#‘will fight either for or against the commission depending on which option will benefit his family’

[blupengu]

Man, I’ve been reading through the Commission Handbook, and while overall I think it’s just kinda neat, the few notes we get from Founder Five kind of break my heart. Some quotes from the Founder’s notes for those interested:

(Referring to a commission agent who keeps trying and failing to save her son using the briefcase) “She reminds me of how badly I want this crazy experiment to work. I want to go back desperately.”

“… Reading your thoughts on the Commission and our cutbacks has made me feel empty inside.”

“… I’m forced to consider if all of this energy, pain, and suffering is worth it. I’d like to think so, but currently the prognosis doesn’t look great. But you have my promise. As long as I breathe, I will keep fighting.”

(Referring to Five’s profile) “The way you write about this boy… or man, I’m not quite sure. It reminds me of someone I’ve lost… I think about the first time Five traveled through time. There he was, just a child, blessed with a power that was spellbinding. But when he used it, he was lost. Stranded in an apocalypse nowhere near his family.”

“If I’m being honest, I don’t remember my own name, it’s been too long. Now I’m the Founder, and that’s enough. Everything else has fallen by the wayside.”

“The Commission was a failure. Not for lack of trying, might I add. Golly, we did try, didn’t we? … In truth, we never stood a chance… Thank you for trying to save the world with me.”

Like damn, now I understand old man Founder Five we see in S3 who’s given up 😭

The person who wrote this book would’ve done a much better job at writing S4, this characterization of Five is much more accurate to the one we know and love lmao

[melissawalker01]

Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

Foreclosure Lawyer Free Consultation

When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/recovery-of-attorneys-fees-in-foreclosures/ from Divorce Lawyer Nelson Farms Utah https://divorcelawyernelsonfarmsutah.tumblr.com/post/619328644384522240

[asafeatherwould]

Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

Foreclosure Lawyer Free Consultation

When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Best Salt Lake City Utah Lawyer

Source: https://www.ascentlawfirm.com/recovery-of-attorneys-fees-in-foreclosures/

[michaeljames1221]

Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

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When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

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Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

Foreclosure Lawyer Free Consultation

When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Source: https://www.ascentlawfirm.com/recovery-of-attorneys-fees-in-foreclosures/

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Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

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When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

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Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

Foreclosure Lawyer Free Consultation

When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Source: https://www.ascentlawfirm.com/recovery-of-attorneys-fees-in-foreclosures/

[gonnagoandrunwiththehorses]

Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

Foreclosure Lawyer Free Consultation

When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Source: https://www.ascentlawfirm.com/recovery-of-attorneys-fees-in-foreclosures/

[coming-from-hell]

Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

Foreclosure Lawyer Free Consultation

When you need an attorney to help with real estate law or a foreclosure in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Best Salt Lake City Utah Lawyer

Source: https://www.ascentlawfirm.com/recovery-of-attorneys-fees-in-foreclosures/

[divorcelawyergunnisonutah]

Recovery Of Attorneys Fees In Foreclosures

Mortgage contracts generally allow a servicer the company that handles the loan account to charge late fees, inspection fees, foreclosure costs, and other default-related fees to your account under certain circumstances, like when you are late on a payment or are in foreclosure. If the servicer charges fee and costs in excessive or incorrect amounts, this will unfairly increase the total balance you owe on your loan. If this happens to you in foreclosure, you can challenge those fees and costs. If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan. The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period end, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note.

Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Most prime, conventional loan contracts allow the loan servicer to assess a late fee equal to 5% of the payment due. However, state law may limit the fee to, say, only 4%. If the loan documents and state law allow for different late fees, the servicer can only charge the maximum allowed by state law. In this situation, the late fee would be limited to 4% pursuant to state law. It is up to the borrower to make sure the servicer only charged 4% to the account, not 5%. The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.) If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account.

Default-related fees typically include: • Property inspection fees • Property preservation costs • Foreclosure costs/fees, and • Miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. The loan servicer may also assess costs for preserving the value of the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. (Learn more about deficiencies after a foreclosure.) If you want to challenge the fees being charged in a foreclosure action, you should speak to a qualified attorney who can advise you what defenses are available for your particular situation. Loan servicing records can be difficult to interpret and reconcile, so be sure the attorney is familiar with how to read loan servicing communication logs and payment histories.

A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney’s fees and expenses under Real Property Law. Whenever a covenant contained in a mortgage on residential real property shall provide that in any action or proceeding to foreclose the mortgage that the mortgagee may recover attorneys’ fees and/or expenses incurred as the result of the failure of the mortgagor to perform any covenant or agreement contained in such mortgage, or that amounts paid by the mortgagee therefore shall be paid by the mortgagor as additional payment, there shall be implied in such mortgage a covenant by the mortgagee to pay to the mortgagor the reasonable attorneys’ fees and/or expenses incurred by the mortgagor as the result of the failure of the mortgagee to perform any covenant or agreement on its part to be performed under the mortgage or in the successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the contract, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the mortgagee or by way of counterclaim in any action or proceeding commenced by the mortgagee against the mortgagor. Any waiver of this section shall be void as against public policy. For the purposes of this section, “residential real property” means real property improved by a one- to four-family residence, a condominium that is occupied by the mortgagor or a cooperative unit that is occupied by the mortgagor. In an appropriate case, where the mortgage provides for the recovery of the mortgagee’s attorneys’ fees and expenses, the above statute applies, and the subject real property constitutes residential real property (one family) that is the mortgagors’ home, the court may award the defendant legal fees and costs. One of the considerations in deciding whether or not you should hire a lawyer to help you fight your foreclosure is the cost. It’s important to understand how legal fees work to make sure that you don’t end up paying more than you can afford. Most foreclosure defense attorneys structure their fee agreements with homeowners in one of three ways: • by charging the homeowner an hourly rate • collecting a flat fee from the homeowner, or • charging a monthly rate. Hourly Rate Some foreclosure defense attorneys charge an hourly rate for their services. The rate can range from around $100 per hour to several hundred dollars per hour. With this type of fee arrangement, the lawyer generally collects an initial retainer—an advance payment to the attorney before he or she starts to work on your case of several thousand dollars. The retainer amount and hourly rate varies widely, depending on the attorney’s experience and the customary rates in the area. Pros and cons. The benefit to this type of fee arrangement is you’ll only pay the attorney for the amount of time he or she actually works on your case. The downside is that while the attorney will probably be able to give you a likely range of what you’ll pay in total, you won’t get an exact price as far as what the total cost of the foreclosure defense will be and hourly fees can add up quickly. Flat Fee Some attorneys charge a flat fee to represent homeowners in a foreclosure. Generally speaking, the fee can range from $1,500 to $4,000 depending on the complexity of the case. Pros and cons. The benefit to paying a flat fee is that you know ahead of time exactly what the total cost of your foreclosure defense will be. Whether it takes five months or two years to dismiss the foreclosure or for the lender to complete the process you know that this is all you’ll pay. The downside is that not all foreclosure attorneys offer this option and you’ll have to pay the fee upfront, which is difficult for many distressed homeowners. Monthly Rate Some foreclosure attorneys charge an upfront retainer ranging from several hundred to several thousand dollars, and then a monthly fee (like $500) for each month that the foreclosure is pending. In addition, attorneys have been known to charge an extra fee on top of this called a contingent fee—if the case is dismissed as a result of the firm’s efforts. Pros and Cons. The benefit to paying a monthly fee is that you know exactly what your attorney will cost each month without variation. Also, the attorney has an incentive to keep you in the property for as long as possible (if that’s your goal). The downside is that you must pay this amount each month, even if little activity takes place in your case during that time. Late Fee Assessments If your mortgage payment is late, your servicer may charge you a late fee. But servicers sometimes incorrectly assess late fees—either inappropriately or in the wrong amount which can add hundreds of dollars on to the amount you owe on the mortgage loan.

Here are some ways that can happen: The servicer assesses a late charge during the grace period. Most mortgage contracts include a “grace period” of around ten or fifteen days. If you make your payment late, but during the grace period, there shouldn’t be a late fee. The servicer delays posting your payment to your account. If the loan servicer delays posting your payment to your account until after the grace period ends, it can also result in an improper late fee. The servicer assesses an incorrect late charge amount. Late fees can only be assessed in the amount specifically authorized by the loan contract. The late charge amount is usually found in the promissory note. Even then, state law may limit the amount that can be charged. If the state limit is lower than what the contract allows, it will generally override the loan contract. Limits on late fees. Late fees are often limited by: • the dollar amount that may be charged (typically a maximum of $10 or $15) • the percentage of the payment that may be charged (generally 4% or 5%) • the date on which the late charge can be assessed, and/or • the payment amount on which the late charge is calculated. (For example, the late charge may be based on a percentage of the entire amount of the payment due, including principal, interest, taxes, and escrow amounts or it may be calculated based on a percentage of just the principal and interest due.) The servicer illegally “pyramids” late fees. In some cases, servicers charge borrowers late fees on full payments that were made on time because the borrower didn’t include a payment for a previously unpaid late charge. “Pyramiding” occurs when the loan servicer takes the assessed late fees from the regular payment and leaves part of the scheduled payment overdue, which results in the assessment of another late charge. When the servicer does this, more and more late fees accumulate. Federal regulations, state law, and mortgage contracts usually prohibit this practice. According to the Federal Trade Commission, pyramiding of late fees is unfair to consumers. Regulation Z, which implements the Truth in Lending Act (TILA), also prohibits the pyramiding of late fees for mortgages covered by TILA. The servicer assesses post-acceleration late charges. In most cases, the servicer is prohibited from assessing late charges after the loan has been accelerated. (When a loan is “accelerated,” you have to immediately pay the entire balance of the loan, not just the past due amounts. This sets the stage for the foreclosure procedure to begin.)

Default-Related Fees If you default on your mortgage payments (that is, you fail to make the mortgage payments), your loan servicer may assess particular charges to your account. Default-related fees typically include: • property inspection fees • property preservation costs • foreclosure costs/fees, and • miscellaneous corporate advances. Some states limit the amount of fees that can be charged pursuant to a default. For instance, charges may be limited to reasonable expenses, including costs and fees. Property Inspection Fees Most mortgage contracts allow the servicer to take necessary steps to protect the lender’s rights in the property, including conducting property inspections to determine the physical condition or occupancy status of the mortgaged property. Inspections are generally ordered automatically once the loan goes into default. The charges for the inspections are then added to the total mortgage debt. The amount charged for each inspection, which is generally drive-by in nature, is typically minimal ($10 or $15). However, inspections might be performed monthly or more often, so the charges can add up quickly. Some courts have found that repeated inspections when the servicer is in contact with the homeowner, knows the property is occupied, and has no reason to be concerned about the condition of the property, are not necessary. Property Preservation Costs The loan servicer may also assess costs for preserving the value of the property. For example, property preservation costs may include fees advanced to: • winterize the home • replace locks • repair windows • restore utilities, and/or • landscape the property. Most courts have held that such fees must be reasonable in order to be collectable from the borrower. Foreclosure Costs and Fees Generally, foreclosure costs must be reasonable and actually incurred before they are recoverable against the borrower. Acceptable foreclosure costs include, among others: • auction advertisements • sheriff’s costs • filing fees • service of process, and • certified mailings. Most mortgages require the borrower to pay the lender’s foreclosure attorney’s fees as well. To be collectable, attorney’s fees must be reasonable and actually incurred. Additionally, some states limit attorneys’ fees in foreclosures. Miscellaneous Corporate Advances Corporate advances are expenses paid by the servicer to be recovered from the borrower. Corporate advances may include bankruptcy fees or force placed insurance costs, for example. If undefined corporate advances appear on your account, you should contact your loan servicer for an explanation to ensure they are appropriate for inclusion in the total amount owed. Challenging Fees in Foreclosure Borrowers may raise any number of defenses regarding improper late fees or other incorrect default-related fees. While some may constitute a full defense to the foreclosure, others will reduce the amount owed on the debt, thereby potentially decreasing any deficiency owed to the lender. A few of the defenses that could potentially be raised are: • breach of contract • violation of state usury laws • unfair and deceptive acts and practices • unjust enrichment • negligent servicing • breach of fiduciary duty, and • breach of good faith and fair dealing.

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[thisdaynews]

Why breaking up Facebook won't be easy

New Post has been published on https://thebiafrastar.com/why-breaking-up-facebook-wont-be-easy/

Why breaking up Facebook won't be easy

Critics argue there’s a monopoly case to be made against Facebook because it grabs control of users’ data. | Fabrice Coffrini/AFP/Getty Images

technology

The social media giant may be big, wealthy and powerful. But is it a monopoly?

The idea of breaking up Facebook is gaining attention like never before — from the campaigns of presidential candidates like Elizabeth Warren and Bernie Sanders to the stunning proposal from Chris Hughes, one of the social network’s cofounders, to split the company apart to curb its “monopoly” power.

But busting up the nation’s tech giants would be much harder than making a campaign pledge. Corporate breakups are a huge, and rare, undertaking for the government, and a social media company like Facebook presents unique challenges that didn’t exist with past antitrust successes like the dismembering of AT&T in the 1980s.

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Here are some of the obstacles standing in the way of turning this rallying cry into reality:

1) Proving Facebook is a monopoly

The social network is certainly big and powerful — with more than 2 billion users worldwide, a huge share of online advertising revenue and tentacles that include onetime rivals like WhatsApp and Instagram.

But it’s debatable whether Facebook meets the legal definition of a monopoly, a company with lasting, unchecked power to raise prices or exclude competitors. The answer could depend on how antitrust enforcers define Facebook’s market — a question that has become less clear as the company has expanded.

Facebook argues it has fierce competition on all sides of its business. It’s a giant of digital advertising, but is second to Google in global market share and faces competition from companies like Amazon, according to research firm eMarketer. It also competes with Apple and Snapchat as a messaging platform.

“Facebook is in an amorphous, fast-changing market,” said Adam Thierer, a senior research fellow at the Mercatus Center at George Mason University. That makes the monopoly question “convoluted and hard for the government to prove” compared with previous antitrust cases that centered on industries like oil or railroads, he said.

Facebook critics argue there’s a monopoly case to be made against Facebook, because it dominates users’ online attention and grabs control of their data. But Facebook is not the sole power in the social media market. And that makes it different from AT&T and its Bell System, which had a nationwide stranglehold on local telephone operators, long-distance service and telephone equipment before its breakup in the 1980s.

A decade later, the Justice Department struggled to prove that another big tech company — Microsoft — held a monopoly on personal computing through its control of Windows and Internet Explorer.

“AT&T was able to so thoroughly control the sector that nothing happened that it didn’t want to see happen in terms of the introduction of new services,” said Phil Verveer, who worked on the AT&T case while at the Justice Department. “That was not the case with Microsoft, and it might not be the case with Facebook either.”

2) Deciding what to break up

In past marquee antitrust cases, the road map for a breakup was relatively straightforward. The Standard Oil case, decided by the Supreme Court in 1911, saw that company split up largely along geographic lines. AT&T was a heavily regulated company with separate businesses for long-distance and local telephone lines, making the lines of division clear.

Facebook doesn’t have such easily identifiable boundaries. Social networking works only through reaching as many people as possible and connecting them with others, making the idea of separating parts of the business much more complex.

“In the internet age, those kinds of options just don’t exist,” said Andrew Schwartzman, an attorney with Georgetown’s Institute for Public Representation.

Critics like Warren and Hughes have talked up the idea of cleaving off Instagram and WhatsApp, which Facebook acquired in 2012 and 2014, respectively. Even though they appear to consumers as distinct apps, however, they are already deeply integrated with Facebook. Instagram, for example, uses the same advertising technology as Facebook.

What’s more, CEO Mark Zuckerberg recently announced the two platforms will be enmeshed even more tightly with the core social network, an effort he said will make the services easier to use and more secure. It could also make them even harder for regulators to unwind.

“There may well be sound business reasons to do it,” Schwartzman said of the changes Zuckerberg announced, “but certainly one benefit of that would be it would make it harder to break them up.”

3) Antitrust cases take time and money

The Justice Department’s antitrust lawsuit against AT&T, and its unsuccessful battle to break up Microsoft, were yearslong affairs that started under one presidential administration and ended in another. That means whoever wins the White House in 2020 could well be out of office before a potential case against Facebook is decided or settled.

The AT&T case began in 1974 and ended in 1982, after which the government spent another two years implementing an agreement that split up the company into eight smaller entities.

The government spent another decade in the 1990s and early 2000s waging an antitrust war against Microsoft for anti-competitive behavior, arguing that its operating system and internet browser should be separated. But by the time the court approved a settlement in 2002, requiring changes to the company’s business practices but leaving Microsoft intact, the penalties did not have much impact, Verveer said.

“Technology will change, business models will change, consumer preferences will change,” he said. “You could end up at the end of a long process with something that frankly doesn’t make very much difference because the world has moved on.”

That’s one reason some Facebook critics, including former DOJ antitrust official Gene Kimmelman, argue that imposing restrictions on how social media companies use data could be a more effective strategy than breaking them up.

A lengthy lawsuit against Facebook would also consume a lot of resources at the DOJ, which might have to hire outside attorneys and other experts as it did in the Microsoft case. The expense could even require additional appropriations from Congress, Schwartzman said.

“It is a really daunting enterprise,” Schwartzman said. “The likelihood the Justice Department or Federal Trade Commission would be able to undertake such an activity is remote.”

4) The legal bar has gotten higher

Courts have become more conservative when it comes to antitrust doctrine since the 1970s, experts say, requiring the government to prove that anti-competitive behavior has a real economic impact on businesses or consumers. That’s widely considered a tougher standard.

Because of judicial skepticism about the “breakup solution,” antitrust enforcers in the Obama administration tended to pursue so-called behavioral remedies for companies getting bigger through mergers, said Kimmelman, who now heads consumer advocacy group Public Knowledge. Those allow a merger to proceed with certain restrictions, without attempting to spin off parts of a company.

He pointed to the Microsoft antitrust case. In that proceeding, an appeals court overturned a judge’s original decision to separate the operating system and browser, saying the Justice Department had not shown enough evidence to justify the move.

If the government tries to force Facebook to give up WhatsApp and Instagram, it would have to argue the market would be more competitive if those acquisitions had never taken place. But it’s tricky to convince a court based on speculative outcomes about the two services, the Mercatus Center’s Thierer said.

WhatsApp and Instagram “might have failed entirely. They might have succeeded on their own. We don’t have any idea how these markets would have shaken out,” he said. “The evidentiary burden on these things is very difficult because we don’t know how history would have played out differently.”

5) Limits on the president’s power

No president can simply decree that a company be dismantled. The antitrust review process is meant to be a regulatory and legal one.

That issue has already haunted President Donald Trump’s administration, which had to rebut accusations that his distaste for CNN motivated the Justice Department’s unsuccessful attempt to prevent Time Warner from merging with AT&T. Trump had promised to block the deal on the campaign trail, calling it “too much concentration of power in the hands of too few,” and he frequently lambasted Time Warner-owned CNN as a font of “fake news.”

The government ended up losing its court fight, allowing the deal to go through. But the accusations of White House interference in the antitrust arena offered a preview of questions the next president may face in tackling big tech companies.

Warren has made clear that in her administration, regulators would handle such issues. But she pledged to appoint people in those roles “who are committed to using existing tools to unwind anti-competitive mergers,” including Facebook’s purchases of Instagram and WhatsApp.

“Today’s big tech companies have too much power — too much power over our economy, our society, and our democracy,” Warren wrote in a Medium post, which also called for breaking apart Google and Amazon.

One of her 2020 Democratic rivals, New Jersey Sen. Cory Booker, warned she is treading on questionable — even Trumpian — territory.

“I don’t think that a president should be running around pointing at companies and saying breakingthem up without any kind of process here,” Booker said.

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[newsnigeria]

Check out New Post published on Ọmọ Oòduà

New Post has been published on http://ooduarere.com/news-from-nigeria/world-news/new-master-of-ukraine/

Meet The New Puppet Master of Ukraine

By Rostislav Ishchenko Translated by Ollie Richardson and Angelina Siard cross posted with https://www.stalkerzone.org/the-new-master-of-ukraine/ Source: https://ukraina.ru/exclusive/20190403/1023202774.html

Ukraine received a new master, irrespective of who will take the presidency.

The master is named Igor Valeryevich Kolomoisky. It is he who detailed and implemented the scenario of the first round of voting in such a way that Poroshenko – who progressed to the second round, Tymoshenko – who didn’t progress, Boyko – who took fourth place, and also the oligarchical groups that place a stake on each of them, found themselves being completely dependent on Kolomoisky.

We don’t know how he managed to establish control over territorial election commissions, which had to provide the counting of votes for the benefit of Yuliya Tymoshenko. But we can assume that Yuliya Tymoshenko and her headquarters gave him this control within the framework of an agreement on a joint fight against Poroshenko. Yuliya Tymoshenko’s mentality and her environment did not allow either of them to assume that Kolomoisky will agree with the president (even if it is temporary). After all, it is precisely Poroshenko who took away “Ukrneft” and “Privatbank“ from Kolomoisky, drove him out of the country, and seriously nibbled on his business assets. Therefore, they did not see any problem in tasking Kolomoisky with working with commissions. After all, Zelensky (who was propelled forward by Kolomoisky) succeeded to progress to the second round anyway. Kolomoisky, (according to Tymoshenko) could not come to an arrangement with Poroshenko, and nobody else could compete with Yuliya Tymoshenko in the fight for a place in the second round. Tymoshenko’s HQ considered that it will only be profitable for Kolomoisky to build a derby of his candidates in the second round. Besides this, buying off commissions cost a lot, and Kolomoisky is known for paying without bargaining, while Tymoshenko got used to not spending, but earning money during political campaigns. So why not allow Kolomoisky to pay for the loyalty of the commissions? After all, he is an ally, and it’s not seen that he has options for changing his partner.

Igor Kolomoisky turned out to be much cleverer than all other Ukrainian politicians. He forecasted the situation further than the first move. It is obvious that as soon as Poroshenko started to lose his chances of keeping the presidency, Tymoshenko’s interest in cooperating with Kolomoisky had to promptly fall. Why would she need to share power with his stooge, knowing firsthand how difficult working with Igor Kolomoisky is. It is possible to try to become the sole leader. Especially since the entire Ukrainian oligarchy was afraid of, and hated, Kolomoisky for being too clever and unpredictable and easily outplaying all of them in any conflict.

Generally, by arriving with Zelensky in the second round of voting, Tymoshenko would’ve – practically with guarantee – started to bring together an anti-Kolomoisky coalition. It shouldn’t be excluded that she would’ve succeeded to make Poroshenko (from the remains of his administrative resource) join this affair, having promised to preserve his property and freedom after her arrival to power. And even if she wouldn’t have done this, then she nevertheless had the opportunity, and in politics it’s intentions, not opportunities, that are evaluated. Especially since Tymoshenko never thought about fidelity to her colleagues in the fight and sold them every time as soon as the need to have them disappeared and a buyer was found. But Kolomoisky not only did an overtaking manoeuvre, having committed treason before being betrayed himself. This did not solve for him the problem of the second round, because the Poroshenko who progressed to the second round became the same point of assembly for all the anti-Kolomoisky forces, which Tymoshenko could’ve been instead. And it is unknown who would be more dangerous for Kolomoisky.

Kolomoisky played with two partners at the same time. On the one hand, by using his control over Tymoshenko’s commissions, he gave Poroshenko a free pass to the second round. I think that Yuliya Tymoshenko rejected the idea of creating a scandal concerning falsifications not least because they happened in those territorial election commissions where her people were sat. They simply committed falsifications not in her favour. To be indignant with your own appointees, accusing them of falsifications, looks not only stupid, but also dangerous, since nobody will work with you after this.

On the other hand, Kolomoisky ensured a huge advantage in votes for his stooge. Zelensky collected 165,000 more votes than Poroshenko and Tymoshenko combined. This move has huge psychological value. Knowing to what extent Tymoshenko and Poroshenko’s electorates are mutually exclusive, nobody will believe that their voters will unite against Zelensky. It’s rather the voters of Tymoshenko who will support the stooge of Kolomoisky. There is a similar situation with Yury Boyko’s voters too. But Boyko + Tymoshenko + Zelensky = nearly 10.5 million votes. Even if 1.5 million will not come to the election or will vote for someone else, victory in the second round is more than guaranteed.

Moreover, Poroshenko, Tymoshenko, and Boyko’s results were located very closely. Between 2nd and 4th place the difference is about 4% and is less than 800,000 votes. This gives Kolomoisky a good reserve for the parliamentary election, which is supposed to take place in the autumn, but can be carried out ahead of schedule (whilst the people’s belief in the “noble comedian” hasn’t yet deflated). If the parliamentary election correlates in general with the presidential one, then, having entered the list of Zelensky’s party “Servant of the People” into parliament, Kolomoisky will receive “golden stock”. A possible certain drop in the level of support for Zelensky can be partially compensated for by pointing to the fact that the “oligarchical parliament” does not allow the “people’s president” to assert himself. The main compensator, allowing even to improve the parliamentary election result, should be Poroshenko’s electorate. In any society 5-10% of active voters vote for any government. But if Zelensky is elected as president, then he will already be “any government”, and this means that these 1-2 million voters will join the ranks of his supporters.

If the results of the parliamentary election at least partially correlate with the results of the presidential one (and they will correlate even more than they usually do), then five-six party projects will be able to enter the Rada. Smeshko can join somebody, but independently he will not bring his party to the Rada. The passage of Poroshenko’s “Solidarity” party to the Rada is also under question. Taking into account the overflow of votes to Zelensky and their outflow from Poroshenko, a coalition can be formed either with Boyko or with Tymoshenko, or with both of them. If it is necessary, it can be strengthened by the minority party project of Lyashko, who is always ready for services of this sort.

Kolomoisky has already shown how he is able to control voting. So there is practically no doubt that the parties he needs will receive the necessary number of votes. He has one problem – the very probable disloyalty of Zelensky after he becomes president, gains power, and oligarchs will begin to come to him with the offer to have their wallet and their people in state office. But since this problem lies on the surface, Kolomoisky should foresee it, especially since it is possible to solve it in several ways, without particularly straining himself.

[mikemortgage]

Time is dangerously running out for Canada’s unhealthy, uncaring health-care system

This May Hurt a Bit: Reinventing Canada’s Health Care System, a new book from Ontario political consultant Stephen Skyvington, will be released on Feb. 2nd. The following excerpt looks at how politicians have used and misused the Canada Health Act in ways that makes the system less caring — and Canadians less healthy. It has been edited for space. 

With all the noise and chatter about the Canada Health Act over the years, it’s easy to forget the act only deals with how Canada’s health-care system is funded, not how each individual province sets up its system and delivers care. It’s also instructive to remember that as a result of the way our country’s constitutional powers are divided, adherence to the conditions set out in the Canada Health Act is completely voluntary. In other words, no province or territory is obligated to embrace the act or follow it to the letter. However, the federal government made sure the legislation contained enough disincentives that every province would eventually find it to their benefit to fall in line and adhere to the criteria and conditions of the Canada Health Act.

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Should any province decide not to comply, something that has happened from time to time over the past three-decades-plus since the act became the law of the land, the federal government had the right to withhold all or part of a transfer payment, depending upon how egregious the offence. For instance, Section 20 states quite clearly that should a province violate the prohibition on extra-billing or user fees, an amount equal to that collected would be deducted, dollar for dollar, from that province’s transfer payment.

In 1993, the federal government reduced British Columbia’s transfer payments by more than $2 million after it was discovered the province had allowed roughly 40 doctors to extra-bill patients over a four-year period. Three years later, it was Alberta’s turn. The province had its transfer payments reduced by more than $3 million because it turned a blind eye when private clinics started charging patients user fees. Newfoundland and Manitoba also suffered government clawbacks during the late 1990s, for much the same reason as Alberta. Nova Scotia was similarly dinged for allowing user fees in private clinics. It’s important to note, though, that to date all issues regarding non-compliance have been, for the most part, settled through negotiation or discussions between ministers.

Those are some of the conditions and administrative details. Let’s take a closer look at the five principles of the Canada Health Act:

Public Administration

Section 8 of the act says that in order to be eligible for health-transfer payments from the federal government, all provincial health plans must be administered and operated on a non-profit basis by a public authority appointed or designated by the government of the province; the public authority must be responsible to the provincial government for that administration and operation; and the public authority must be subject to audit of its accounts and financial transactions by such authority as is charged by law with the audit of the accounts of the province. Again, it’s important to note that we’re talking here about the funding of health care, not the delivery of services. Nowhere does it say that health-care services can’t be privately delivered, or even, I would argue, privately funded.

Comprehensiveness

Section 9 says that provincial plans must cover all insured health services provided by hospitals, medical practitioners or dentists, and where the law of the province also permits, similar or additional services rendered by other health-care practitioners. While the act makes clear in Section 2 what is meant by insured services, there’s been a significant amount of debate over what should or should not be covered today in the 21st century. As has been pointed out, the Canada Health Act almost exclusively defines insured services as those delivered either in hospitals or by physicians. But with the shifting of care from hospitals to the community over the past 20 years, along with a growing dependence on home care, there undoubtedly is a need to re-examine these definitions and modernize them so that they better reflect the world as it exists today, not as it was back in the mid-1980s.

Universality

Section 10 states that all insured persons must be covered for insured health services provided for by the plan on uniform terms and conditions. Strangely, the act’s definition of insured persons doesn’t include those who may be covered by other provincial or federal legislation, such as active members of the Canadian Armed Forces or RCMP, inmates of federal penitentiaries, those covered by provincial workers’ compensation plans, and some Indigenous Peoples. It also doesn’t include permanent residents or Canadians returning to Canada after having resided in other countries, the latter of whom are subject to a waiting period not to exceed three months before being classified as insured persons.

Portability

According to Section 11 of the Canada Health Act, provinces must not impose any minimum period or residence, or waiting period, in excess of three months, before residents of the province are eligible for, or entitled to, insured health services. After the waiting period, the new province or territory of residence assumes health-care coverage. It’s worth noting that portability provisions are subject to interprovincial agreements, as there can be variations from province to province vis-à-vis what is considered an emergency and whether or not the care received is to be paid at “home” province or “host” province rates, which can also vary from one part of the country to another.

Accessibility

Of the many criteria and conditions of the Canada Health Act, perhaps none have caused as much controversy over the years as this one. Section 12 states that each province’s insurance plan must provide for insured services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons. Further, principle five allows for reasonable compensation for all insured services rendered by medical practitioners or dentists, as well as payments to hospitals to cover the cost of providing care to patients. And yet nowhere in the Canada Health Act is either “reasonable access” or “reasonable compensation” defined.

To understand the inherent weaknesses of the Canada Health Act, and why our country’s health-care system is failing to live up to any of the principles set out in the act, it might be instructive to stop for a moment and examine some of the crucial differences affecting health-care spending between today and 1961, when the Hall Commission was first struck (setting the stage for medicare).

Since the early 1960s, Canada’s population has more than doubled, rising from 18.2 million in 1961 to 36.6 million in 2017. Meanwhile, per capita spending on health care during that same period has increased more than sixty times — it was less than $100 per person in the early 1960s while it is a whopping $6,604 per person in 2017. In 1961, 57 per cent of health care in Canada was privately funded, while the rest was covered by government. Today, roughly 70 per cent of health care is funded by the government, leaving approximately 30 per cent to be covered by the private sector. At the same time that government coverage of health costs has been increasing, Canadian life expectancy has also increased, from 68 (males) and 79 (females) in 1961 to 80 (males) and 84 (females) today. With the rise in life expectancy, there has been an out-of-control growth in chronic disease in the last few years; today, it eats up more than 70 per cent of health-care costs in Canada.

Obviously, given the spiralling costs of Canada’s health-care system, the status quo simply can’t continue to be an option. Whether we amend the Canada Health Act, add some sunset clauses, or just plain scrap it, the time is fast approaching where doing nothing will be the worst course of action possible.

Even with all the money being poured into our health-care system, there’s still not enough to fund patient demand. As a result, wait times are getting longer and longer, putting lives at risk and leading to an unconscionable amount of suffering by forcing people to wait mind-boggling amounts of time in order to access care. Our elected officials and civil servants have made a mockery of the principles of the health-care system that they proclaim they will fight to the end to preserve.

As one of the judges in the 2004 Chaoulli case said “Access to a wait list is not the same as access to care.”

And yet, there are still those who think there’s nothing wrong with using the Canada Health Act as a sort of protective shield against the sick and infirm. In British Columbia, for example, Dr. Brian Day, medical director of Cambie Surgery Centre, and some patients have been trying to convince a judge their Charter rights have been violated by the B.C. government. Dr. Day’s Charter challenge asks the following fundamental question: Why should Canada, in contrast to every other country on earth, refuse to allow its citizens to purchase private insurance to cover physician and hospital services?

During the first six months of the trial, Dr. Day and his group burned through the $2 million they’d raised by asking those who care about health care and our country to donate to the cause, all because the government had deep pockets and endless resources designed to distract the judge from the real issue and tie up proceedings for months on end. Shamefully, the British Columbia government assigned 20 lawyers to the case and spent $20 million in the first six months in hopes that Dr. Day and his patients would run out of money and have to abandon their Charter challenge.

What are they fighting about? “Privatization.” Privatization involves governments shifting responsibilities to the private sector. It’s important to remember that privatization of financing is not the same as privatization of delivery. Privatization of financing occurs when the government does things like delist services, or cut programs, or reduce fees in such a way as to make it unprofitable for medical practitioners or institutions to continue to offer a particular service.

Privatizing the delivery of health-care services is different. There are plenty of examples of this. In many cases, provincial and territorial governments have entered into agreements with the private sector to provide services in non-traditional, noninstitutional settings that are paid for by the government out of public money — typically with an eye toward reducing wait-lists for a politically sensitive constituency, such as seniors (hence the special attention paid to things like cataract surgery and hip and joint replacement).

But the privatization of delivery outside the medicare system … well now, for some reason, that’s different. At least it is in the minds of our elected officials and pro-medicare types. “We must not allow two-tier medicine to gain a foothold here in Canada,” they say. “It’s against everything we believe in as Canadians.” What our leaders and those defenders of the status quo — particularly unions — are really concerned about is that the private sector just might deliver a better product at a cheaper price, all because of a little competition.

Excerpted from This May Hurt a Bit by Stephen Skyvington, copyright 2019. All rights reserved. Published by Dundurn Press.

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Variable Annuity Investment Lawyers

Variable annuities are a hybrid investment with features of securities and insurance.

Although they can help provide a fixed income later in life, variable annuities have restrictive, complex, and confusing features that make them inappropriate for many investors. They are also a high-commission investment product, which can lead to aggressive broker sales tactics.

Variable annuities are a leading cause of FINRA investor complaints. If you suffered investment losses from variable annuities and feel that their risks were not properly explained to you, your losses may be recoverable.

VARIABLE ANNUITY FEATURES

Typical features of variable annuities include:

Tax-deferred growth

A death benefit

Periodic payment options that can provide guaranteed lifetime income

When an investor buys a variable annuity, they make either a lump sum payment or a series of payments that are invested into sub-accounts (usually mutual funds). In return, the investor is promised a future benefit. The benefit payments can either begin right away (immediate annuity) or be delayed to the future (deferred annuity).

However, as the name “variable annuity” implies, the investment’s rate of return is not fixed. Rather, it varies depending on the performance of the sub-accounts.

DISADVANTAGES OF VARIABLE ANNUITIES

Potential drawbacks of variable annuities are:

The investor will not achieve any gains—and may even lose money—since the rate of return is performance-based.

A lack of liquidity.

Fees and expenses such as surrender charges, sales charges, early withdrawal tax penalties, mortality and expense risk charges, and charges for special features such as guaranteed minimum income and principal protection.

While variable annuities have features similar to an Individual Retirement Account (IRA), IRAs offer more tax benefits. Investors are often better off maxing out their IRA contributions before they consider a variable annuity.

BROKERS AND FIRMS MUST FOLLOW PROPER SALES PRACTICES

The Financial Industry Regulatory Authority (FINRA) has specific rules governing the sales of variable annuities.

When recommending a variable annuity to an investor, a broker must inform the customer of the investment’s risks and features, including things like potential tax penalties, market risk, and fees and costs.

Brokers must also understand the customer’s investment profile and have reason to believe that a variable annuity is suitable for a particular investor. As a secondary precaution against unsuitability, a principal broker with the firm must review and approve the customer’s variable annuity application before sending it to the issuing insurance company.

If these steps are not followed—and the client ends up losing money on the investment—the brokerage firm may ultimately be held responsible for the client’s losses under FINRA’s failure to supervise provisions.

PONZI SCHEME ATTORNEYS

Ponzi schemes—investment schemes that use money from new investors to pay off earlier investors, with little or no real earnings—have been around for nearly a century, and are still going strong.

While major Ponzi schemes such as the Bernie Madoff scam make headlines, many smaller, less-publicized Ponzi schemes result in investor losses every year.

Ponzi scheme masterminds may face civil and even criminal charges for investment fraud, but this rarely results in investors getting their money back. A more practical recovery strategy for defrauded investors is to bring a claim against the broker and brokerage firm that sold them shares in the Ponzi scheme.

ABOUT PONZI SCHEMES

Ponzi schemes are named after Charles Ponzi, who scammed thousands of New Englanders in a postage stamp scheme in the 1920s.

The investment vehicles have changed over time, but the basics of a Ponzi scheme remain the same: the scammer offers returns to investors, but rather than reinvesting the money and earning profit-based returns, the scammer simply finds new investors and uses their money to pay off existing investors. In short, the Ponzi schemer robs Peter to pay Paul.

As long as there are fresh investors, the scheme keeps going. At some point, however, new recruits dry up, the mastermind takes the money and runs, or numerous investors request to cash out (often during an economic downturn). When any of these occur, the Ponzi scheme collapses—taking investors down with it.

OLD SCHEME, NEW TRICKS

Bernie Madoff became a household name as the perpetrator of the largest Ponzi scheme in history. Madoff’s $65 billion fraud hurt large and small investors alike. Only a few fully recouped their losses.

Madoff’s fraud made investors more aware of Ponzi schemes. It also put more pressure on the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) to crack down on Ponzi Schemes, since Madoff flew under regulators’ radar for decades.

But Ponzi schemes are still a major investor threat. In 2016, 59 Ponzi schemes were uncovered in the U.S. with a total of $2.4 billion in losses. Since 2012, about 65 Ponzi schemes per year have been discovered. The mean scheme is worth $6 million.

Recent schemes show that scammers are finding new ways to defraud investors. For example, the SEC has warned about Ponzi schemes using virtual currencies (such as Bitcoin), while FINRA has warned about social media-linked Ponzis.

In 2017, the SEC charged two men with running a Ponzi scheme involving tickets to popular shows like the Broadway musical Hamilton and Adele concerts. Also in 2017, a former NFL player was charged for his role in a Ponzi scheme that targeted professional athletes.

The SEC offers a list of Ponzi scheme red flags that includes:

An offer of high returns with little or no risks

Returns that do not go up and down over time

Investments in unregistered securities

Account statement errors

Promoters offering investors even high returns for not cashing out

RECOVERING PONZI SCHEME INVESTMENT LOSSES

When a Ponzi scheme comes crashing down and the schemer is caught, there may be criminal proceedings that result in assets being returned to defrauded investors. But investors are unlikely to recover more than pennies on the dollar through such an action.

It is often more efficacious for Ponzi scheme victims to pursue securities litigation or arbitration against the broker and/or the brokerage firm that promoted investment in the scheme. A defrauded investor may also have viable claims against parties that aided and abetted the scheme, such as banks, attorneys, or accountants.

Free Initial Consultation with an Investment Lawyer

When you need legal help with securities, investments or other business matters, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC8833 S. Redwood Road, Suite CWest Jordan, Utah 84088 United StatesTelephone: (801) 676-5506

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