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Real Estate Attorney for Real Estate Investors

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Most people understand that a Buyers Agent is the agent that represents a buyer through a real estate transaction and the Sellers Agent represents the Seller during the transaction. Often, buyers do not understand exactly what "Limited Agency" (sometimes referred to as Dual Agency) is and how it will impact their sale or purchase. In Utah, the exact definition of Limited Agency taken directly off a Limited Agency Consent Agreement from Utah Association of REALTORS® reads:

"A Limited Agent represents both seller and buyer in the same transaction and works to assist in negotiating a mutually acceptable transaction. A Limited Agent has fiduciary duties to both seller and buyer. However, those duties are "limited" because the agent cannot provide to both parties undivided loyalty, full confidentiality and full disclosure of all information known to the agent. For this reason, a Limited Agent must remain neutral in the representation of a seller and buyer, and may not disclose to either party information likely to weaken the bargaining position of the other; such as, the highest price the buyer will pay or the lowest price the seller will accept. A Limited Agent must, however, disclose to both parties material information known to the Limited Agent regarding a defect in the Property and/or the ability of each party to fulfill agreed upon obligations, and must disclose information given to the Limited Agent in confidence, by either party, if the failure to disclose would be a material misrepresentation regarding the Property."

In Utah, it is legal to act as a limited agent, but is it in a buyer or sellers best interest to allow a Limited Agency? If you work exclusively with a Buyers Agent, that agent should be working to locate your home and negotiate the best deal on your behalf. They should be somewhat aware of your financial situation and how much you ultimately plan to spend for the purchase of a new home. The Sellers' Agent is hired by a seller to market the property with the intention of producing a buyer. This agent is usually aware of the sellers' position and how much they would be willing to take for the property.

This is where the conflict may present its self. If the Agent is representing both the buyer and the seller in the same transaction, they are bound by fiduciary duties to both clients. It would be impossible to obtain the best deal if the representing agent must remain neutral. The negotiation will only result a mutually "acceptable" deal. This may or may not be the "best deal".

A Buyers Agent, who is representing a clients interest, will be able to share pertinent information they learn that can result in a lower offer than the client may have initially presented. Alternatively, a Sellers Agent may discover the buyer will likely accept a counter resulting in a higher net to the seller. Information learned can be shared during an exclusive agency, however when Limited Agency is a factor, this information can not be shared. In Utah, each client has the choice to decline or accept limited (or dual) agency. The Exclusive Buyer Broker Agreement has a designated section that fully explains (and requires a signature to accept) Limited Agency. Also, should the Limited Agency situation actually arise, the client will again have to sign an agreement to this. Each party (the buyer or the seller) has the right to obtain an independent agent.

Many clients often point out the fact that the Agent will be making double the commission. This should not be a consideration for either party involved in Limited Agency. You must remember this agent will make commission on their listing no matter WHO sells it, and if the Agent is already working with the buyer, then anything the buyer purchases the Agent will make commission on that as well. Essentially any deal could be a "double commission" when an agent works with both buyers and sellers independently. So it is unfair to make the Agents commission a factor or a negotiation tool, for either party.

Limited Agency... should YOU participate? I suppose it depends on how well you know your Agent. Will you get the best deal? Possibly. You may have to rely on some of your own instincts and research to determine what the best deal will be, as you will not have full disclosure and advice from your limited agency real estate professional.

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Real Estate Lawyer - Why do you Need one?

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As a landlord with my own personal rental properties, and as a property manager for some of my investor clients, I see all kinds of expenses that can arise without warning in the rental world. Vacancies, repairs, evictions and location all play a part in the amount of money that an investor will need to have on hand in order to make the rental a viable venture. Planning for a rainy day is an essential component in the success of any real estate investment.

Vacancies

The average vacancy rate in the state of Utah for 2017 was 5.5%. However, as recently as 2014, that figure was as high as 8.9%. That means that for every year that a property is used as a rental, there is a high probability that it will stand vacant for at least 1 month. As we are all aware, the mortgage payment is still due whether the rent is being paid or not, so there better be something in the piggy bank to bridge the gap.

Even when the rental market is relatively strong, there is always the chance that you will end up with a tenant that stops paying. On the front end, potential deadbeat tenants can be avoided by doing a thorough background check. Run a credit check to find out their payment history and if there is a pattern of broken commitments. Obtain the phone numbers of references, employers and past landlords, and call them. On the back end, you can protect yourself by collecting the first month's rent, a deposit, and the last month's rent at the time the lease agreement is signed. That way, if a tenant does stop paying, you have at least a month of reserves (provided by them) to get them out of the property.

Evictions

The eviction process in the state of Utah is a four-step process:

a.) First, the landlord must serve the tenant with an eviction notice (also known as a "Notice to Quit" or "Notice to Vacate."

b.) If the notice is ignored, the landlord files a lawsuit and the tenant is served with a court summons and complaint.

c.) The judge will rule either in favor of the landlord or tenant after the case is presented.

d.) If the ruling is in favor of the landlord, the court will issue an "Order of Restitution" which directs the sheriff to forcibly remove the tenant from the premises.

The cost associated with an eviction will vary depending on if lawyers are involved and whether or not the eviction is disputed by the tenant. You can find more information at utcourts.gov/howto/landlord [http://utcourts.gov/howto/landlord].

Repairs

The repairs necessary to keep a property in working order seem to be directly proportionate to its age. I have a town home rental that was built in 1997, and the repairs have been limited to relatively simple things like toilets and faucet aerators. However, one of my clients purchased a home built in the late 60's, and I have seen them replace the air conditioning unit, rehab the furnace, fix the fireplace flu, repair the sprinklers, and patch the leaky roof (all in the last 2 years). Needless to say, get a comprehensive inspection of all the home's systems before closing on the purchase. You'll be glad you did. However, there is no such thing as the maintenance-free home, so plan on having some reserves to be able to pay the handyman.

Location

The amount of rent you can charge will be dictated by the area you are in. Additionally, if you rent in low-income areas, you can expect the tenant turnover to be much higher than in high-income areas. For myself and the clients I work with, a lease term of 1-year is minimum when signing an agreement. Recently, in a high-end neighborhood on the east side of Salt Lake County, we had a couple sign a 2-year agreement (with an expressed interest in staying even longer than that). Choose your location wisely - you'll be glad you did. It will lead to fewer vacancies, and therefore the need for smaller cash reserves.

Remember, if you run out of money, you'll be out of business in a heartbeat. While "getting in the landlord game" can be relatively easy with decent credit and a down payment, it is only the beginning. Go in with your eyes open, and you won't be taken by surprise.

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Commercial Real Estate Lawyer - How to Avoid Costly Mistakes

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Ogden Valley in Utah is the most picturesque place on the earth. If you are a lover for raw natural beauty then this valley has a lot to offer you. Living in the lap of nature is a divine experience. This place is really perfect for nature lovers. It has a natural charm that has been untouched by man's exploitation of his surroundings. It is free from pollution since most part of this valley is rural with typical mountain community. Commercial zoning is very little. You can either live or vacation in this mountainous region. Snow basin real estate consultants can help you acquire property in this area. However, if you are considering it as a tourist destination, you should hire the services of Ogden Utah Lodging.

Information about the Valley

The valley is centrally located between Snow Basin, Powder Mountain and Wolf Creek, Utah. It has three townships renowned for snow sports, music concerts, biking, hiking and dining. It is also famous for skiing. Talented tri-athletes participate in huge numbers for snow sports competition. This place is perfect for a vacation. If you are thinking of investment or buying a second home then Powder Mountain real estate can be of great help. They have thorough knowledge of this place. When you live in a place for 20 years, you know every nook and corner of it. This experience serves as an advantage and you can expect the best advice.

Tips to Hire Ogden Valley Utah Real Estate Consultant

There are some features that you must consider while hiring a real estate consultant. In this article, we share some tips to help you make the right decision.

* The real estate consultant should be forthright in his approach. He should be honest, diligent and fair in his dealings. Exaggerating facts, over-selling, miss-selling and inflating the rates are unfair business practices. Stay away from such realtors. It is easy to identify them. All you need is a little presence of mind and carefulness. Pay them a visit personally to find out their traits and qualities.

* Ogden Valley real estate consultant possesses great knowledge about the area. It usually comes with experience and may be extensive if the realtor is a local. Someone who has lived around the valley or city will know more about the place than an outsider will.

* The realtor should be thorough with legal framework. Ideally, he must appoint a lawyer for preparing the property agreement. Ensure that the paperwork is in place, if required get it checked by a lawyer.

* The broker must possess a valid license for trading in real estate/property. This pre-requisite will protect you in case there is a discrepancy. Keep these tips in mind while hiring Ogden valley Utah real estate.

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Real Property Attorney - What is the real estate lawyers role?

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Utah allows for both in court or judicial and out of court or non judicial foreclosures. As in most states where both processes are used, the vast majority of foreclosures are non judicial. The language in most mortgages or deeds of trust allow for this with a power of sale clause.

In the absence of the power of sale clause judicial or court process must be followed. This takes a lot longer. In judicial foreclosure, the bank must file a complaint with the court against the homeowner. They do this to get a decree of sale from the judge. When the court determines that the borrower is in default, they will give the homeowner a period of time in which they can come up with the amount that is past due, plus costs and attorney fees. If the homeowner can do this in that time frame. If the homeowner can do this in that time frame the can avoid a foreclosure and keep their home. If they do not come up with that money in the allotted time, an auction will be held and the property will be awarded to the highest bidder.

Most homes that go to auction in Utah and most other states as well, are not bid on because so much is owed on the home, that it is not a good enough deal for the bidders. In this situation, the home is awarded to the lender. In other words, it goes back to the bank, and they have to try to sell it again. This is time consuming and expensive for the bank.

The vast majority of foreclosures in Utah are taken care of non- judicially. That means that there is a power of sale clause in the mortgage or deed of trust.

In such an out of court foreclosure, a notice of sale must be published for three consecutive weeks in a local paper. The final advertisement in this series must be placed a minimum of 10 days prior to the scheduled sale date. It can not be placed any further out from the sale date than thirty days.

This same notice of sale must be posted two other places, no later than twenty days in front of the scheduled sale date.

The required placing of these public postings of notice of sale are at the county recorders office in the county where the home is located and on an easy to find place on the home itself.

This notice of sale must contain the place, date, and time of the scheduled sale. This place is always on the courthouse steps and the time is always between 8 am and 5 pm.

Home owners do have a right of redemption period Utah. This is a time when they can legally re-purchase that home after it has been sold at the trustee's sale. In Utah, a judge can even extend that right of redemption period. This almost never happens, but it does make the former owner feel like he could get his house back, if he wanted to.

Deficiency judgments are allowed in Utah. This gives the bank the right to pursue the home owner, for any amount of difference between what the home sold for at auction, and what was owed on the loan.

In Utah, the bank even has the right to seize the property until they have received this amount of money. I have never heard of this occurring, but it is allowed.

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Real Estate Lawyer Explains Utah Foreclosure Laws

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Prices of homes for sale in Salt Lake City Utah significantly declined in 2008. On average, Charleston area home values are about 15% lower compared to 2008. The lower property values have caught the attention of international and local home buyers searching for amazing deals on Charleston properties. If you want to find a great deal on home in the Charleston area you are not alone. The best priced homes in areas like Mount Pleasant and downtown Charleston are receiving multiple offers a few days after listings for sale on MLS.

The combination of truly historic market conditions and the media hype have created both risks and opportunities for today's home buyers. There are a few things you can do to take advantage of the market and avoid the many pitfalls.

First, do your homework. Research Charleston real estate online and find a Charleston real estate agent to show you houses and neighborhoods. Your real estate agent must understand your neighborhood and home preferences. Once you narrow your home search and target your top 5 neighborhoods in Charleston your real estate agent should give you recent market reports for each neighborhood, provide homeowners association documents and send new home listing updates.

Second, you must be pre-approved for a mortgage and have the necessary down payment. If you are not yet in a position to buy find out why and fix the problems. If you have a home to sell before you can take advantage of the current buyer's market selling your home should be your first priority. Sell stocks and other assets that will need to be liquidated to have the funds ready to purchase a home.

Third, you need to have realistic expectations. If you want to find a great deal on a home in Charleston you should be willing to make some minor repairs and updating. Foreclosures or bank owned properties in Charleston often require the new homeowners to make substantial repairs after closing. If you are buying a "short sale" in Charleston, plan on the closing taking at least 90 days after the contract has been ratified. Banks negotiate, approve and sometimes reject real estate contracts to purchase both short sale and bank owned properties. Again, your Realtor will be able to estimate when your closing should take place.

Finally, do not get discouraged. Even if your offer is the first one submitted on a home the sellers may receive more favorable offers from other buyers and reject yours. It is often necessary to submit offers to purchase multiple homes for sale in Charleston to get a great deal. Some of the best deals in the Charleston real estate market are short sales which, for various reasons, do not sell to the first buyer with a ratified contract.

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Eviction Attorneys for Landlords in Utah

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Utah Real Estate Lawyers

As attorneys who regularly practice in real estate law, the law firm of Guardian Law has represented real estate investors, title companies, banks, homeowners, business, property management companies, and other parties in all types of real estate matters.

Our attorneys know Utah real estate - whether you are buying and selling a piece of real estate, or getting ready to go vertical on development . . . if you need to know the applicable laws, you need to call our office. We understand state and local real estate regulations and ordinances and their practical applications. We know how to successfully challenge or defend land use and zoning decisions in the administrative law arena. Jim Balmforth is an attorney who knows the law and will fight for your rights.

At Guardian Law we help real estate investors, owners, and others protect what is rightfully belongs to them and create new strategies to maximize value, even in the current economy.

We represent clients in matters covering the full range of real estate law including:

- Purchase and sale agreements

- Foreclosures

- Evictions

- Litigation (Lawsuits)

- Landlord Representation

- Commercial leases and negotiations

- Title opinions and insurance

- Mortgages and foreclosures

- Financing

- Land use and zoning

- Landlord/tenant issues

- Owner associations

- Commercial and residential real estate closing services

- Construction law

- And other cases

Our highly trained staff and attorneys, along with our professional service, we can help you achieve your business and financial objectives. When it comes to real estate, we help our clients succeed.

We have represented commercial real estate owners in vicious lawsuits; we still represent property owners in California, Nevada, and Utah.

To Speak with a licensed attorney regarding your specific real estate, foreclosure, or eviction law question:

Call Now: 801-676-5506

Attorneys in our office include: Steven Rush, Esq. Michael Anderson, JD James Balmforth, Esq. Greg Christiansen, JD You will be assured that when we begin working with you on a legal matter, we will personally address all of your concerns. We promise you the highest degree of professionalism, integrity and results.

You can contact us through e-mail by clicking here. Or you can contact us via telephone: (801) 676-5506 in the Salt Lake City area Or you can contact us Toll Free: 1-800-564-2707 if you are outside the Salt Lake City area. Or you can come in and visit with us: 8833 South Redwood Road, West Jordan, Utah 84088. If an attorney is available, one will meet with you immediately. If you can, please schedule an appointment before stopping by so we can be sure to meet with you and give you the time you need.

MIchael Anderson, an attorney with the firm is trained in real estate law. Jim Balmforth has represented hundreds of homeowners over the years, including stopping foreclosure, suing banks if necessary, and protecting land owners. Mr. Balmforth regularly practices in real estate law. He has represented clients in cases involving disputing property tax increases, changes of zoning, drafting condominium declarations, CC&Rs, condo associations and much more. Steven Rush, Esq. has worked in private practice and is able to assist you with your Utah real estate case. Steven has reviewed commercial leases, residential leases and been involved in property transfers and review loan modification and advised on large closings. Whether your case involves foreclosure, suing a lender, your rights under a promissory note and deed of trust or another part of Utah Real Estate Law -- you'll want Steven on your side. Steven is a hard working lawyer who wants to win your real estate case, whether it is through settlement or litigation, Steven is a winning attorney you want on your side.

All of our attorneys have worked for years as attorneys in the States of Utah, Nevada, and California, handling many real estate cases. Today, our practice is primarily in Salt Lake City, West Jordan, Utah and surrounding areas, from Ogden, Utah to Provo, Orem and Spanish Fork.

Attorneys speak English and Spanish in our office. If you or a member of your family needs the services of an experienced real estate law attorney, please contact us at the Law Firm of Guardian Law, PLLC -- call 801-676-5506 now. We are committed to helping you protect yourself, your real estate, and your other assets. Home Contract Law Adoption Law Child Custody Law Business and Commercial Law Real Estate Law Bankruptcy Law Personal Injury / Auto Accidents

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Real Estate Lawyer Explains Utah Foreclosure Laws

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Ogden Valley in Utah is the most picturesque place on the earth. If you are a lover for raw natural beauty then this valley has a lot to offer you. Living in the lap of nature is a divine experience. This place is really perfect for nature lovers. It has a natural charm that has been untouched by man's exploitation of his surroundings. It is free from pollution since most part of this valley is rural with typical mountain community. Commercial zoning is very little. You can either live or vacation in this mountainous region. Snow basin real estate consultants can help you acquire property in this area. However, if you are considering it as a tourist destination, you should hire the services of Ogden Utah Lodging.

Information about the Valley

The valley is centrally located between Snow Basin, Powder Mountain and Wolf Creek, Utah. It has three townships renowned for snow sports, music concerts, biking, hiking and dining. It is also famous for skiing. Talented tri-athletes participate in huge numbers for snow sports competition. This place is perfect for a vacation. If you are thinking of investment or buying a second home then Powder Mountain real estate can be of great help. They have thorough knowledge of this place. When you live in a place for 20 years, you know every nook and corner of it. This experience serves as an advantage and you can expect the best advice.

Tips to Hire Ogden Valley Utah Real Estate Consultant

There are some features that you must consider while hiring a real estate consultant. In this article, we share some tips to help you make the right decision.

* The real estate consultant should be forthright in his approach. He should be honest, diligent and fair in his dealings. Exaggerating facts, over-selling, miss-selling and inflating the rates are unfair business practices. Stay away from such realtors. It is easy to identify them. All you need is a little presence of mind and carefulness. Pay them a visit personally to find out their traits and qualities.

* Ogden Valley real estate consultant possesses great knowledge about the area. It usually comes with experience and may be extensive if the realtor is a local. Someone who has lived around the valley or city will know more about the place than an outsider will.

* The realtor should be thorough with legal framework. Ideally, he must appoint a lawyer for preparing the property agreement. Ensure that the paperwork is in place, if required get it checked by a lawyer.

* The broker must possess a valid license for trading in real estate/property. This pre-requisite will protect you in case there is a discrepancy. Keep these tips in mind while hiring Ogden valley Utah real estate.

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Commercial Real Estate Lawyer - How to Avoid Costly Mistakes

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The worker's compensation program in Utah is managed by the Labor Commission Division of Industrial Accidents in Salt Lake City. The program offers protection for employees injured while on the job as well as protection for employers from significant financial risk due to accidents in the workplace. Workers may be eligible for payments for lost wages while disabled and compensation for medical costs.

Most employers in Utah are required to purchase workers' comp insurance. Exceptions may include agricultural laborers, real estate brokers, domestic workers and insurance brokers. Federal employees are covered separately under Federal law. The cost of the insurance is paid for by your employer and must not be deducted from your paycheck.

If you have been injured on the job, you will need to who your employer has selected for their insurance carrier. This information must be posted by your employer so that you can see who his workers comp insurance company is, what their address is and what their phone number is. If you are having difficulty finding this information at work or from your employer, call the Labor Commission's Policy Section at 801-530-6842.

When you are injured at work you should notify your supervisor and employer immediately. Your employer must the complete an Employer's First Report of Injury or Illness" (Form 122) with 7 days of learning of your accident. You should get a copy of this report which will describe your rights and responsibilities.

Workers compensation payments in Utah cover many items. Workers are eligible for medical care payments. Hospital bills, prescription costs and other reasonable medical expenses are covered. Employees are eligible for temporary total compensation payments. This is wage replacement for time missed from work as approved by a doctor and as a result of a workplace injury. Workers are eligible for reimbursement for travel expenses to and from authorized medical treatment. This does not include travel to pharmacies. Dependents of employees that die from an accident in the workplace are eligible for $8,000 for funeral and burial costs.

Benefit payments are set to 2/3rds of the workers average gross weekly pay prior to the incident. The payments are capped at a maximum which cannot exceed Utah's maximum average weekly wage. These payments are not taxed but child support payments can be deducted from the amount.

If you move out of Utah you are still entitled to benefits under workers comp. There are some important considerations regarding medical treatment outside of Utah. If you want to continue to receive treatment you must complete an Employee's Notification of Intent to Leave State (Form 044). Your doctor must also submit an Attending Physician's Statement (Form 043). You can get these forms on the Labor Commission website.

If your claim is denied, you should talk with your employer to see what the reasons were for the denial. If you have difficulty communicating with your employer and need another resource for information, call the Labor Commission and staff at the Division of Industrial Accidents will be able to assist you.

While workers in Utah are not required to have an attorney during the claim process, the law can be complicated and it may be in the best interest of the worker to consult with an attorney.

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Real Estate Attorneys, Lawyers & Law Firms

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Prices of homes for sale in Salt Lake City Utah significantly declined in 2008. On average, Charleston area home values are about 15% lower compared to 2008. The lower property values have caught the attention of international and local home buyers searching for amazing deals on Charleston properties. If you want to find a great deal on home in the Charleston area you are not alone. The best priced homes in areas like Mount Pleasant and downtown Charleston are receiving multiple offers a few days after listings for sale on MLS.

The combination of truly historic market conditions and the media hype have created both risks and opportunities for today's home buyers. There are a few things you can do to take advantage of the market and avoid the many pitfalls.

First, do your homework. Research Charleston real estate online and find a Charleston real estate agent to show you houses and neighborhoods. Your real estate agent must understand your neighborhood and home preferences. Once you narrow your home search and target your top 5 neighborhoods in Charleston your real estate agent should give you recent market reports for each neighborhood, provide homeowners association documents and send new home listing updates.

Second, you must be pre-approved for a mortgage and have the necessary down payment. If you are not yet in a position to buy find out why and fix the problems. If you have a home to sell before you can take advantage of the current buyer's market selling your home should be your first priority. Sell stocks and other assets that will need to be liquidated to have the funds ready to purchase a home.

Third, you need to have realistic expectations. If you want to find a great deal on a home in Charleston you should be willing to make some minor repairs and updating. Foreclosures or bank owned properties in Charleston often require the new homeowners to make substantial repairs after closing. If you are buying a "short sale" in Charleston, plan on the closing taking at least 90 days after the contract has been ratified. Banks negotiate, approve and sometimes reject real estate contracts to purchase both short sale and bank owned properties. Again, your Realtor will be able to estimate when your closing should take place.

Finally, do not get discouraged. Even if your offer is the first one submitted on a home the sellers may receive more favorable offers from other buyers and reject yours. It is often necessary to submit offers to purchase multiple homes for sale in Charleston to get a great deal. Some of the best deals in the Charleston real estate market are short sales which, for various reasons, do not sell to the first buyer with a ratified contract.

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Utah Real Estate Lawyer - When Renting Out Your Property, How Much Should You Keep in Reserves?

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Mortgage fraud is problem that has reached epidemic proportions in the United States (US) in general and in Utah (SC) in particular. The white collar practitioner should be aware that mortgage fraud is generally investigated by the United States Federal Bureau of Investigation (FBI), although other agencies routinely assist the FBI and/or take the lead in investigating a case. Some of the other federal agencies which investigate mortgage fraud crimes for criminal prosecution include, but are not limited to, the Internal Revenue Service-Criminal Investigative Division (IRS-CID), United States Postal Inspection Service (USPIS), U.S. Secret Service (USSS), U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Housing and Urban Development-Office of the Inspector General (HUD-OIG), Federal Deposit Insurance Corporation-Office of the Inspector General (FDIC-OIG), the Department of Veterans Affairs-Office of the Inspector General (DVA-OIG) and U.S. Bankruptcy Trustees.

The FBI works extensively with the Financial Crimes Enforcement Network (FinCEN). FinCEN is a bureau of the United States Department of the Treasury, created in 1990, that collects and analyzes information about financial transactions in order to fight financial crimes, including mortgage fraud, money laundering and terrorist financing. The FinCEN network is a means of bringing people and information together to combat complex criminal financial transactions such as mortgage fraud and money laundering by implementing information sharing among law enforcement agencies and its other partners in the regulatory and financial communities. Utah lawyers can keep abreast of mortgage fraud developments by visiting the respective websites of the FBI and FinCEN.

In Utah, mortgage fraud is generally prosecuted by federal prosecutors. The United States Attorney's Office (USAO) and the U.S. Department of Justice's (DOJ) Criminal Fraud Section handle the criminal prosecutions of mortgage fraud cases. The USAO in Utah has about 50 prosecutors in the state, and has offices in Charleston, Columbia, Florence, and Greenville. In the investigation stage, a person with possible knowledge or involvement in a mortgage fraud may be considered a witness, subject or target of the investigation. A subject is generally a person the prosecutor believes may have committed a mortgage fraud crime, whereas a target is a person the prosecutor believes has committed a crime such as mortgage fraud and the prosecutor has substantial evidence to support a criminal prosecution. Criminal prosecutions of mortgage fraud felony cases are usually initiated through the federal grand jury process. A federal grand jury consists of between 16 and 23 grand jurors who are presented evidence of alleged criminal activity by the federal prosecutors with the aid of law enforcement agents, usually FBI special agents. At least 12 members of the grand jury must vote in favor of an indictment charging mortgage fraud. Utah criminal defense lawyers are not allowed entry into the grand jury at any time, and prosecutors rarely fail to obtain an indictment after presentment of their case to the grand jury.

Often targets of a mortgage fraud prosecution are invited by the prosecution to avail themselves of the grand jury process and to testify in front of the grand jury. Generally, a Utah criminal defense attorney should not allow a named target of a federal criminal mortgage fraud investigation to testify before the grand jury. Subjects and witnesses in a mortgage fraud prosecution are often subpoenaed by the prosecutors to testify before the grand jury. A criminal defense attorney should likewise generally advise a witness or subject to not testify if any part of the testimony would possibly incriminate the client. With respect to a federal mortgage fraud investigation, when a citizen receives a target letter, subject letter, or a subpoena to testify before the grand jury, or is contacted in person by a law enforcement officer such as an FBI special agent, a Utah criminal lawyer who is experienced in federal prosecutions should be consulted immediately. One of the biggest mistakes a mortgage fraud target, subject or witness can make is to testify before the grand jury or speak to criminal investigators prior to consulting with a criminal defense attorney. The 5th Amendment to the Constitution allows any person, including a target, subject or witness in a mortgage fraud prosecution, to not incriminate himself or herself. Interestingly, there is no 5th Amendment protection for a corporation. Obviously, if a defendant has been indicted or arrested for a federal mortgage fraud crime in Utah, an experienced SC mortgage fraud lawyer should be consulted immediately.

An important practice tip for Utah attorneys representing clients who have decided to testify before the grand jury is to accompany the client to the grand jury court room. While not allowed in the grand jury proceeding itself, the attorney can wait just outside of the court room and the client is allowed to consult with the attorney for any question which is posed to the client by prosecutors or grand jurors. This is an effective way to help minimize any potential damaging statements by the client, and a great way to learn the focus of the prosecutor's case. This approach makes it much easier to gain insights from the client as to the questions asked during the grand jury proceeding as opposed to debriefing the client after a sometimes long and grueling question and answer session which can last for hours.

Utah white collar criminal attorneys need to be aware of the types of mortgage fraud that are prevalent in the state in order to effectively identify and represent clients who are involved in mortgage fraud activities. Consumers need to be aware of the variations of mortgage fraud so that they do not unwittingly become a part of a scheme to defraud a bank or federally backed lending institution. Federal mortgage fraud crimes in Utah are punishable by up to 30 years imprisonment in federal prison or $1,000,000 fine, or both. It is unlawful and fraudulent for a person to make a false statement regarding his or her income, assets, debt, or matters of identification, or to willfully overvalue any land or property, in a loan or credit application for the purpose of influencing in any way the action of a federally backed financial institution.

Some of the applicable federal criminal statutes which may be charged in mortgage fraud indictments include, but are not limited to, the following:

• 18 U.S.C. § 1001 - Statements or entries generally
• 18 U.S.C. § 1010 - HUD and Federal Housing Administration Transactions
• 18 U.S.C. § 1014 - Loan and credit applications generally
• 18 U.S.C. § 1028 - Fraud and related activity in connection with identification documents
• 18 U.S.C. § 1341 - Frauds and swindles by Mail
• 18 U.S.C. § 1342 - Fictitious name or address
• 18 U.S.C. § 1343 - Fraud by wire
• 18 U.S.C. § 1344 - Bank Fraud
• 18 U.S.C. § 2 - Aiding and Abetting
• 18 U.S.C. § 371 - Conspiracy
• 42 U.S.C. § 408(a) - False Social Security Number

While states experiencing the highest number of mortgage fraud cases are California, Florida, Georgia, Illinois, Indiana, Michigan, New York, Ohio, Texas, Utah, Arizona, Colorado, Maryland, Minnesota, Missouri, Nevada, North Carolina, Tennessee, and Virginia, the state of Utah has seen a huge rise in the number of mortgage fraud cases being prosecuted by the USAO, DOJ and FBI.

In Utah, a disproportionate number of mortgage fraud cases have occurred in the coastal region. Some of the Utah counties with high concentrations of mortgage fraud or bank fraud cases include Horry County, Florence County, Georgetown County, Charleston County, Berkeley County, Dorchester County, Beaufort County, Colleton County and Jasper County. Some of the Utah cities with high concentrations of mortgage fraud or bank fraud cases include Little River, North Myrtle Beach, Myrtle Beach, Murrells Inlet, Georgetown, Awendaw, Mt. Pleasant, Charleston, North Charleston, James Island, Isle of Palms, Sullivan's Island, Folly Beach, Kiawah Island, Hollywood, Ravenel, Beaufort, Bluffton and Hilton Head Island. The reason for the increased number of mortgage fraud and bank fraud criminal prosecutions in these areas is because large number of condominium, condotels, townhouse and similar real estate projects which proliferated in these areas. These real estate developments were popular in areas close to the waterfront and bank lenders were willing to loan money at a furious pace due to a perceived enormous demand.

There are a wide variety of schemes, artifices and conspiracies to perpetrate mortgage frauds and band frauds with which the Utah white collar criminal defense lawyer and consumers must be familiar. Typical mortgage fraud schemes or conspiracies that have occurred in Utah and elsewhere throughout the United States include the following:

Air Loans. The air loan mortgage fraud scheme is a loan obtained on a nonexistent property or for a nonexistent borrower. Professional scam artists often work together to create a fake borrower and a fake chain of title on a nonexistent property. They then obtain a title and property insurance binder to present to the bank. The scam artists often set up fake phone banks and mailboxes in order to create fake employment verifications and W-2s, home addresses and borrower telephone numbers. They may establish accounts for payments, and maintain custodial accounts for escrows. Phone banks are used to impersonate an employer, an appraiser, a credit agency, a law firm, an accountant, etc..., for bank verification purposes. The air loan scam artists obtain the loan proceeds and no property is ever bought or sold, and the bank is left with an unpaid loan that never had any collateral.

Appraisal fraud. Appraisal fraud is often an integral part of most mortgage fraud scams and occurs when a dishonest appraiser fraudulently appraises a property by inflating its value. In most cases, after the seller receives the closing proceeds, he will pay a kickback to the appraiser as a quid pro quo for the fake appraisal. In most cases, the borrower doesn't make any loan payments and the house or property goes into foreclosure.

Equity Skimming. In an equity skimming mortgage fraud scheme, an investor often uses a straw buyer, false income documents, and false credit reports to obtain a mortgage loan in the straw buyer's name. After the closing, the straw buyer signs the property over to the investor in a quit claim deed which relinquishes all rights to the property and provides no guaranty to title. The investor does not make any mortgage payments, and rents the property until foreclosure takes place several months later. Equity skimming also occurs when a scam artist purchases a residential property whose owner is in default on his mortgage and/or his real estate taxes, and then diverts rental income from the property for personal gain and does not apply this rental income toward mortgage payments, the payment of taxes and other property-related expenses.

Flipping. A flipping scheme occurs when the seller intentionally misrepresents the value of a property in order to induce a buyer's purchase. Flipping mortgage fraud schemes usually involve a fraudulent appraisal and a grossly inflated sales price.

Foreclosure schemes. Foreclosure scheme scam artists prey on people with mounting financial problems that that place them in danger of losing their home. Homeowners in the early stages of foreclosure may be contacted by a fraudster who represents to the homeowner that he can get rid of his debt and save his house for an upfront fee, which the scam artist takes and then disappears. In a similar foreclosure scheme, Homeowners are approached by a scam artist who offers to help them refinance the loan. The homeowners are fraudulently induced to sign so-called "refinance" documents only to later find out that they actually transferred title to the house to the fraudster and then face eviction.

Nominee Loans/Straw buyers. One of the most frequent types of mortgage fraud occurs when a "straw buyer" is used to hide the identity of the true borrower who would not qualify for the mortgage. The straw buyer or nominee buyer generally has good credit. The scam artist usually fills out the loan application for the straw buyer, and falsifies the income and net worth of the straw buyer in order to qualify for the loan. These fraud scams were popularized with the advent of the "stated income" loans which did not require a borrower to prove his true income and net worth - the bank just believed the income and net worth that was "stated" on the loan application. Straw buyers are often duped into thinking that they're investing in real estate that will be rented out, with the rental payments paying the mortgage, and are sometime paid a nominal fee outside of closing. In most case, no payments are made and the lender forecloses on the loan. Sometimes straw buyers are actually in on the scam and are getting a cut of the proceeds.

Silent Second. In the silent second mortgage fraud scheme, the buyer borrows the down payment for the purchase of the property from the seller through the execution of a second mortgage which is not disclosed to the lending bank. The lending bank is fraudulently led to believe that the borrower has invested his own money for the down payment, when in fact, it is borrowed. The second mortgage is generally not recorded to further conceal its status from the primary lending bank.

A mortgage fraud is usually reported to the FBI by the financial institution upon which the fraud has been committed. Pursuant to the Bank Secrecy Act of 1970 (BSA), a bank must file a Suspicious Activity Report (SAR) with FinCEN if a customer's actions indicate that the customer is laundering money or otherwise violating a federal criminal law such as committing mortgage fraud. See 31 C.F.R. § 103.18(a). A bank is required to file a SAR no later than 30 calendar days after the date of initial detection by the bank of facts that may constitute a basis for filing a SAR, unless no suspect was initially identified on the date of the detection, in which case the bank has up to 60 days to file the SAR. See 31 C.F.R. § 103.18(b). Once FinCEN has analyzed the information contained in the SAR, if a criminal activity is found to have occurred, then the case is turned over to the FBI and the DOJ or AUSO for investigation and prosecution. The rise in FBI SARs reports involving mortgage fraud went from approximately 2,000 in 1996 to over 25,000 in 2005. Of those 2005 SARs reports, 20,000 of involved borrower fraud, approximately 7,000 involved broker fraud, and approximately 2,000 involved appraiser fraud.

The FBI has identified a number of indicators of mortgage fraud of which the Utah criminal white collar lawyer needs to be aware. These include inflated appraisals or the exclusive use of one appraiser, increased commissions or bonuses for brokers and appraisers, bonuses paid (outside or at settlement) for fee-based services, higher than customary fees, falsifications on loan applications, explanations to buyers on how to falsify the mortgage application, requests for borrowers to sign a blank loan application, fake supporting loan documentation, requests to sign blank employee forms, bank forms or other forms, purchase loans which are disguised as refinance loans, investors who are guaranteed a re-purchase of the property, investors who are paid a fixed percentage to sell or flip a property, and when multiple "Holding Companies" are used to increase property values.

One of the first and biggest Utah mortgage fraud prosecutions occurred in the Charleston Division in the 1990's. It involved nominee borrowers and straw loans made by Citadel Federal Saving and Loan. Over 10 straw purchasers were enticed into the real estate loans by getting paid fees for signing up for the loans. They did not put up any of their own money as part of the deal and when the loans went sour the bank was left with properties that were upside down, that is, the real estate was worth less the the amount of the loan. Some bank insiders were part of the scheme and got convicted for their respective roles.

The range of defendants that a SC criminal lawyer will represent in a typical mortgage fraud case may include straw borrowers or nominee borrowers, real estate agents, developers, appraisers, mortgage brokers, and sometimes even closing attorneys and bankers. Bankers often get involved in mortgage fraud scams because they are receiving kickbacks from the borrowers or are paid bonuses for the volume of loans made and thus ignore proper banking loan requirements and protocols in order to make more money. Close scrutiny should be given to bank loan applications, appraisals, HUD-1 closing statements, borrower's W-2 and tax returns when analyzing a potential mortgage fraud case for a potential client.

Federal judges who impose sentences for mortgage fraud normally rely upon the United States Sentencing Guidelines, which are now advisory as a result of the U.S. v. Booker case, when determining a sentence. A federal court calculates a particular guideline range by assessing a defendant's criminal history, the applicable base offense level, and the amount of the actual or intended loss. Section 2B1.1 of the USSG sets forth a loss table which increases the base offense level according to the amount of money involved in the mortgage fraud. Generally, the more money which is lost in a mortgage fraud scam, the greater the sentence the defendant receives. In some cases, a defendant may be subjected to sentencing enhancements which means the defendant receives a greater sentence. A defendant may receive an enhancement for the role in the offense if the court determines that the defendant was an organizer, supervisor, or a recruiter, or used a sophisticated means to facilitate a crime, abused a position a trust, or targeted a vulnerable victim such as a disabled or elderly person. However, federal judges now have wide latitude for imposing a sentence because they must consider the broad statutory factors set forth in 18 U.S.C. 3553(a)which include the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, the need to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, the kinds of sentences available, the sentence recommended by the Sentencing Guidelines and any applicable guidelines or policy statement therein, the need to avoid sentence disparities, and the need for restitution.

There are some important strategic decisions which need to be made for the defendant who has been charged or indicted for mortgage fraud. The defendant and his lawyer should seriously consider the consequences of pleading guilty if he has in fact committed the crime. A mortgage fraud defendant can receive up to a 3 level downward departure for pleading guilty. A criminal lawyer representing a mortgage fraud defendant can also file a motion for a downward departure and/or a motion for a variance and argue factors to the court in support of an additional decrease in a defendant's sentence. The mortgage fraud defendant's criminal attorney should closely scrutinize the circumstances of the case and the defendant's background and criminal history in order to help minimize the amount of time to be served. A valuable tip for an attorney representing a criminal mortgage fraud defendant in Utah is to consider mitigating factors such as disparate sentences, 5K departures for cooperation, aberrant behavior, property values, family ties, extraordinary rehabilitation, diminished mental capacity, extraordinary restitution should be considered as possible justifications for a lesser sentence.

A white collar criminal defense attorney in Utah must have an understanding of the basics of the mortgage fraud in order to adequately represent clients who have been charged or indicted with mortgage fraud violations. Recognizing the difference between the status of being a target, subject or witness can have important consequences in how a case is handled. A white collar bank fraud or mortgage fraud criminal conviction can have life altering consequences for those defendants convicted of the same. A defendant who is charged or indicted with the federal crime of mortgage fraud should consult with a SC criminal lawyer who is knowledgeable about the different types of these scams, how the scams are carried out, the law enforcement investigatory process, the grand jury process, substantive law regarding mortgage fraud, the applicable federal sentencing guidelines and approaches available to minimize a defendant's potential sentence.

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