Abate Legal Services

Browse some of Rod's articles.

Recent articles

Archived Articles

Ask Our Lawyer - April 2009

Helping Members in Foreclosure

As we know, economic times are tough. We are receiving a number of calls about mortgage foreclosures. It is painful to receive calls from folks just trying to save their home. I had a call from a member that had been paying on his home for almost 20 years. The mortgage company was in the process of starting foreclosure. By luck, we were able to talk the mortgage company into to taking half payments– for a while. My point is, we try to help our members in any way we can. Some we help by getting a reduced payment; some by reviewing their options, some by getting some delay; and for some all we can do is listen. This is a very painful time for all of us. The least we can do at ABATE is lend an ear and do what we can for our fellow members. If you have know an ABATE member that has been backed against the wall in these bad times, do not hesitate to give them my number. Even though I am not a real estate lawyer, I will jump in and see what we can do to help. Actually, by default I am becoming a damned good real estate lawyer. It is not the way I planned.

Mortgage foreclosures increased over 80 % in 2008 in some cities. Many of our members know this firsthand. Previously, the lender’s attitude was that if your house went to foreclosure you were screwed with costs, interest and attorney fees. Times have changed and so have your options in dealing with lenders. We have learned much in helping our members. Here is what we have learned about the current rules of mortgage foreclosure.

Rule 1. Lenders never become whole when it forecloses on a home. So the less time spent in this process the better for the lender.

Rule 2. Use Rule 1 to get banks to work with you. For example, if your interest rate is 8.5% but you can make payments based on a 5-6% - that is still a good rate and a good loan for the bank. Show them it is in their best interest to consider your proposal.

Rule 3. It is easier for the bank to find a buyer with the house occupied and maintained. This will buy you and your family some more time.

Rule 4. Let the lender know you may qualify for Chapter 13 bankruptcy. In bankruptcy, all efforts to throw you and your family out of you home come to a halt. This buys you time – time to figure something out before you are in the street. Chapter 13 is for those who have regular income. You must have a plan to pay some or all of your debt over 3 years. The judge can blow away all of your unsecured debt if you can't pay it – so long as they would get as much if you filed for liquidation (Chapter 7). Chapter 7 is where they sell all of your non-exempt stuff and give you the balance – if any. We all know that the unsecured never get anything. So that means in a Chapter 13 the judge can reduce the amount owed on a car to the value regardless of what you paid for it. The savings can go to the house payment. The point of all of this is that the lender should be reminded that they will come out ahead if they will work with you.

 Mortgage foreclosure on a house I don’t own?

Q: An ABATE member in Indiana asks us a question about an unfortunate situation. His ex-wife got our house in the divorce. Of course, she got behind on the payments and now the house is in foreclosure. He asked if he had any exposure on the mortgage?

A: It’s possible. It depends on what happened in the divorce and if the mortgage was redone to remove you from it. If it wasn’t then you may still have some liability. Check the mortgage documents carefully to see what obligations you have on the agreement. If you are still obligated, you should try to talk to bank or, if they won’t talk to you, to their lawyer as to any remedies he may have. You should also go to the sale and take notes – see who is there and what is done. Remember, the sale must be done in a commercially reasonable way or it can be challenged. Also, you may want to ask your divorce attorney whether the obligation under the mortgage was extinguished by the divorce. If not, the lawyer should explain why not

What do you do when you get stopped by the cops

Some advice from Digger Phelps

Many people ask me what they should do when they get stopped by police while riding their bikes. Digger Phelps tells a story about an incident in which he was involved that demonstrates perfectly what to do and what not to do.

It seems that Digger was going from Louisiana to Texas. As it happens, he didn’t have his headlight on, thus attracting the attention of the local peace officers. He pulled to the side of the road, dismounted the bike, and reached for his wallet, only to hear the sound of shotguns being cocked and the police officers telling him to freeze.

On further reflection and discussion with the officers, Digger realized that the proper procedure is to remain the bike with you hands on the handlebars until the officers request that you dismount. It’s also probably advisable to explain any movements to the officers you need to make, like reaching into your jacket or vest to retrieve your wallet. It’s best that there are no surprises in situations like this, as Digger will attest.

RoadHazard.Org success!

RoadHazard.org continues to get things done. I recently got the following email:

My husband recently reported a pothole to RoadHazard.Org. I noticed last night that the pothole has been filled. I think its great that ABATE has this website to inform you about the potholes.

We’re glad to do it! Keep those reports coming, and we’ll keep working on getting them fixed.

South Carolina helmet laws, again

Q: I am currently house sitting in Charleston, SC for my daughter while she is in Iraq. Naturally I brought my bike with me. While checking out info on the 69th Annual Spring Bike Week in the Myrtle Beach, SC, area I found that the city of Myrtle Beach has passed a helmet law.

Is this legal when the state only requires helmets for those riders under 21? If I am charged while riding through Myrtle Beach without a helmet will I have to pay the fine?

A: First of all, thanks to your daughter for her service, and thanks to you for helping her out. Yes, Myrtle Beach did vote in an unconstitutional helmet ordinance. Typically cities and towns can not pass a law more stringent than state or federal law. Imagine the mess we would have if every town had a different law. I am also troubled by the age discrimination -18vs21.

That said, be prepared to get a ticket and a fight in court. I would argue that state law preempts the city ordinance. Also, you can carefully check the borders of the city. If you were outside the boundary – even by only a few feet – that is a defense.

As I have said in other columns, I don’t believe that this ordinance, which is more restrictive than the state statute, is lawful. The Myrtle Beach City Council approved Ordinance 2008-64 at its regular meeting on Tuesday, September 23, 2008. The critical part of the ordinance says, “While on a cycle, the operators and passengers must be helmeted as set forth herein and wear a form of protective eyewear.” Cycles include motorcycles and mopeds. The current law in South Carolina is that anyone under the age of 21 is required to wear a helmet. Failure to do so is a crime and subjects the violator to a fine and/or jail. The new ordinance affects all ages and subjects violators to a civil infraction fine, not jail.

Obviously, the new ordinance is more restrictive than the state law. This puts travelers in an untenable position - the mere act of crossing the city limits puts them in violation and subjects them to fines. I don’t believe this is fair or just.

Checking the pipes

Q: I just received a ticket in South Florida in Palm Beach for loud pipes. I have Cobra pipes but was not being loud at the time I am aware of the noise regulations in the area. The police officer pulled over my husband so I stopped too. The officer checked my husband’s pipes but they had baffles. He checked my bike and I have a screen, so he was able to push the stick through. Can I fight the ticket since I was not loud at the time, just checked at random?

A: It depends on what the officers are permitted to do under local statutes and what the statute requires. If they made a search without probable cause, you would have a good chance to fight this ticket. If they were conducting a checkpoint for motorcycles to check pipes, or if they asked if they could check your pipes and you agreed, then you would have a more difficult battle.

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services