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FREQUENTLY REQUESTED ARTICLES - Scroll Down TOPICS: Id theft Social Security Real Estate Divorce Predatory Lending - (NACA REPRINT) Sample Living Will and Health Care Proxy
Identity Theft: To Do List
Immediately contact the creditor associated with the fraudulent activity both by telephone and then IN WRITING specifically describing the problem.
* Lost or Stolen Credit Cards:
Federal law limits your liability to $50 for unauthorized charges to your account. It is important to know if you gave anyone your card number. This is one reason not to ever give it over the phone.
* Lost or Stolen ATM/Debit Cards:
Federal law provides that your liability for unauthorized debits is limited to $50 so long as you report the loss of the card within two business days of discovering that it's missing. Otherwise, your liability increases to $500 for reporting it within 60 days. If you fail to report it within that period, however, your liability could be unlimited.
Once you report the loss of the credit or debit card, you can't be held responsible for any additional unauthorized charges.
* If there are Fraudulent Charges on your Monthly Statements:
If you believe there are fraudulent or erroneous charges on your existing credit account, contact your creditor immediately. Federal regulations require credit card companies to remove disputed items from your bill in order to investigate. It is important to note, however, that all disputes must be put in writing.
If you have closed a credit card account due to fraud and have opened a new account - insist on password-only accounts.
Immediately call the fraud help lines of each of the three major credit bureaus to inform them of the situation. Be sure to tell the credit bureaus to flag your file with a fraud alert including a statement that creditors should call you for permission before opening any new accounts in your name.
Trans Union Fraud Victim Assistance Department Experian Consumer Fraud Assistance Equifax Consumer Fraud Division
Inquire into the credit bureau's procedures for having a statement attached to fraudulent information in your file so that future potential creditors are aware of this.
Place a security freeze on your file to prevent further damage to your credit history.
Report any fraudulent activity to the appropriate police and sheriff departments with jurisdiction in your area. Be sure to keep a copy of the police report because financial institutions often require verification that there was a purported crime before they will continue an investigation. The Federal Trade Commission offers assistance to identity theft victims at (877) IDTHEFT orwww.consumer.gov/idtheft
*Stolen Checks: If you believe any of your checks have been stolen or fraudulently used, immediately notify your bank. Have them put "stop-payment-orders" on your checks and consider closing out all existing bank accounts and then opening new accounts with new account numbers.
Also, report stolen or fraudulent use of checks to: Telecheck: (800) 710-9898, CheckRite: (800) 766-2748; Equifax: (800) 525-6285; ChexSystems: (800) 428-9623; International Check Services: (800) 526-5380; SCAN: (800) 262-7771; NPC: (800) 526-5380
* Social Security Number: If you believe someone has used your Social Security Number to get a job, contact the Social Security Administration at (800) 772-1213 to confirm all reported earnings information. To report fraudulent use of a social security number, call (800) 269-0271. More Information On Social Security Number Fraud can be found at: www.ssa.gov/pubs/idtheft.htm
*U.S. Postal Service: For complaints about products or information received through the U.S. Postal Service, or if you believe your mail has been stolen or someone has submitted a fraudulent change-of-address form, go to www.usps.gov/websites/depart/inspect or write to:
Mail Fraud, Chief of Postal Inspector Service, 475 L'Enfant Plaza, S.W., Washington, D.C. 20260
THE REAL STORY ON SOCIAL SECURITY DISABILITY
Unlike Social Security for those who can work but do not do so, Social Security Disability is for those who cannot work due to medical conditions. The primary difference between the two programs is that disability income is based upon a fraction of what the person's earnings were before they became disabled. Over the past decade, the standards for Social Security Disability have been made substantially more stringent. But because it pays more, the government fights like any litigant in a law suit - and then some. "The figures on wrongful disallowance" Sixty-four percent (64%) of Social Security claims are initially rejected by the Social Security Administration. Of the 64% who are denied, when it was still available 45% of applicants appeal. When there was Reconsideration 85% were still denied. However, of the 85% of claims which are denied at reconsideration, 61% go on to again appeal to an Administrative Law Judge for a trial and 55% of that 61% are held to be VALID disability claims! That trial with a lawyer in front of an independent law judge is the last good chance for a disabled person with a difficult case to win his/her case if the claim is valid. "How does Social Security reject so many valid claim" FIRST, the Social Security Administration as a matter of routine turns down legal Social Security Disability calims. Don't blame the employees, as the boss - the U. S. Government - requires them to apply a different set of evaluation standards than are required by the Law! As incredible as this sounds, this is uniformly done throughout the country in an effort to hold down costs. First, a high proportion of people who would qualify under the law do not qualify under the handbook which is distributed to Social Security Admnistration employees. Second, as the figures show, a substantial percentage of those people who qualify under the C.F.R. (the actual standards) do not bother to appeal due to lack of education, discouragement and the like. SECOND, the Social Security Administration hires "professionals" to review the file - usually without seeing the injured worker - and who will usually "profess" what good shape the claimant is in. Often times, these doctors do not practice medicine or carry malpractice insurance as their sole source of income depends on their "independent consultant fees" which range from $500.00 to $1000.00 per hour. Personally, when we have to use outside professional medical or vocational help for claimants, I look for people who the law judges know to be honorable or consultants who the Compensation carriers or Social Security Administration no longer hire because they would not pull punches evn when their income was on the line. The Real Standards The process of Social Security evaluation is sequential. Your disability must have existed for one year or be reasonably expected to continue for in excess of one year and must prohibit you from doing any job in the national economy. Then you must qualify in one of three ways: First way: There are certain defined illnesses that automatically will result in Social Security being granted at the law judge hearing level. Your lawyer can provide the doctor with the definitions and list of tests that are needed to support the doctor's opinion. As regards loss of the musculoskeletal system for the spine, for example, pain is certainly an important factor to consider but it must be associated with 28 different relevant abnormal signs and any relevant laboratory findings. For many conditions, lab tests must be ordered whether your doctor thinks they are necessary or not in order to substantiate his or her findings; this is not unreasonable if such tests exist. A simple statement that the patient is totally disabled because of damage to the spine, for example, won't do. All this is serious business and guessing games don't work. You need a doctor who takes time with the forms, believes in disability, and who doesn't try to show how well his or her surgery went when in fact you are suffering; someone has to read your doctor's reports to be sure they are sufficient. The most frequent problem I see is with estimates of lifting capability rather than nerve conduction studies to actually document the severity of the problem. The second way to qualify: If you do not have a listed illness (many are not), you may still be eligible because your residual capacity to do work is impaired - you medically might not be able to perform a job in the national economy because of education, physical ability and the like. The test to determine whether or not this secondary type of analysis must be undertaken is called the "residual functional capacity" test or "grids" for short. Basically the grids are a series of employability tables. At age 51, for example, a person is in the "closely approaching advanced age" catagory. In that catagory a person would be disabled only if the claimant is a high school graduate without transferable education and without transferable skills and limited to a sedentary job. Each term has legal definitions. For example, sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like files, ledgers, and small tools. In addition to being able to sit for several hours at a time, a sedentary job requires only an occasional amount of walking and standing. On the other hand, if it were the advanced age catagory such a person would be disabled if he or she were limited to "light work". Light work involves jobs which can be taught after a short period of demonstration or within 30 days. They do not require special skills or experience. Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects up to ten pounds. At this stage of establishing your case, in addition to your doctor, your lawyer may have to turn to a vocational rehabilitation counselor to deal with issues your doctor is not comfortable with or qualified to answer. The grids are not substitute for professional evaluation of your individual case - my experience is that claimaints who fill out their own application often leave out critical information because they know that their doctor has said they are disabled; so the lawyer and rehab specialist are needed to go back and pick up the pieces and to be sure that the doctors rehabiltation expectations are not out ot line with the job market. The Third Way: If the illness is not "listed" or the "grids" do not help, one has to examine "Actual Limitations" Sometimes there are certain environmental, manipulative, or other limitations - usually caused by multiple disorders - which could render a person disabled for Social Security Disability purposes even if he or she does not meet the "listing" or the "grids". If the doctor can show that grids do not apply because of "manipulative" or "posture limitations" which prevents the person from engaging in any substantial employment activity and prohibits them from engaging in any vocationally relevant past work, the person may be disqualified on that basis alone. I must warn you, however, that this last - fall back - analysis must be very clearly proved to be accepted. CONCLUSION Do not become discouraged when you are initially turned down. Consider hiring a lawyer who practices this type of law. Be sure your doctor is not only willing and able to help you but will take the time to work with the lawyer to be sure that the legal requirements are addressed or referred to the vocational specialist. And remember that everything from the first application to the final decision must be carefully documented.
Buying or Selling a Home - Staying Local is Best
The Realtor Considerations: If you are the buyer, you want to be sure your broker knows the market - prices, schools, inspectors, and contractors. If you are the seller, you want someone who will actually show your home frequently. Realtors located close to you will show the house most often. Be sure your realtor is a member of the Multiple Listing Service. With an MLS, both realtors get paid out of the commission without complication and at no additional cost.
Your Attorney Considerations: 1) You need an attorney located close to you no matter where you live in the state. And, in some areas of the state standard purchase offers state that the offer is subject to obtaining attorneys approval within a few days or the approval may be waived . You usually can get in to see local attorneys quickly and before this time limit expires; like the realtor, they know the lay of the land. 2) If the bank or mortgage broker tries to send you to its closing attorney, insist on a full disclosure statement about all side agreements, fees, and related subcontractors - by law these must be disclosed, but the fact is this is often overlooked. 3) The bank’s only concerned is that it gets paid. Banks require "Mortgagee Insurance" which will pay it off if the buyer loses the property, or some portion of it, in a law suit. What a buyer actually needs is "good and marketable title" which the buyer’s attorney guarantees. 4) Sellers need to be sure of many things including potentially hidden costs.
More Than An Abstract and Deed Are Required The abstract lists the legal history of the property. It doesn't tell you if there is a problem and often what the abstract doesn’t say is just as important as what it does say. This is what is meant when an attorney "reads the abstract". The deed contains a description of the property and various promises. The "warranty" in a warranty deed is, as a practical matter, only as good as the attorney’s reading of the abstract and survey. The attorney and your title insurer know what these documents need to disclose.
The Mortgage Broker and Bank Nowadays, mortgage brokers often match a buyer and a bank. There is a great deal of variation between banks! Some will do their paperwork quickly and are easy to deal with; many are like pulling a tooth. Several banks have all sorts of extra (sometimes bogus) fees that are not advertised in advance. Some banks pay the mortgage broker based, in part, on a mark up of interest rate by the broker. Find out how the broker expects to get paid. The broker is absolutely entitled to be paid for helping you but many question if (or at least how much) a mortgage broker should also be paid if he or she has steered business to a particular bank because of the fee arrangement. Never sign an arbitration agreement! It is a fairly sure sign that the bank has been particularly aggressive with your loan and its charges. Find out if one is required at the outset.
How Fast Can We Close 1) Even though the contract may say that closing will be on a particular date, unless your contract or accepted purchase offer states "time is of the essence" reasonable delays in obtaining closing documents and actually closing are acceptable and legally enforceable. Many people will be at work on different parts of each project.. 2) In some areas and for some properties attorneys will not order the abstract and survey until the buyer’s bank commitment is received. Both are dated materials and expire if you do not close in a timely manner. Your local realtor and local attorney can often have a sense on how fast a property may sell - they know what prices will move. And they will tell you if the price you want is simply beyond what the market will bear. Both seller and buyer must work this out and tell the attorney if they want to take this risk and then figure out who will pay if there is a problem.
Many Costs Are Fairly Standard 1) Most abstract companies and surveyors have fairly comparable fees. (Some surveyor’s are just plain better and/or quicker than others and some may charge a few dollars more for better service and/or quality.) Both the buyer and seller are well served when the survey is accurate and the attorneys know the surveyor’s work can be trusted! 2) The basic Title Insurance rate, recording costs, and transfer taxes are set by the State. This can occasionally cause some delay so get to this as soon as possible.
Comment A home is the biggest investment most people ever make in their entire lives. It is also most seller’s principal asset. With so much money involved, there is no substitute for care and professional attention. You need someone close by who knows the market, the realtors, and all the things you need to, and want to, know about the purchase and sale of your property. Your local attorneys and realtors will provide good service, fairly. Your home is local, doing business near where you live is best.
DIVORCE- THINGS TO AVOID REGARDING CUSTODY
If you think a divorce is hard on you or that its tough to be s single parent, just think about your children. Children are like sponges. What they do not know or sense outright they will figure out. They do not have to be in the room or even hear exactly what went on. This is a list of ways I have seen that poeple try to hurt the other parent. Each and every one of them will hurt your child. If a Judge suspects you are doing any of things your case will be jeopardized. These hostile and aggressive behaviors are improper and a litigant - any concerned parent - should not do any of them! 1. Bad mouth the other parent in front of the child, 2. Interfere with healthy telephone contact, 3. Hang up the phone - or force the child to hang up - in the middle of a conversation, 4. Encourage the child to defy the other parent regarding things the other parent reasonably deems inappropriate considering the child's age and maturity, 5. Bad mouth the other parent decisions regarding things the other parent reasonably deems inappropriate considering the child's age and maturity in front of the child, 6. Cause problems or delays over seeing the other parent - if you really want to hurt your kid be sure to include birthdays, holidays, family weddings, funerals, Mother's day, Father's Day and such things, 7. Don't cooperate about summer visitation or other holidays - just wait to the last minute and be sure the other parent has dates when he/she has no vacation time, 8. Take the child to doctors or other professionals without first telling the other parent or letting them be there or first speak with the child, 9. Refuse to let a third person help talk over problems, or coordinate events, if there have been problems, 10. Be unwilling to participate in family conferences, 11. Refuse to participate in fair and equal parenting arrangements except on your terms, 12. Plan activities for the child which interfere with the other parents activities/schedule - don't even bother to call to check such things out first, 13. Bribe the child or entice them with something that will interfere with the other parents scheduled time, 14. Don't permit - or make it clear you do not like - the child to have pictures of the other parent in their room, 15. Don't give your or the child's telephone numbers, whereabouts, employment addresses and telephone numbers to the other spouse, 16. Call the other party at home or work all the time when you are mad or angry with them, 17. Have the child call your boyfriend or girl friend "Dad" or Mom" and use there last name, 18. Talk about adoption - particularly if the other parent is paying support or visiting regularly, 19. Don't talk to the other parent about day care and find the most expensive place here is, 20. Use someone other than the other parent for a baby sitter when the other parent could reasonably and easily be available - that's right don't even bother to call to find out, 21. Go to the other parents family events when you are not invited, 22. Get in arguments over pick up times return times that are off by a few minutes - and then to seal the deal be way early or late yourself, 23. Don't tell the other parent about important school events, holiday, or extra curricular activities - this is especially hurtful when they would not find out directly from the school, 24. If you have difficulty with getting information about regular school information just argue with the other parent rather than trying to get information directly from the school, 25. Don't let the other parties family know about or go to school or extra curricular activities, 26. Don't' tell the other parent when the child is sick or hurt, 27. Throw out the other parents photos and family photo albums, 28. Give the other parent bad information about school, health or any other matter, 29. Give the school bad contact information about the other parent, 30. Be rude to the boyfriend or girlfriend without just cause or reject friendly efforts to work cooperatively, 31. Do not accommodate the child requests for minor or temporary changes in visitations, 32. Refuse to let the child have a cell phone provided by that parent, 33. Keep the kid home if you expect the other party to show up, 34. Cover up - take pages out of the school reports or other reports that the other party might reasonably want to discuss, 35. Unreasonably Hang up on the other party in anger in front of the child, 36. Don't pick up the other phone call and be sure the kids knows it, 37. Tell the other parent to take a hike when there are small reasonable extra expenses, 38. Keep on smoking in the home even if the child indicates discomfort, 39. Insist on a precise time every day when the child is in the others home - this even though the child calls you regularly and the other parent is good about calling and talking matters over, 40. Don't let the child communicate with the other parties family even though they are not crooks or drug addicts, 41. Be sure that the other parent can't talk to your kid by just cutting off phone service, 42. Don't ever permit the other parent to ever have an extra lunch time or day care day with the child and just to be sure tell the school and day care provider about this, 43. Take money out the child's bank account without discussing with the other parent, 44. Don't let the child be friendly with kids whose parents might be friends with the ex, 45. Tell the child that what they do reminds you of bad character traits in the other parent, 46. Don't take actions about the child's health or well fair when the other parent or other people seem concerned, 47. Ignore bad grades, don't talk to teachers regularly, and do not accept advise about assisting with the child's grades - particularly ignore any advise about learning disabilities without bothering to consult with any other expert, 48. Don't ever let the child, not matter how old, baby sit his/her brother and sisters at the other parents home, 49. Don't let the kid take it pet to the other home even when the other parent would welcome the pet, 50. Be sure that the child can not participate in any activity when the other parent might be making decisions - ie, father's with boy scouts and mothers with girl scouts, 51. Let a boyfriend or girlfriend live in the home with your kid - its cool, 52. Change doctors and dentists without a good reason and, better yet, without letting the other parent know, 53. Flee the state or move far enough away to make visitation difficult without telling the other parent and first going back to court, 54. Physically threaten the child with death, serious harm, or an instrument or weapon as a way to tach them a lesson, 55. Threaten the other party with loss of visitation as a way to get them to sign documents, 56. Permit people under the influence of drugs, who are known sex offenders, have histories of violence, or who are under Orders of Protection, into the home while the child is there - better yet have them move right in, 57. Change or try to change the child's religion, 58. Don't let the child come visit you because they have not done what you want or there is no reasonable reason to deny the visit, 59. Try to get the health providers or teachers to say what you want to make your case better or hide something you are concerned about - just give them bad information so they can give misguided opinions in your favor; don't worry about the kid, 60. Get into physical fights with the other parent - that's a real good teaching tool, 61. Don't take Court Orders seriously and always try to make alternate arrangements - forget the schedules are good for children and that maybe the court has a good reason to think that an adult or child who the child may see is dangerous, 62. Let the child do what he/she wants about sex, drugs, smoking, firearms, 63. Let the child swear at will and particularly curse out the other parent - just as you do, 64. Threaten to move away form the other parent if you do not get your way, 65. Don't let the fact that the child is there deter you from yelling at the other parent, calling them names, or just being visibly angry, 66. Coach the child into making false allegations about the other parent, 67. Don't' tell the child that they can not talk about what you do with the other parent - (if the other parent is prying just tell the child that they can tell what they want and not to worry and then talk to the other parent to cut it out.), 68. Ask for supervised visitation just to be mean, 69. Don't give the child mail from the other parent when there is no reasonable basis to question the contents - to be really cruel do not pick up registered mail, 70. Get the kid on anti depressant and don't tell the other parent, 71. Tell the kid all the details of the Court matter no matter their age or maturity, 72. Take the other parents business records, personal records, computers and the like, 73. When there is no danger, just up and move including furniture and the like, 74. Give the child's things to other children when they have not done as you want or threaten to kick them out on the street, 75. Blow up the matter and try to get the other parent arrested as an easy solution so you do not have to go to court - (if there is in fact any danger run to the police as fast as possible; your child will know the truth), 76. Improperly claim tax credits, 77. Make harassing calls and multiple calls to the others home or work, 78. Don't follow health providers advise, 79. Over react whenever the police or school, or other parents have any concern - no matter how minor, 80. Tell the kid that the other parent is a bum who does not really love or want them, 81. Grill the child each time they come home from visitation about every detail no matter how small - they are talking about you you know, 82. Don't return the kid and keep the kid overnight without a good reason and certainly do not tell the other parent, 83. Don't take your psychiatric medications, 84. Don't give the child his her medication to take on visitations or deny the other parent the insurance card to fill them for the child, 85. Don't let the kid take toys to the other parents - or better yet once the toys or cloths are at your home be sure they do not make it back to the other home, 86. Offer the kid a TV or bigger allowance to live with you, 87. Argue over the fact that child support goes for the household and not every cent can be traced into the kids pocket.
This is a partial list - the tip of the ice berg.
Custody cases are not pleasant but they do not need to unnecessarily hurt your children. While it is best when the parties use self control, your attorney and the courts can and will help if you confront any behavior like this. They have before and they are ready, willing and able to step in now. te is designed and powered by NextClient: legal website design company.
THE DOUBLE DIRTY DOZEN PREDATORY MORTGAGE LENDING PRACTICES
By Patricia Sturdevant and William J. Brennan, Jr.
Predatory and abusive practices by mortgage lenders and brokers, which impose excessive and unreasonable charges on homeowners, are pervasive and cause serious harm. The American dream of homeownership is jeopardized or denied by these pernicious practices. In our view, the most egregious abusive predatory lending practice is equity skimming or equity theft, by which lenders purposely acquire large portions of equity in homes through unreasonably high fees and charges and/ or otherwise structuring the loan so that the homeowner will be unable to repay, and will default and be subjected to foreclosure. Equity skimming involves vulnerable, elderly homeowners being subjected to the loss of homes or the equity in them through home improvement fraud, flipping, exorbitant fees to brokers, excessive charges for credit insurance premiums, transactions requiring payments which exceed what the borrower could reasonably afford to repay from limited governmental benefits, and other abusive lending practices The typical victims are elderly, unsophisticated people, particularly women, often of racial minority groups, who have substantial equity in their homes or homeowners whose dwellings are in need of repair, including victims of natural disasters such as floods or earthquakes. These cases are very appropriate for referral to private lawyers or attorneys in unrestricted programs because they involve egregious misconduct, and can be successfully litigated, obtaining good results for clients as well as attorney fee awards. We have identified the following indicia of predatory practices, which Margot Saunders described as the double dirty dozen, many of which are merely means to the end of equity theft. These practices are listed and described below, categorized by abuses associated with the origination of the loan, servicing of the loan, and collection of the loan. I. ORIGINATION OF THE LOAN. Solicitations. Predatory mortgage lenders target lower income and minority neighborhoods for extensive marketing. They advertise through television commercials, direct mail, highly visible signs in neighborhoods, telephone and door to door solicitations, and flyers stuffed in mail boxes. Many companies deceptively tailor their solicitations to resemble social security or other government checks to prompt homeowners to open the envelopes and otherwise deceive them about the transaction. Home Improvement Scams. Predatory mortgage lenders use local home improvement companies essentially as mortgage brokers to solicit loan business. These companies target homeowners and solicit them to execute home improvement contracts. Sometimes they falsely claim that government subsidies are available to pay for the cost of the home improvements. The company may originate a mortgage loan to finance the home improvements and sell the mortgage to a predatory mortgage lender, or steer the homeowner directly to the predatory lender for financing of the home improvements. The homeowners are often grossly overcharged for the work, which the contractors often perform shoddily and fail to complete as agreed. They sometimes damage the homeowner’s personal property in the process. In other cases, the contractor fails to obtain required permits, thereby making sure that the work is not inspected for compliance with local codes, and that shoddy work need not be corrected. Mortgage Broker’s Fees and Kickbacks. Predatory mortgage lenders also originate loans through local mortgage brokers who act as "bird dogs", or finders for the lenders. These brokers represent to the homeowners that they are working for them to help them obtain the best available loan, and the homeowners usually pay a broker’s fee. In fact, the brokers are working for predatory lenders, who pay brokers kickbacks to refer borrowers for loans at higher interest rates than those for which the borrower would otherwise qualify. On loan closing documents, the industry uses euphemisms to describe these referral fees: yield spread premiums and service release fees. Also, unbeknownst to the borrower, her interest rate is increased to cover the fee. The industry calls this bonus upselling or par-plus premium pricing; we call it paying unlawful kickbacks. Steering to High Rate Lenders. Some banks and mortgage companies steer customers to high rate lenders, even though those customers may have good credit and would be eligible for a conventional loan from that bank or lender. Sometimes the customer is turned or steered away even before completing a loan application. In other cases, the loan application is wrongfully denied and the customer is referred to a high rate lender, who is often an affiliate of the bank or mortgage company. Kickbacks or referral fees are paid as an incentive to steer the customer to a higher rate loan. Making Unaffordable Loans. Some predatory mortgage lenders purposely structure loans with monthly payments that they know the borrower cannot afford so that when the homeowner is led inexorably to the point of default, she will return to the lender to refinance the loan, and the lender can impose additional points and fees. Other predatory mortgage lenders, called hard lenders, intentionally structure the loans with payments the homeowner cannot afford in order to lead to foreclosure so that they may acquire the house and the valuable equity in the house at a foreclosure sale. Falsified or Fraudulent Applications. Some lenders knowingly make loans to unsophisticated homeowners who do not have sufficient income to repay the loan. Often, such lenders wish to sell the loan to an investor, which requires that the borrower appear to have sufficient income to repay the loan. Such lenders have the borrowers sign a blank application form, and then insert false information on the form, claiming that the borrower has employment or income that she does not, so it appears that she can make the payments. Adding Co-signers. This is done to create the false impression that the borrower is able to pay off the loan, even though the lender is well aware that the co-signer has no intention of contributing to the payments. Often, the lender requires the homeowner to transfer half ownership of the house to the co-signer. The homeowner thereby loses half the ownership of the home and is saddled with a loan she cannot afford to repay. Incapacitated Homeowners. Some predatory lenders make loans to homeowners who are clearly mentally incapacitated. They take advantage of the fact that the homeowner does not understand the nature of the transaction or the papers that she signs. Because of her incapacity, the homeowner does not understand that she has a mortgage loan, does not make the payments, and is subject to foreclosure and subsequent eviction. Forgeries. Some predatory lenders forge loan documents. In an ABC Prime Time Live news segment that aired on April 23, 1997, a former employee of a high cost mortgage lender reported that each of the lender’s branch offices had a "designated forger" whose job it was to forge documents. In such cases, the unwary homeowners are stuck with loans they know nothing about. High Annual Interest Rates. Because the purpose of engaging in predatory lending is to reap the benefit of high profits, these lenders always charge extremely high interest rates. This drastically increases the cost of borrowing for homeowners, even though the lenders’ risk is minimal or non-existent. Predatory lenders may charge rates of 19 to 25%, or 2 ½ times the rates of 7 to 7.5 percent being charged for conventional mortgages. High Points. Legitimate lenders charge points to orrowers who wish to buy down the interest rate on the loan. Predatory lenders charge high points, but offer no corresponding reduction in the interest rate. These points are imposed through prepaid finance charges (or points or origination fees), which are usually 5 to 10%, but may be as much as 20%, of the loan. The borrower does not pay these points with cash at closing. Rather, the points are always financed as part of the loan. This increases the amount borrowed, which produces more actual interest to the lender. Balloon payments. Predatory lenders frequently structure loans so that the borrower’s payments are applied primarily to interest, and at the end of the loan period, the borrower still owes most or all of the principal amount borrowed. The last payment balloons to an amount often equal to 85% or so of the principal. The homeowner cannot afford to pay the balloon payment, and either loses the home through foreclosure or is forced to refinance with the same or another lender for an additional term at additional cost. Negative Amortization. This involves structuring the loan so that interest is not amortized over the term. Instead, the monthly payment is insufficient to pay off accrued interest and the principal balance therefore increases each month. At the end of the loan term, the borrower may owe more than the amount originally borrowed. With negative amortization, there will almost always be a balloon payment at the end of the loan. Credit Insurance – Insurance Packing. Predatory mortgage lenders market and sell credit insurance as part of their loans, often without the knowledge or consent of the borrower. Typical insurance products sold in connection with loans include credit life, credit disability, credit property, and involuntary unemployment insurance. Lenders frequently charge exorbitant premiums, which are not justified based on the extremely low actual loss payouts. Frequently, credit insurance is sold by an insurance company which is either a subsidiary of the lender or which pays the lender substantial commissions. Another way of charging excessive premiums is to over-insure borrowers by providing insurance for the total indebtedness, including principal and interest, rather than merely the principal amount of the loan. In short, credit insurance becomes a profit center for the lender and provides little or no benefit to the borrower. Padding Closing Costs. In this scheme, certain costs are increased above their market value as a way of charging higher interest rates. Examples include charging document preparation fees of $350 or credit report fees of $150, which are many times the actual cost. Inflated Appraisal Costs. In most mortgage loan transactions, the lender requires an appraisal. Most appraisals include a detailed report of the condition of the house, both interior and exterior, and prices of comparable homes in the area. Others are "drive-by" appraisals, done by someone simply looking at the outside of the house. The former naturally costs more than the latter. However, in some cases, borrowers are charged for a detailed appraisal, when only a drive-by appraisal was done. Padded Recording Fees. Mortgage transactions usually require that documents be recorded at the local courthouse, and state or local laws set the fees for recording the documents. Predatory mortgage lenders often charge the borrowers a recording fee in excess of the actual amount established by law. Bogus Broker Fees. In some cases, predatory lenders charge borrowers broker fees when the borrower never met or knew of the broker. This is another way such lenders increase the cost of the loan for their own benefit. Unbundling. This is another way of padding costs by breaking out and itemizing charges that are duplicative or should be included under other charges. An example is charging a loan origination fee, which should cover all costs of initiating the loan, but then imposing separate, additional charges for underwriting and loan preparation. Excessive Prepayment Penalties. Predatory lenders often impose exorbitant prepayment penalties. This is done in an effort to lock the borrower into the predatory loan for as long as possible by making it difficult for her to refinance the mortgage or sell the home. This practice provides back end interest for the lender if the borrower does prepay the loan. Mandatory Arbitration Clauses. By inserting pre-dispute, mandatory, binding arbitration clauses in contractual documents, some lenders attempt to obtain an unfair advantage by relegating their borrowers to a forum perceived to be more favorable to the lender. This perception exists because discovery is not a matter of right, but is within the discretion of the arbitrator, the proceedings are private, arbitrators need not give reasons for their decisions or follow the law, a decision in any one case will have no precedential value, judicial review is extremely limited, and injunctive relief and punitive damages are not available. Flipping. Flipping involves successive, repeated refinancing of the loan by rolling the balance of the existing loan into a new loan instead of making a separate, new loan for the new amount. Flipping always results in higher costs to the borrower. Because the existing balance of one loan is rolled into a new loan, the term of repayment is repeatedly extended through each refinancing. This results in more interest being paid than if the borrower had been allowed to pay off each loan separately. A powerful example of the exorbitant costs of flipping is the case of Bennett Roberts, who had eleven loans from a high cost mortgage lender within a period of four years. See Wall Street Journal, April 23,1997. Mr. Roberts was charged in excess of $29,000 in fees and charges, including 10 points on every financing, plus interest, to borrow less than $26,000. Spurious Open End Mortgages. In order to avoid making required disclosures to borrowers under the Truth in Lending Act, many lenders are making "open-end" mortgage loans. Although the loans are called "open end" loans, in fact they are not. Instead of creating a line of credit from which the borrower may withdraw cash when needed, the lender advances the full amount of the loan to the borrower at the outset. The loans are non-amortizing, meaning that the payments are interest only so that the balance is never reduced. Paying Off Low Interest Mortgages. A predatory lender usually insists that its mortgage loan pay off the borrower’s existing low cost, purchase money mortgage. The lender is able to increase the amount of the new mortgage loan by paying off the current mortgage and the homeowner is stuck with a high interest rate mortgage and a principal amount that is much higher than necessary. Shifting Unsecured Debt Into Mortgages. Mortgage lenders badger homeowners with advertisements and solicitations that tout the "benefits" of consolidating bills into a mortgage loan. The lender fails to inform the borrower that consolidating unsecured debt into a mortgage loan secured by the home is a bad idea. Paying off the unsecured debt, which necessarily increases closing costs, since they are calculated on a percentage basis, increases the loan balance. Moreover, this practice increases the monthly payments, and exacerbates the risk that the homeowner will lose the home. Making Loans In Excess of 100% Loan to Value (LTV). Some lenders are making loans to homeowners in amounts that exceed the fair market value of the home. This makes it very difficult for the homeowner to refinance the mortgage or to sell the house to pay off the loan, thereby locking the homeowner into a high cost loan. Normally, if a homeowner goes into default and the lender forecloses on a loan, the foreclosure sale generates enough money to pay off the mortgage loan and the borrower is not subject to a deficiency claim. However, where the loan is 125% LTV, a foreclosure sale may not generate enough to pay off the loan, and the lender may pursue the borrower for the deficiency. II. SERVICING OF THE LOAN. Force Placed Insurance. Lenders require homeowners to carry homeowner’s insurance, with the lender named as a loss payee. Mortgage loan documents allow the lender to force place insurance when the homeowner fails to maintain the insurance, and to add the premium to the loan balance. Some predatory lenders force place insurance even when the homeowner has insurance and has provided proof of insurance to the lender. The premiums for the force placed insurance are frequently exorbitant. Often the insurance carrier is a company affiliated with the lender, and the force placed insurance is padded because it covers the lender for risks or losses in excess of what the lender may require under the terms of the loan. Daily Interest When Payments Are Made After Due Date. Most mortgage loans have grace periods, during which a borrower may make the monthly payment after the due date without incurring a late charge. The late charge often is assessed as a small percentage of the late payment. However, many lenders also charge daily interest based on the outstanding principal balance. While it may be proper for a lender to charge daily interest when the loan so provides, it is deceptive for a lender to charge a late fee as well as daily interest when a borrower pays before the grace period expires. III. COLLECTION OF THE LOAN. Abusive Collection Practices. In order to maximize profits, predatory lenders either set the monthly payments at a level the borrower can barely sustain or structure the loan to trigger a default and a subsequent refinancing. Adding insult to injury, the lenders use aggressive collection tactics to ensure that the stream of income flows uninterrupted. The collection departments call homeowners at all hours of the day and night, send late payment notices (in some cases, even when the lender has received timely payment or even before the grace period expires), send telegrams, and even send agents to hound homeowners, who are often elderly widows, into making payments. These abusive collection tactics often involve threats to evict the homeowners immediately, even though lenders know they must first foreclose and follow eviction procedures. The resulting impact on homeowners, especially elderly homeowners, can be devastating. High Prepayment Penalties. See description above. When a borrower is in default and must pay the full balance due, predatory lenders will often include the prepayment penalty in the calculation of the balance due. Flipping. See description above. When a borrower is in default, predatory mortgage lenders often use this as an opportunity to flip the homeowner into a new loan, thereby incurring additional high costs and fees. Foreclosure Abuses. These include persuading borrowers to sign deeds in lieu of foreclosure, giving up all rights to protections afforded under the foreclosure statute, sales of the home at below market value, sales without the opportunity to cure the default, and inadequate notice which is either not sent or backdated. We have even seen cases of "whispered foreclosures", in which persons conducting foreclosure sales on courthouse steps have ducked around the corner to avoid bidders so that the lender was assured he would not be out-bid. Finally, foreclosure deeds have been filed in courthouse deed records without a public foreclosure sale.
SAMPLE NEW YORK Health Care Proxy (Health Care Surrogate [Fla.]) Living Will NOTFOR USE BY EMERGENCY PERSONAL IN ABSENCE OF DNR.
I, being over the age of eighteen (18) and of sound mind, willfully and voluntarily nominate, constitute and appoint as regards this Health Care Proxy(Health Care Surrogate)and Living Will, the following named persons: Person 1: Phone: Person 2: Phone: This appointment also include day to day medical decisions. When needed these people are to be consulted first, and in the order set forth, but in the event they are unavailable, unable to act or to continue to act, or disagree decisions my doctor shall take actions consistent with the wishes I have herein set forth herein, if and as applicable. 1. HEALTH CARE PROXY (Surrogate) a) The persons named herein shall act as my health care agent(s) to make health care decisions for me, except to the extent I state otherwise, b) This health care proxy shall take effect in the event I become unable to make my own health care decisions. c) I direct my agent to make health care decisions in accordance with my wishes and instructions as stated herein or as otherwise known to him or her. I also direct my agent to abide by any limitations on his or her authority as stated herein or as otherwise known to him or her (which include the discretion granted in footnote 2 below1, d) I understand that, unless I revoke it, this proxy will remain in effect indefinitely or until the date or occurrence of the condition I have stated below. This includes all medical decisions, and, without limitation, Artificial Respiration, artificial nutrition and hydration, CPR, antipsychotic medication, electric shock, antibiotics, psychosurgery, dialysis, transplantation, blood transfusions, abortion, and sterilization. Further my directions also include the following: 2. FURTHER PARTICULARS OF MY INTENT - MY LIVING WILL: A) THE PROVISIONS OF MY LIVING WILL ONLY BECOME EFFECTIVE IN THE FOLLOWING CIRCUMSTANCES: 1) If at any time I should have an incurable injury, disease or illness resulting in a terminal condition that will cause my death within a relatively short time, or 2) I am permanently unconscious, or 3) I have brain damage or disease that makes me unable to recognize people or speak and there is no hope that my condition will improve, or 4) in the event of extreme old age and extraordinary and intractable pain and/or suffering and when, after careful evaluation and consideration consistent with the practice of compassionate medicine, there is no treatment (or series of treatments) that is not surely contra-indicated given my circumstances which can reasonably be expected to relieve and/orremedy my condition and/or suffering so that I may return to reasonable health or be able to enjoy the presence of people around me, and 5) provided footnote #1 is not applicable, then I direct B) ARTIFICIAL LIFE SUPPORT - CONDITIONAL: Only In Circumstances 1-5: 1) I direct that artificial life support treatment be withheld or withdrawn where not necessary for my comfort or to alleviate pain. I request that all available medication for the relief of pain and my comfort be administered even if I am rendered unconscious and my life is thereby shortened. 2) In the absence of my ability to give instructions regarding the use of artificial life sustaining procedures, it is my intention that this directive shall be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences of such refusal. Medical treatments shall be broadly defined and include, but not be limited, to Respiration, anti-psychotic medication, antibiotics, psychosurgery, dialysis, transplantation, blood transfusions. C) NUTRITION AND HYDRATION - CONDITIONAL: Only In Circumstances 1-5: 1) I direct that such artificial life sustaining procedures to be withheld or withdrawn shall include procedures to accomplish the purposes of nutrition and hydration. I recognize that I shall surely die if nutrition and/or hydration is withheld and I request that all available medication for the relief of pain and my comfort be administered even if I am rendered unconscious and my life is thereby shortened. D) CARDIO-PULMONARY RESUSCITATION- CONDITIONAL: Only In Circumstances 1-5: 1) Although I realize that I may legally have to periodically renew this directive, in the event cardio-pulmonary resuscitation may be necessary to sustain my life or to revive my life, this written instrument entrusts the communication that I decline same and I direct my designee to proceed accordingly. When and if end of life directives are in effect I do not want resuscitation. 3) GENERAL PROVISIONS 1) I understand the full impact of this Living Will/ Health Care Proxy and have undertaken due medical, philosophical, moral and religious consultation in regards thereto. 2) Nothing pertaining to this document or the exercise of any discretion or powers under it shall in any way effect or invalidate my Will or effect or invalidate the usual order of or right to descent and distribution and I, in all ways and manners, agree to indemnify and hold harmless the persons designated hereunder for the exercise of any discretion in regards to the discharge of the duties contemplated hereby, including such descent and distribution and I direct that person's right to share in my estate shall not be effected by any matter arising hereunder. 3) If any sentence, clause or paragraph of this document shall in substance or intent be declared by a Court of competent jurisdiction to be invalid and not binding, or contrary to public policy, the balance of such sentence, clause or paragraph, and if possible such sentence, clause or paragraph as it may be legally construed, shall together with the balance of this document have full force and effect. 4) The declarations and provisions made herein and powers of my Health Care Proxy shall not be effected by my subsequent disability or incompetence. 5) To induce any third party to act hereunder, I hereby agree that any third party receiving a duly executed copy or facsimile of this instrument may act hereunder, and that revocation or termination hereof shall be ineffective as to such third party unless and until actual notice or knowledge of such revocation or termination shall have been received by such third party, and I for myself and for my heirs, executors, legal representatives and assigns, hereby agree to indemnify and hold harmless any such third party from and against any and all claims that may arise against any such third party by reason of such third party having relied on the provisions of this instrument. 6)If it is feasible,Iwishtodieathome and not in the hospital and I do not want to be transferred to a hospital unless my condition makes it impractical for me to be treated at home, as may be the case during severe hemorrhage, or extreme restlessness, convulsions or unmanageable pain, unavailability of people to well assist me; in which case, then as soon as possible, I want to be sent back home. 7) I recognize that there maybemanyinstancesbesidesthosedescribedaboveinwhichthe compassionatepracticeofgoodmedicine dictatesthatlife-sustainingtreatmentbe withheld or withdrawn and I DO NOT INTEND THAT THIS INSTRUMENT BE CONSTRUED AS AN EXCLUSIVE ENUMERATION OF THE CIRCUMSTANCES IN WHICH I HAVE DECIDED TO FOREGO LIFE SUSTAINING TREATMENT. To the contrary, it is my express direction that whenever the compassionate practice of good medicine dictates that life-sustaining treatment should not be administered, such treatment shall be withheld or withdrawn from me. I similarly direct that in the event I am able to personally communicate a decision to forego life-sustaining treatment in other circumstances than those described herein, such instructions shall be followed to the same extent as if originally included in this declaration. IN WITNESS WHEREOF, I sign and affix my seal this day of __________________, 201_.
___________________________________(L.S.) Subscription of Witnesses: We, whose names are hereto subscribed, DO CERTIFY UNDER PENALTIES OF LAW, that on the day of_______________, 2012, the maker above named of this Living Will, the maker above named, an adult we believe to be of sound mind, freely and voluntarily: subscribed his/her name to this instrument in our presence (direct sight) and in the presence of each of us, and at the same time, in our presence and hearing, acknowledged and declared the same to be a Living Will/Resuscitation Directive/Designation of Agent/Health Care Proxy, and requested us and requested each of us, to sign our names thereto as witnesses to the execution thereof which we hereby do in the presence of the maker and of each other on the day of the date of this said Living Will/Resuscitation Directive/Designation of Agent/Health Care Proxy, and we write opposite our names our respective places of residence. We affirm that each of us is a) eighteen (18) years or more of age, b) are neither married to the maker nor blood relatives of the maker, c) are not the attending physician or employee of the attending physician or of a health facility in which the maker is a patient, d) have no claim against any portion of the maker's estate and e) are not directly financially responsible for the maker's medical care. Witness: __________residing at Witness:________residing at__________ LEGAL ADVERTISING AND DISCLAIMER STATEMENT: Content is designed to provide general information for reference only and is not intended to offer or constitute legal advice. No lawyer-client relationship is formed. You need to know that any tax advice is not intended, and cannot be used, in order to avoid federal tax penalties or promote or recommend or market any tax advice. Finally, please understand that accepting or returning phone calls and emails does not create an attorney client relationship unless you and I expressly confirm that I am your attorney. Only clients may rely on my advice.