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Questions and Professional Answers

Questions and Professional Answers

  • declaration of homestead

    We purchased our home in 3/97 and filed a declaration of homestead in massachusetts. We refinanced in Jan 1998 and were not required to re-file the homestead. We just refinanced again this month with a different lender who required us to release (or waive ) the homestead. Now i have to re-file it........why would a lender require a release on the homestead?Second part of my question is we have a judgement for a credit card which has not been executed yet......since we had to release the homestead to refinance does this leave our home vulnerable....or does refiling the homestead take care of that......the debt was from 1997 and thats when we filed the original homestead. (homestead was filed before the debt began)
    • Re: declaration of homestead

      The new bank asked you to relese the homestead because it doesn't understand that mortgages are not affected by homesteads; homestead protect the equity in your home >above< any mortgages. The credit card part of your question is interesting; I would argue that the original homestead protected the home against the execution. Keep in mind, however, that a really nasty creditor could still force a sale of the home in certain circumstances, so don't think that the homestead is absolute protection! Best wishes.

      David Baker
      Law Office of David Baker
      236 Huntington Avenue, Room 306
      Boston, MA 02115
  • Texas Homestead Law clarification

    A creditor has won a judgment against us and filed a lien on our homestead property.We currently rent the property but intend to return to our homestead in the near future. We have not established a new homestead.Q:Who long can we rent our homestead and still keep the exemption?Can we sell the property with a clear title. Does the lien hurt our ability to sell the homestead property?
    • Re: Texas Homestead Law clarification

      The fact that the property is rented raises a question as to homestead exemption. As it presently stands, you cannot sell with a clear title since the lien attaches to all property that you won in that county.Getting an attorney to clear your title may result in a lawsuit to prove up homestead.

      Peter Bradie
      Bradie, Bradie & Bradie
      6606 FM 1488, Suite 148-363
      Magnolia, TX 77354-2544
  • Homestead Deed, Viginia

    Aside from the answer I saw posted here, does the Homestead Deed, or exemption protect your house, or homestead as long as you make payments on time?A lender considering issuing me an equity credit line is qestioning me about their wish to ''remove'' the Homestead (exemption) Deed in place since my C7 in 2003.The broker has said ''they think they can work around the Homestead Deed''.Does this mean it protects me and they want to nullify that protection?
    • Re: Homestead Deed, Viginia

      You can't "remove" a homestead deed. It may protect you to an extent from judgment liens, but not from a mortgage/deed of trust.

      Daniel Press
      Chung & Press, P.C.
      6718 Whittier Ave., Suite 200
      Mclean, VA 22101
  • Homestead Protection

    We have been advised by an associate to ''Homestead'' our house. All definitions related to Homestead that I have seen on the internet say that it is designed to protect you from creditors. Does is also protect you from a disgrunteled customer who may be seeking legal and/or financial recourse? Are there tax or title impications involved with Homestead? Please advise. Thanks very much for your help!
    • Re: Homestead Protection

      A homestead recorded in the County in which your residence is located will protect any excess value of your home, over and above any loans you may have on the home, up to the maximum amount of your statutory homestead protection. In California that amount is $75,000.00 for a husband and wife, (unless one of you is disabled, over 65, etc., in which case it is $150,000.00). For example, if you have a house worth $500,00.00 and you have loans of $400,000.00 on that house, then your equity is $100,000.00, and $75,000.00 would be protected if you record a homestead. A disgruntled creditor is of concern only if he files suit, wins and gets a jdugment, in which case he could seek to satisfy that judgment out of the equity in your home. There is no tax impact, but every time you get a new loan, you will have to "release" the homestead, but you can then re-record it. Note: some people erroneously believe that it protects you from foreclosure by a lender from whom you have obtained a loan; it does not.

      Judith Deming
      Deming & Associates
      5334 E. Chapman Avenue, Suite 100
      Orange, CA 932869
    • Re: Homestead Protection

      In addition to the home equity protection given by a recorded declaration of homestead, you already have a so-called 'automatic homestead' in that California law exempts certain property, including some home equity, from execution and levy to satisfy judgments.The overlap is sufficient to reduce and sometimes eliminate any advantage from filing a homestead. Also, in some situations, filing a declaration of homestead can be a red flag to creditors, plaintiffs, or other people you do business with, calling attention to your fears.I'm not saying don't do it, just giving you the rest of the picture.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • Declaration of Homestead Coverage one or both married spouses?

    Hello, I live in Massachusetts. I am a female and I own my home currently with my husband as Tennents by entirety and do have a mortgage. I put a homestead on the property with my first husband, we were divorced and I kept the homestead revised in my name (it was always in just my name) and I did remarry and updated my name to reflect my married name. MY QUESTION: My husband has a creditor who is trying to put a lien to attach my house & property. Can the creditor do that even though I soley have a homestead in my name on the property and not my husband? How does that work and does it matter if the holder of the homestead act is male or female or has to be the husband? Can husband put on a homestead in his name as well or do we have to redue as husband and wife a new homestead declaration? Thank you.
    • Re: Declaration of Homestead Coverage one or both married spouses?

      Only one person may record a Declaration of Homestead. If two or more people sign the homestead declaration, it is NOT invalid, but it is valid for the FIRST person to sign it. On the other hand, a homestead is for the benefit of the entire family, so your husband benefits from your homestead, too. A homestead does not prevent a creditor from getting a lien. It would only prevent the creditor from collecting any money when the home is sold or the mortgage refinanced so long as the debt arose after the homestead.

      David Baker
      Law Office of David Baker
      236 Huntington Avenue, Room 306
      Boston, MA 02115
  • Homestead Act

    I am recently divorced. My ''X'' husband will be signing off the deed to the house that I and the kids live in now, but he has not done so yet. I have already taken over the mortgage in just my name. My question is: Can I have the Homestead Act placed on this house now? If so, would it be in just MY name? OR - could I get the Homestead Act in both our names now if that's necessary then when the ''X'' signs off the deed do another Homestead in just my name? HELP! Thank you,
    • Re: Homestead Act

      You can file a homestead in your own name now. You do not have to wait for the deed from your husband.

      Jonathan Roth
      Donovan Hatem LLP
      Two Seaport Lane 8th floor
      Boston, MA 02210
  • homestead

    What does this mean on your mortgage, Borrower waives all rights of homestead exemption in the property and relinquishes all rights of courtesy and downer in property. I have a declaration of homestead but then I refinanced. I want to know if I need to complete another homestead.
    • Re: homestead

      Filing for the homestead exemption protects the first $300,000 of value in your home from being attached or seized by creditors, then sold, to satisfy debts you owe, usually civil judgments for injuries to others. Equity above $300,000 is unprotected from attachment.If your refinance says you've waived your homestead rights, the lender probably made you do that as security in the event you defaulted on the loan. Having waived homestead, it looks like if you default, the lender could seize your house, and sell it in a forclosure, and apply the proceeds from your equity to pay off the amounts remaining on the defaulted loan. In other words, you have no $300,000 protection. If you are still able to file for homestead protection, I urge you to do so. Its a form and a filing that can be done in a day or two. Contact me if you'd like me to look at the documents and file for protection if you're still able to do so. Dower and Curtsey is an antiquated doctrine that, I do not believe, has much relevance today.

      Craig J. Tiedemann
      Tiedemann Law Firm (TLF)
      92 State Street, Ste 700
      Boston, MA 02109
  • Homestead act, pros and cons??

    What benefits, and or penalty, if any does the homestead act provide for a home owner? I pay a mortgage so the land is owned by the bank. I'm mainly concerned with how the homestead act may protect or expose my property in any event. I have looked on the web and can't find anything explaining the pros and cons to filing for the homestead act.thank you
    • Re: Homestead act, pros and cons??

      For homestead info, check out this page on the Norfolk County Registry of Deeds website. The address is www.norfolkdeeds.org/homestd.html.

      Robert Trant
      Law Office of Robert R. Trant
      678 Massachusetts Ave
      Cambridge, MA 02139
  • Homestead Law / Homestead Exemption

    Wjat states have a homestead law? If these states have homestead exemption, does it protect them from creditors like the homestead act in Texas?
    • Re: Homestead Law / Homestead Exemption

      A homestead exemption is a law which requires the payment of a stated amount of money to the owner of the exemption before the real property in which the homeowner lives is sold at foreclosure. The amount differs from state to state, as does the ability to "waive" or give-up the exemption at the time of signing a mortgage.Most states have a homestead exemption or similar measure which is designed to provide enough money for a defaulting homeowner to start over and avoid bankruptcy or being on public relief.

      Charles Aspinwall
      Charles S. Aspinwall, J.D., LLC
      PO Bx 984
      Los Lunas, NM 87031-0984
  • Homestead

    me and my wife own a house in florida since many years.Homestead was recorded at the record office.sh he divorce me recently.what will happend to the HOMESTEAD if she died.
    • Re: Homestead

      Her one-half of the house will pass to her heirs, or to the beneficiaries under her will, if she has one. UNLESS she has minor children at her death, in which case the house (if it is her home) will pass in equal shares to all her children, will or no will; and if she remarries without a pre-marital agreement, her new husband would receive a life estate in the home, with the remainder at his death going to her children, or she could leave the house to him in her will if she does not have minor children.

      Frank J. Pyle
      Probate Attorney Throughout Florida
      401 West Colonial Drive, Suite 4
      Orlando, FL 32804