.
Arizona Bill wants Judgment Creditor to get paid before homeowners when house is refinanced (something Arizona law has not allowed since mid 1950s).
Concerns about Arizona HB 2617, especially with the amendments: will allow old and new judgments to attached to homesteads.
What the bill and amendments do: There are three parts to the bill & amendments. First, the bill raised the homestead exemption from $150,000 to $250,000. Second, the bill provides that any existing judgment or lien to become an automatic lien on a person’s home. This provision is retroactive and reverses the law that has been in place for more than 50 years, protecting the homestead from judgments. Third, the Toma amendment to the bill allows at judgment creditor to seize any funds “from the refinancing of a homestead property …and the judgment creditor must be paid from those cash proceeds before any remaining cash proceeds are paid to the judgment debtor (the homeowner).”
The homestead exemption has been an essential protection for Arizona residents since nearly the beginning of Statehood. The Courts have concluded that the legislative purpose of the homestead exemption statutes was to allow the family to keep a certain amount of money to provide a shelter for the family. See for example, Union Oil Co. v. Norton-Morgan Commercial Co., 23 Ariz. 236, 202 P. 1077 (1922); Security Trust & Savings Bank v. McClure, 29 Ariz. 325, 241 P. 515 (1925); Wheeler Perry Co. v. Mortgage Bond Co., 41 Ariz. 247, 17 P.2d 331 (1932); Schreiber v. Hill, 54 Ariz. 345, 95 P.2d 566 (1939); Seaney v. Molling, 62 Ariz. 81, 153 P.2d 532 (1944). The present legislation will allow the invasion of the homestead overturning the long-standing legislative protection of the family to the benefit of creditors. It should be noted that the homestead does not extend to obligations for child support or alimony.
The bill and amendments change the existing law. Currently the law (A.R.S. §964 (A)) does not allow judgments to attach to homesteads. Under the new bill, all existing recorded judgments or liens will automatically attach to all property, including a family’s homestead. The text of the new bill reads:
“B. A CIVIL JUDGMENT SHALL BECOME A LIEN ON THE REAL PROPERTY OF THE JUDGMENT DEBTOR, INCLUDING THE JUDGMENT CREDTOR’S HOMESTEAD PROPERTY, THAT IS LOCATED IN THE COUNTY N WHICH THE JUDGMENT IS RECORDED, WHETHER THE PROPERTY IS THEN OWNED BY THE JUDGMENT DEBTOR OR IS LATER ACQUIRED, FROM AND AFTER THE TIME OF RECORDING AS PROVIDED IN SECTION 33-961 UNTIL SATISFIED OR LIFTED. THIS SUBSECTION APPLIED RETROACTIVELY TO ALL JUDGMENTS WITHOUT REGARD TO WHEN THE JUDGMENT WAS RECORDED.”
When a bankrupt debtor requests an order stating that a discharged judgment does not attach to their homestead exemption, for decades the judges have refused to issue these orders because of A.R.S. §33-964 (A). Under A.R.S. § 33-964 (A) “a judgment shall become a lien for a period of ten years from the date it is given, on all real property of the judgment debtor except real property exempt from execution, including homestead property, (emphasis added)” This proposed bill will cause a deluge of filings in the bankruptcy court, causing thousands of bankruptcy cases to be reopened in order to obtain the order to avoid any existing liens that the judges previously denied.
A bankruptcy discharge eliminates the debt owed to the judgment creditor. A secured lien stays attached to the collateral (the home), if the secured lender is not paid they may foreclose, but may not sue the borrower. This bill will allow all judgment creditor claims to survive the intent of the bankruptcy discharge – to give the debtors an opportunity for a fresh start.
The Livingston amendment and the Toma Floor amendment to the bill allows the judgment creditor to invade the homestead proceeds in the case of a refinance. The homeowner refinances their home for several reasons, but normally to reach the excess equity in their home, which is usually less than their homestead proceeds. For instance, the home is worth $300,000, with a first mortgage of $150,000, leaving equity of $150,000 which is protected as a homestead exemption. The borrower needs to repair their home, replace broken A/C and pay off medical bills so puts a second deed of trust on their home for $90,000. Resulting in two secured liens: first for $150,000, a second for $90,000, leaving the homeowner $60,000 in a homestead exemption. The Toma floor amendment would allow a judgment creditor to take the refinancing funds (up to $90,000 – the loan amount) leaving the owner of the home with no proceeds to use for the repairs, broken A/C or to pay off medical expenses, but now to have two loans and only $60,000 in equity (homestead funds). Prior to signing the loan agreement, there is no warning to the homeowner/borrower the judgment creditor will receive all the funds first. The end result is the homeowner/borrower cannot make the necessary repairs on their home, most likely do not pay the second lender, who ultimately forecloses on the home.
Toma amendment, Page 2, lines 1-3 – makes it very clear that should the borrower refinance their home, the borrower loses their homestead exemption as to the cash proceeds. “THE HOMESTEAD EXEMPTION DOES NOT ATTACH TO THE PERSON’S INTEREST IN IDENTIFIABLE CASH PROCEEDS FROM THE REFINANCING OF THE HOMESTEAD PROPERTY.”
.fusion-body .fusion-builder-column-1{width:100% !important;margin-top : 0px;margin-bottom : 0px;}.fusion-builder-column-1 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 0px !important;margin-right : 1.92%;padding-bottom : 0px !important;padding-left : 0px !important;margin-left : 1.92%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-1{width:100% !important;}.fusion-builder-column-1 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-1{width:100% !important;}.fusion-builder-column-1 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:980px) {.fusion-title.fusion-title-1{margin-top:15px!important; margin-right:0px!important;margin-bottom:0px!important;margin-left:0px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-1{margin-top:10px!important; margin-right:0px!important;margin-bottom:10px!important; margin-left:0px!important;}}MUSINGS BY DIANE:
HB 2617 is a Trojan horse. This bill is the child of the the AG’s office, but then was taken over by the very strong creditor industry. On it’s face, the bill appears to be a good thing (like the Trojan Horse). It gives the homeowner additional protection on their homestead. But, behind their backs the creditor lobby is taking away decades of protection that all Arizona homeowners have cherished. That is the protection of some amount of equity in their home. This bill will allow ALL OLD and new judgments to attach to the cash-strapped homeowner’s equity. If the homeowner ever tries to sell, ALL judgments (past and present) will have to be paid after they get their homestead exemption. Well that might not be a bad deal so long as the homeowner understands.
But NOW THE SNEAKY part of the bill. If the homeowner ever REFINANCES their home, and take out any cash as part of the refinance, ALL of these funds go FIRST to their judgment creditors (old and new), before the homeowner sees a penny. So much for using those funds for the badly needed roof, replacement A/C unit, or medical needs.
The bill went through the House without one ‘No’ vote because the House members were lied to (this comes directly from a House member). Now the bill is in the Senate and quietly sneaking it’s way through the back rooms and alleyways of the Legislator, carried by the creditor lobby.
Don’t like this? Well then do something about it contact your Senators and say “no to HB2617”.
@media only screen and (max-width:980px) {.fusion-title.fusion-title-2{margin-top:0px!important; margin-right:0px!important;margin-bottom:6px!important;margin-left:0px!important;}}@media only screen and (max-width:640px) {.fusion-title.fusion-title-2{margin-top:10px!important; margin-right:0px!important;margin-bottom:10px!important; margin-left:0px!important;}}– Diane L. Drain.fusion-body .fusion-builder-column-2{width:100% !important;margin-top : 0px;margin-bottom : 0px;}.fusion-builder-column-2 > .fusion-column-wrapper {padding-top : 0px !important;padding-right : 30px !important;margin-right : 1.92%;padding-bottom : 0px !important;padding-left : 45px !important;margin-left : 1.92%;}@media only screen and (max-width:980px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}@media only screen and (max-width:640px) {.fusion-body .fusion-builder-column-2{width:100% !important;order : 0;}.fusion-builder-column-2 > .fusion-column-wrapper {margin-right : 1.92%;margin-left : 1.92%;}}.fusion-body .fusion-flex-container.fusion-builder-row-2{ padding-top : 0px;margin-top : 0px;padding-right : 0px;padding-bottom : 0px;margin-bottom : 0px;padding-left : 0px;}.fusion-button.button-1 {border-radius:10px;}.fusion-button.button-1.button-3d{-webkit-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);-moz-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);}.button-1.button-3d:active{-webkit-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);-moz-box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);box-shadow: inset 0px 1px 0px #fff,0px 5px 0px #003d00,1px 7px 7px 3px rgba(0,0,0,0.3);}Click here for steps to your free bankruptcy consultation
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Updated daily, this blog will keep you informed on the latest bankruptcy news! 
Learn more about how Bankruptcy works and what you need to know.