The Oregon Homestead Exemption has been interpreted broadly by state and federal courts. Even a mandatory security deposit has been found to qualify for exemption under ORS 18.395 and 18.402. In a memorandum opinion by Judge Albert Radcliffe entered February 9, 2011, the court rejected the prepayment of $3,900 in rent as exempt under ORS 18.395. In an unfortunate sidenote, Judge Radcliffe passed away just 10 days later at the age of 63.
Many home lenders use an entity called Mortgage Electronic Registration Systems, Inc., or “MERS” as a nominal party in loan transactions to facilitate an electronic central registry of note holders and servicers. On its website, MERS claims many benefits to use of their services. According to the website, MERS should be named in security instruments as a “nominee for the lender” in order to “eliminate the need for assignments and realize the greatest savings.” In an Oregon deed of trust instrument, MERS is often named as “Beneficiary” in its nominee capacity.
A recent decision in the Oregon Bankruptcy Court by Chief Judge, Frank R. Alley, III, complicates matters dramatically for institutional trust deed holders using the MERS system when they attempt to foreclose defaulted home loans.
A deficiency judgment is a judgment entered against a borrower after foreclosure of a secured debt when proceeds from sale of the collateral fail to fully satisfy the debt. A deficiency judgment against the borrower is prohibited by ORS 86.770(2) after non-judicial foreclosure of a trust deed on real property that is held as collateral security. This statute was changed in 2013; current statute is ORS 86-797. This non-judicial foreclosure process is referred to as “advertisement and sale” in Oregon. However, the antideficiency statute only applies after a foreclosure and does not apply when the note holder waives the security and sues directly on the note. This is made clear in Beckhuson v. Frank, 97 Or App 347, 775 P2d 923 (1989), see also the case of In Re Daraee 279 B.R. 853, a 2002 Oregon Bankruptcy Court opinion.
Deficiency judgments are uncommon for first priority home loans in Oregon. Lenders normally prefer to foreclose and sell the collateral in a nonjudicial proceeding to quickly recover as much as they can, without the expense and delay of a judicial proceeding.
If you made a mathematical error on your return, often times the IRS will automatically fix the error. After correcting the mistake, the IRS will send you a notice that shows the changes made to your return (usually a CP11 or CP12). Before correcting your return for a mathematical error, you may want to call the IRS at 1-800-829-1040 to see if they have fixed it for you.
If you forgot to include a form or schedule to your return, it is very likely that the IRS will send you a notice requesting just the missing form(s) and/or schedule(s) which means you will not need to do anything other than send in the requested items.
A bankruptcy preference is a transfer made shortly before the case is filed that the trustee can take back from one creditor and share with all the other creditors. The transfer must be of money or property in which the debtor has an interest. It must be made to a creditor owed money by the debtor. The transfer must be more than the creditor would receive in a Chapter 7 distribution. Finally, it must be made within a certain period of time. 11 USC §547 governs the preference rules under federal law.
The preference period is 90 days before filing unless the debtor has a special relationship with the creditor and is considered an insider. Insiders are close family members, business partners, or a corporation of which the debtor is a person in control such as an officer or director. The preference period for transfer to an insider is expanded by law to one year instead of 90 days.
Federal law gives the IRS a lien on all of a delinquent taxpayer assets if tax is not paid. The Federal Tax Lien is a powerful tool that the government uses to collect tax. However, it is the Notice of Federal Tax Lien that most people think of when the subject comes up. This notice is filed by the IRS when the government stakes a claim on the taxpayer’s property. The filing of a Federal Tax Lien makes the tax debt public and gives the US Treasury a priority interest above all later claims of creditors in the taxpayer’s property.
A tax lien is created automatically after the following three things occur:
- The IRS assess tax liability against the taxpayer;
- A notice of liability and demand for payment has been sent; and,
- The tax debt remains unpaid for more than 10 days after notice.
At that point in time, once these three things have happened, a “secret lien” exists on everything owned by the taxpayer.
The tax lien becomes public when the IRS files a Notice of Federal Tax Lien in the public records. It must be filed or recorded in the place state law requires for the filing of liens and must be filed in the state where the taxpayer lives. The IRS then sends a copy of the notice it has filed to the taxpayer. It is this recorded notice that makes the lien public and gives it priority over any later claims.
A Federal Tax Lien, when properly recorded or filed, gives the government a property interest in everything the taxpayer ownes. With only limited exceptions, this government interest follows the asset wherever it goes. The IRS may claim its rights in the property covered by the lien even after it has been sold to another person.