Wednesday, July 2, 2014
Y Just Chillin'?
We are sure all of our loyal followers (however many there may be) have been anxiously awaiting our next installment of the Bankrupt-C Y-Blawg. How can anyone go through a month without detailed information on foreclosures or bankruptcy or the practice of bankruptcy law in Vermont?!?! Truly frightening, we know.
Well, as much as we hate to disappoint, this will not be a blawg on foreclosure, or student loans, or the different chapters of bankruptcy...stay tuned...it's all coming soon! Maybe it's the large cases we were working on lately, maybe it's the summer schedule or many of life's hurdles. We won't bore you with excuses. Today, however, it's just too dang hot. So here is today's installment, one of OEB's mascots, Noodle the Labradoodle, enjoying a bit of that fine OEBlaw air conditioning, just chillin'.
We hope everyone has a fun, relaxing, safe and happy Fourth of July weekend. We should all take a lesson from Noodle and enjoy some time just chillin'.!
(although for now we are all diligently working away surrounded by a/c, so give us a call...someone is just about always here!)
Friday, May 2, 2014
Why Foreclosure Mediation?
Why
Foreclosure Mediation? The Vermont foreclosure process is lengthy and complicated, so there is
no way to substantively address the process in sufficient detail in one blawg
entry. But you can’t get anywhere in
life without trying, so here goes…
Despite all the press out there about robo-signings, bad affidavits, lost
notes and gross misdeeds by banks, the fact remains that the majority of
foreclosures are initiated after legal cause and standing has been
painstakingly researched by the lender’s counsel. Vermont has all but taken care of many of
these problems by requiring lenders to jump through hoops in order to even file
a foreclosure case. While it is not
always the case, and seeking counsel is always recommended, in most cases, the
borrower will find that the lender has their substantive legal ducks in a
row. Now whether the actual accounting
is in order and whether a larger servicer has lost or misapplied checks is a
different issue all together, but that comes later.
In order to actually foreclose in Vermont, in most cases the lender has
to: file the proper paperwork, notify the borrower of their rights, including
the right to mediation, get a judgment from the Court if there is no response
with an accounting, give an occupying homeowner 6 months to redeem (ie pay off the debt in full), and
thereafter set an auction for sale. The
process, then, barring no complications, takes no less than 8-10 months. If a borrower answers, challenges the
default, requests mediation or otherwise participates or objects, the process
can be even longer. When considering the process and that the end best result
for the lender is likely merely ownership of the property, it is safe to say
that in the vast majority of the cases, the lender doesn’t actually want to
complete a foreclosure—the lender just wants to be paid. While this is generally true for all lenders,
it is especially true for the large national mortgage servicers, as explained
below.
As a result of the bailout, many mortgage servicers are required to
comply with various home retention and modification programs, the most popular
being the HAMP, Home Affordable Mortgage Program. Under these programs, servicers are incentivized
to offer modifications to borrowers that reduce their payments and make the
home affordable. In order to do so, many
of the programs lower the interest rate considerably, stretch out the term and
defer or even eliminate principal, depending upon the borrower’s income and
home value, among other things. The
standards for each program are extremely rigid.
Only with strict compliance to the documentation guidelines can a
borrower get a modification offer. While
some seem ridiculous, (“what do you mean you need the blank ‘balance your
checkbook’ page 3 of my bank statement?”), servicers cannot deviate from the
fraud prevention measures and auditing standards. No modification of any kind will be offered
without the lender receiving a complete documentation package that they can
send to underwriting.
Enter mediation. The Vermont
mediation process provides a forum for this documentation exchange and review
to be policed. The mediation program was created in response to horror stories
about borrowers being denied or not even reviewed for HAMP and other government
programs based upon an arguable failure to provide documents. The borrowers insisted that all necessary
items were sent; the lender cited to missing documentation. While I have no doubt that the larger lenders
and servicers have lost or misplaced their fair share of documentation,
especially in the early days of the programs, I also have no doubt that
borrowers have failed to complete the paperwork based upon poor communication,
assumptions regarding the requirements and mistrust. Surely it would be logical to assume that the
page 3 described above would not be needed, but that assumption would be wrong!
The mediation program allows effective communication to enter the process
where the exchanges between the parties and the review under documented
programs can be policed by the mediator and ultimately by the Court. Borrowers do not have an absolute right to
modify their obligations under the note, so modification is not always the
outcome. But when the loan is modified,
the case is ultimately dismissed.
If
modification is not an option, the process at least insures that the parties
are communicating and that all foreclosure alternatives have been
considered. Loan balances and payment
application can be reviewed, as well as the specific reasons for a denial of
modification. Borrowers can ask
questions about the status of the foreclosure case and sale date, which may
result in them seeking counsel to explore other options, such as a Chapter 13
bankruptcy. Since the onset of the mediation
program, a good percentage of borrowers have successfully modified their
mortgages and have been able to keep their homes, which is a win for both
sides. And isn’t that what mediation is
all about—reaching a solution where everyone gets something they want?
Thursday, April 10, 2014
Y-Vermont, revisited.
Spotted at OEB law-- one modern lawyer in action! Don Hayes is sporting the casual look,
complete with Khakis, Keenes, and of course one chillin’ bundle of joy. We here at OEB law go with the flow, because
that’s the Vermont way of doing things.
About 10 years ago, I, too, sported the office bassinet having taken,
oh, 2.5 weeks off throughout my whole cesarean ordeal. We were in the midst of a rather large case
and I did not have the luxury of taking more time. Everybody here was accommodating and
understanding as always-- as I dove right back in, baby in tow.
Some days, we take the 11:59:59pm electronic filing deadline
literally. We channel our inner New
Yorkers and stay until the wee hours to meet that due date. On any given day we may have hours of 6am-4pm
for one, while they are 9am to 8pm for others.
Soccer tournament? Tennis? No
problem! Just make it up another
time. Ray Obuchowski can be spotted here
on most weekends because that is when it is quiet. We are flexible with our clients’ schedules
as well. If anyone understands that life
happens, it is a bankruptcy lawyer.
Hearing all of the humbling stories from clients teaches us to enjoy every
minute of life, while simultaneously diving into the law practice with both
feet (sometimes 4…see photo #2).
Like many other Vermont law offices, you may come to OEB law
to find a dog, or a baby, or an attorney wearing an old T-shirt, but no matter
what else you see, you are guaranteed to find live humans who are caring,
hard-working professionals. Unlike the
bankruptcy debtor in the recent US Supreme Court case, Law vs. Siegel, who fabricated a mortgage to create the illusion of
less equity in his home, our Vermont clients are also honest, hard-working
people looking for a fresh start or solution to their unfortunate
situation. There is no place I’d rather
practice law. We strive to be
accessible, knowledgeable and practical, because that is the Vermont way!
Stay tuned
for our next y-blawg, commencing our substantive law series – First up?
Foreclosure!Sunday, March 30, 2014
Y-Business bankruptcy? The area of business bankruptcy is extremely
specialized. The bankruptcy code is so complex that a business bankruptcy filing is not to be undertaken lightly. Under the right circumstances, a business can completely turn around, being limited only by the creativity of the people involved. Even if a bankruptcy filing isn’t the right course of action for a particular business, the same bankruptcy concepts and knowledge can be used to assist a troubled business in moving forward in a positive direction.
Why do I enjoy assisting businesses? From a bankruptcy lawyer’s perspective, one of the best parts of assisting businesses is working with the skilled, smart and dynamic personalities of the at-times successful ventures. I have met so many amazing entrepreneurs over the years. Another positive aspect is learning about various types of thriving businesses where formerly I had no familiarity. Where else can mere lawyers get to deal with asbestos mass torts, railroad switchyards, construction businesses, truckers, loggers and manufacturers who deal with almost every raw material imaginable? It is important to become somewhat familiar with the processes so that you are better able to understand the options for the business.
While consumer bankruptcy practice is extremely rewarding, especially in light of the true relief that we can assist individuals in achieving, business bankruptcy adds another layer of intellectual stimulation you can’t always get from the more routine consumer cases. Even after countless years in the field of bankruptcy, a business case can involve a section of the bankruptcy code that we’ve either never encountered or never really utilized fully. During those more complex cases, we small-town Vermont lawyers get to interact with and work with some of the most skilled bankruptcy legal minds in the country. With all that creative thinking, the possibilities are endless!
Why do I enjoy assisting businesses? From a bankruptcy lawyer’s perspective, one of the best parts of assisting businesses is working with the skilled, smart and dynamic personalities of the at-times successful ventures. I have met so many amazing entrepreneurs over the years. Another positive aspect is learning about various types of thriving businesses where formerly I had no familiarity. Where else can mere lawyers get to deal with asbestos mass torts, railroad switchyards, construction businesses, truckers, loggers and manufacturers who deal with almost every raw material imaginable? It is important to become somewhat familiar with the processes so that you are better able to understand the options for the business.
While consumer bankruptcy practice is extremely rewarding, especially in light of the true relief that we can assist individuals in achieving, business bankruptcy adds another layer of intellectual stimulation you can’t always get from the more routine consumer cases. Even after countless years in the field of bankruptcy, a business case can involve a section of the bankruptcy code that we’ve either never encountered or never really utilized fully. During those more complex cases, we small-town Vermont lawyers get to interact with and work with some of the most skilled bankruptcy legal minds in the country. With all that creative thinking, the possibilities are endless!
Wednesday, February 19, 2014
Y- Consumer Bankruptcy Law?
Y-Consumer bankruptcy law? Why do I enjoy practicing in the field of
consumer bankruptcy law? This is an easy
one. Did you ever wish you had a magic
wand you could use to make problems simply vanish? Doesn’t everyone? Bankruptcy is a unique area of law where
under the right circumstances and when the case is prepared correctly, relief
magically appears! Obviously it isn’t
magic, and the bankruptcy laws are extremely complex. But in what other area of the law can you fix
problems relatively quickly and inexpensively and provide a complete fresh
start? Bankruptcy erases bad luck and
bad choices, allowing the client to start over and build anew.
Other practitioners assume bankruptcy is
depressing because clients are struggling, having reached a complete low-point
in their lives. But in reality, the
practice has the complete opposite effect.
Generally, clients are truly happy with the result and can move forward
with a huge weight lifted off of their shoulders. Sure in other areas of law, winning a long
legal battle can have the same effect, but nothing is as quick and efficient as
a simple Chapter 7 bankruptcy case in making problems disappear.
In our
practice, we are constantly reminded that bad things happen to good people,
which of course is humbling and somewhat depressing. But by recognizing this, we have the ability
to objectively distill the issues in each case, without judgment, and figure
out the best way for the client to move forward in a positive direction. The vast majority of clients say they feel that
the weight has been lifted even just after the initial consultation.
I would implore anyone who is struggling to
stay afloat to consult with a bankruptcy lawyer early enough so that all
options can be explored. Bankruptcy is
undoubtedly a last resort and is not always the best option. We will be the first to suggest alternatives
if they truly apply. Our job is to
listen and find out the best options for each client. And just maybe, the client might be a perfect
candidate for that magic wand.
Monday, February 10, 2014
Y-Blawg?
With all the blogs out there, why blog?
Sure, blogs are a way to start a conversation, share knowledge and
experiences and familiarize the reader with your subject matter. The most important aspect, though, is the
blog’s ability to bring the reader closer to you. Law by its nature is very impersonal and
almost always seems to find a way to de-humanize a process. When looking for a bankruptcy lawyer,
certainly knowledge and experience are foremost. But then what? A client wants
to work with someone that they are comfortable with. Someone a client can feel like they ‘know’
even if they’ve never been over to the lawyer’s house for tea. So blog #1 is about me!
I’m not going to repeat my bona fides
here. You can read about my federal
clerkship, years in practice, teaching experience and my work with the Vermont
Bar Association on our website. Not to
toot my own horn, but when it comes to bankruptcy law, I know my stuff. I’d have to!
I chose to stay in Vermont after my clerkship, despite the ridiculously
low pay scale, because I met my husband here in 1992. We were in love with the State almost as much
as with each other. Where else can you
still leave doors unlocked and really know most of the people you deal with on
a regular basis? With all its beauty and
amazing people, there is nowhere else I’d rather be. I live very close to the office with my
husband, son and our shaggy labradoodle.
We love to play tennis, to hike and to just be outdoors. My husband, being from Ireland, is obsessed
with soccer, as is our son, so much of our spare time of late is trekking to
and from games and practices.
What I hope you will notice when you come in
for a consultation is that I truly listen.
Because of the nature of my practice, no one wants to come see me. I realize that. Everyone’s story does have some element of
similarity, whether it be bad luck, bad choices, bad health, bad relationships
– something bad. But by recognizing that no one wants to see me, I also
recognize that everyone wants to tell their story as to how they got to where
they are. And I want to listen, because
no two stories are exactly alike. You can’t fully gauge the best options for
someone without knowing where they came from and where they want to go. We provide a sympathetic ear combined with
the knowledge and experience necessary to move forward in a positive
direction.
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