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BY THOMAS J. SCRIBNER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Wills and Trusts take care of your stuff after you die. But what about between now and then? What about when you are unable to make the decisions for yourself? This is where Powers of Attorney come in. They give a third party rights to act in your name in certain circumstances. There are two general areas where Powers of Attorney may be needed:

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BY JACOB R. POWELL

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

The Utah legislature has enacted a standard minimum parent-time schedule in Utah Code s 30-3-35. There is a presumption of law that this schedule is in the “best interests of the children” unless the parties agree on another schedule. The standard parent-time schedule is built around the school year and its effect is to keep the children with the custodial parent during school, but divide up weekends, holidays, and summer-time nearly equally, as well as awarding some mid-week evening time. The schedule is as follows:

  • Weekends: The parents each get every other weekend.
  • Mid-Week Evenings: The non-custodial parent gets one mid-week evening for 3 hours.
  • Holidays: The non-custodial parent gets the holidays on List #1 (below) in odd-numbered years and on List #2 in even-numbered years, and the custodial parent gets the reverse.

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BY LORIE FOWLKE

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

You have decided you need a divorce but have no idea how to begin or what you should do. Unlike most litigation, this lawsuit involves your spouse, someone with whom you have lived and been intimate for a significant period of time, someone with whom you may have children. This is a very different kind of lawsuit and needs to be approached with sensitivity. Read more…

BY MICHAEL S. GLASSFORD

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

No one ever expects to be charged with driving under the influence of alcohol or drugs (DUI). For most people, the arrest is a shattering experience. There are the flashing lights, and the officer at the car door. First come the questions and the field sobriety tests, then the handcuffs and the trip to the station for booking. These experiences are followed by more questions and warnings and finally by being asked to blow on an intoxilizer machine, or having your blood drawn. The final humiliations are either booking into jail to sleep it off and wait for court, or a call to friend or loved one to post bail. None of these are pleasant experiences. Read more…

BY MICHAEL S. GLASSFORD

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

This is the age of technology. The digital world allows us to be the stars of our own shows and social media is our broadcaster. We are constantly posting to Facebook, YouTube, Twitter or e-mailing and sending texts. To make matters worse, social media tells us that to stay relevant we must constantly post new content. Whether that is true or not, we have bought into it, big time.

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BY JACOB R. POWELL

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Debt collection used to be much simpler for creditors than it is today. Historically, failure to pay debt was punishable by imprisonment, the stocks, and in some areas even death. Debtor’s prisons continued to exist until some decades after the American revolution. Some creditors, in their fury over non-payment, wish these punishments were still legal, especially if the debtor is particularly dishonest or obnoxious. But the bottom line is, the laws today are more humane for debtors, so creditors need to be more educated in order to understand their rights.When a debtor fails to pay, the ultimate goal of a creditor is to get money (or property that can be sold for money) from the Debtor. There are many possible strategies to accomplish this, but at the root of all these strategies is understanding what the law will and will not do to allow a creditor to get the debtor’s property by force. Read more…

BY JACOB R. POWELL

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Every lawsuit has costs associated with it. In most cases, there may be no way for a creditor to completely determine whether they are “throwing good money after bad money” in attempting to collect. In any event, understanding the costs that are incurred at each stage of litigation may help a creditor and debtor make intelligent decisions about how much time and money they wish to spend at each stage of litigation, and will help them have meaningful settlement discussions.

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BY JACOB R. POWELL

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Determining child custody used to be very simple. If you hired a lawyer in the early 1800s for a child custody dispute, the answer would have been easy: Children are property, and Dad decides what to do with them. If you hired a lawyer in the 1940s for the same thing, the answer would still be easy, but opposite: Mom gets the kids and Dad pays the bills. The answers are not as easy today, and as a result, lawyers have a lot more work to do in a custody case than they once did.

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BY LORIE D. FOWLKE

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

How many times have I heard this story… “My spouse defrauded me in the divorce but I believed everything he/she told me and “signed the papers.” Now, two years later, I have found out about all the lies but it is too late.” Not necessarily.

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BY THOMAS J. SCRIBNER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

 

As I have been in contact with bank attorneys recently regarding a host of situations surrounding the foreclosure decisions a bank can make when a loan goes delinquent, I want to carefully review those options from a bank’s perspective. Remember when dealing with a bank, who is in the business of working with money, it will always do what is in its best interest; what makes it the most money or least loss. This may sound obvious, but most debtors think that the bank will cut them some slack just out of principal or because the borrower has been a great customer for many years. Not so, unless it is in the bank’s own best interest to do so. That is why a delinquent loan (after some attempts to cure are made by the loan officer), is given to a new collection agent who has no relationship with the customer.

When a borrower fails to make a monthly payment, the lender can do the following:

  • Work informally to resolve the problem; letters, meetings, and negotiations to bring the payments current, or extend or otherwise forebear on other collection options. The bank will generally always take this step first out of common sense to keep the loan a producing one.
  • Accept a Deed-in-lieu of foreclosure from the debtor. This will occur when the bank believes the debtor has no ability to pay any deficiency and the title to the property is otherwise clean of other clouds on title. In other words, it is in the bank’s best interest to save the costs associated with foreclosure because it won’t be able to recoup them from the debtor. A Deed-In-Lieu of Foreclosure is a contractual agreement that gives the property to the bank without requiring it to go through the foreclosure process in return for releasing the debtor from further collection efforts by the bank. If the debtor either has assets or the foreclosure needs to be done regardless to clear title to the property, the bank will probably not accept this solution, as it closes out an option to go after a deficiency later.
  • File a Notice of Default and proceed with a non-judicial foreclosure. This is the nearly universal procedure performed in Utah. It is much cheaper and faster to accomplish than a judicial foreclosure, it does not require using the court system, and it gets the bank a clear title within a few months for resale. After the filing of a Notice of Default, the debtor has 90 days to bring the debt current, including the reimbursement to the bank of its costs in filing. If this is done, the loan is reinstated as if the loan was never in default. If the loan is not brought current within the 90 days, the bank can notice the property for sale. This generally takes at least five or six weeks, depending on how fast the bank notices the sale. During this time, the debtor can still work with the bank to get something worked out, but the bank isn’t required to. If nothing is worked out, a sale at the county courthouse occurs and the property is auctioned off to the highest bidder, which is often the bank itself. Whether the bank can then sue for deficiency goes beyond the scope of this article, but it only has three months to decide. If the bank does not sue for a deficiency within that short of a window, the debtor is released from further liability on the loan.
  • Begin a lawsuit and bring a judicial foreclosure. A century ago, this was the only avenue available. It is slow, expensive, and rarely used. At the end of the lawsuit, a sheriff’s sale occurs and the property is sold to the highest bidder. The debtor then has six months to redeem the property by paying the purchaser the amount it bid plus 6%. This procedure keeps the property from being sold too cheaply (in theory) because if the sales price is too low, the debtor will redeem it. The property cannot be resold until the six-month redemption period is over (because who will buy it without a clear title?). In my experience, the only time a judicial foreclosure is used is if there are legal issues to do with title, or other complex sets of issues that cannot be resolved with a non-judicial foreclosure.

Real estate foreclosure statutes and the case law surrounding them is a very complex area of law. There are many pitfalls in the process. We as experienced real estate attorneys can provide advice and insight on these topics.