Items of Interest in the World of Law

Valerie M. Roach

It doesn’t take long to build up medical bills when you are involved in an auto accident. A trip to the hospital by ambulance and exam in the ER can amount to several thousands of dollars even before you see your physician, chiropractor or physical therapist. If your injuries are more serious, the costs skyrocket.
Don’t forget to protect yourself against being hit by an uninsured motorist or someone without enough insurance to pay your claim by carrying good uninsured/underinsured motorist coverage on your auto policy. Although it is not required by law, it is an important part of your auto policy because it will allow you to recover money for bodily injury and pain and suffering if the person who hits you and is at fault has no insurance or a small policy.
Uninsured/underinsured motorist (UIM) coverage will pay you in place of the insurance of the driver who hit you if that person has no insurance or inadequate insurance to cover your claim. Consider getting the maximum UIM coverage you can afford, since you are purchasing it to protect yourself.
In any case, you want UIM coverage with a policy limit of more than $15,000. Here’s why. If you are hit by an uninsured motorist, you can collect up to the value of your claim to a maximum of the policy limit. But if you are hit by an underinsured motorist, you can collect up to the value of your claim to a maximum of the policy limit minus whatever you received from the insurance company of the driver at fault.
In California, the minimum amount of insurance a driver can carry is $15,000. You must first subtract the $15,000 you get from the other driver before you can collect from your UIM policy. If your UIM policy is limited to $15,000, you can collect nothing if you have already gotten $15,000 from the other driver, even if you sustain serious injuries and your claim is worth more. If your UIM policy is limited to $25,000, you can collect up to the value of your claim or an additional $10,000 from your UIM policy after you get $15,000 from the other driver. If your UIM policy is limited to $50,000, you can collect up to the value of your claim or an additional $35,000 from your UIM policy after you get $15,000 from the other driver, and so on.
Although UIM coverage may seem like an unnecessary expense, it provides you with a measure of protection if you are in an accident where the other driver carries no insurance or does not have enough insurance to pay your claim.

You’re sitting in your car waiting for the light to change from red to green when whoops! … a loud thud, a jarring of your body and yes, you have been rear-ended.

This scenario is more and more common as traffic congestion increases in Santa Cruz, Watsonville, Salinas and Monterey. Most people know enough to gather some information about the other driver and car at the scene of an accident, but there are some very specific precautions you should take:

· Get the name, address and telephone number of the driver and the make and license number of his or her car.

· Write down the name, address, and policy number
of the driver’s insurance company. It is illegal to drive in California without insurance.

· If you feel well enough you can now check the damage to your car and the damage to the other car involved.

· Write down the exact location of the accident. Note the direction you were traveling.

· Get yourself to a doctor or chiropractor as soon as
possible. It is possible that you will not feel any pain for many hours or even as long as two to three days, but medical experts tell us that everyone who has been in an accident should be examined by a medical professional. Of course, if you are in severe pain or feel that something may be broken, go immediately to an emergency hospital.

· Should you call the police? Yes, it’s always a good
idea to ask if they will come and make a report.

· Get the names, addresses and phone numbers of anyone
who saw the accident.

· If you are concerned about getting your car fixed, paying
for your medical bills resulting from the accident, and knowing your rights when dealing with insurance companies, contact an attorney that emphasizes the
practice of personal injury. They’re ready to protect
your interests and answer your questions.

Most importantly, keep calm, think positive, and call a
friend or relative for help if you need it.

Valerie Roach

The first question homeowners in default ask when the come into the office for a foreclosure consultation is usually, “Will the bank be able to come after me for the difference between what my house sells for at foreclosure and what I owe on it?” In the legal field, this amount is termed a “deficiency judgment.”

The answer to this question is somewhat complicated because it depends on a number of factors that differ with each individual case. However, there is one group of homeowners that is absolutely protected from a deficiency judgment. Calif. C. Civ. Pro. §580(b) provides that the lender cannot come after the borrower for a deficiency judgment when the proceeds of the loan in default were used to purchase the home occupied by the borrower. So, any borrower in default with a single loan that was used entirely to purchase the home that the borrower lives in can rest easy in the face of foreclosure. The bank cannot come after them for the amount still owed on the loan after a foreclosure sale.

At the current time, this law does not apply to homeowners who have refinanced their loans, even if the refinance was applied one hundred percent to paying off the original loan. Recently, the California State Senate passed a bill that would change this. SB 1178 would provide the same protection against deficiency judgments for homeowners who refinanced loans as homeowners with loans for purchase money now enjoy, but only to the extent that refinance money was used to pay off a purchase money loan or improve the property. If the refinance money was used for a car or a vacation, for example, the protection will not apply.

If the senate bill becomes law, it will take effect in June 2011. Meanwhile, there are other protections against deficiency judgments for homeowners with refinanced loans depending on the individual circumstances. Homeowners who are having trouble making loan payments and considering default should consult an attorney before they go into default so that they fully understand how the foreclosure process will apply in their particular case and can make the best decisions on how to proceed.

The decision to stop making mortgage payments and allow the lender to foreclose on your home is frightening, but it may be the only choice for some homeowners and the best choice for others.  Knowing what to expect in the foreclosure process can ease the fear and allow homeowners to act in their best interest during a bad situation.

In California, most foreclosures are done under the power of sale conferred on the trustee in the deed of trust.  These foreclosures are “nonjudicial” because the trustee sells the property without involvement of the court.  The mechanics of the nonjudicial foreclosure process are governed by Calif. Civil Code sec. 2924 et seq.  There are three parties to a foreclosure:  the beneficiary, or lender; the trustor, or borrower; and the trustee, a party responsible for selling the property.  The trustee may be the same as the beneficiary, but more often is an agent or employee of the beneficiary.

The beneficiary or trustee begins the foreclosure process by recording a Notice of Default (NOD), usually after the borrower has missed three or more payments.  The NOD must identify the mortgage, state that a breach of the obligation for which the mortgage has occurred, state the nature of the breach known to the beneficiary and his or her election to sell or otherwise satisfy the obligation secured by the deed of trust, and clearly state the amount that the mortgage is in default and that the property may be sold unless the default is cured.  A copy of the NOD must be mailed within ten days to the borrower’s address and should be easily recognized by the borrower.

Any time ninety days or more after recording the NOD, the trustee may set a date for a sale of the property and record a Notice of Trustee Sale.  The notice must contain the time and date of the sale.  The notice of sale must be posted in a conspicuous place on the property to be sold at least twenty days in advance, as well as posted in a public place and published in the newspaper.  It must be recorded fourteen days before the sale. It must contain a statement of the unpaid balance of the obligation secured by the property.  Like the NOD, the Notice of Sale should be easily recognizable to the borrower as an important legal document.  The borrower has until five business days before the sale date to reinstate the loan.

If the loan is not reinstated by the sale date, the property will be sold to the highest third party bidder or revert to the beneficiary at public auction that day.  The auction is usually held at the county courthouse and does not occur on the property, so the borrower may not be aware whether if has occurred or not.

After the sale, a trustee’s deed will be recorded putting title in the name of the purchaser at the sale.  Once title transfers, the new owners are free to begin a process of evicting any occupants remaining on the property.

The California nonjudicial foreclosure process is set down in statutes and must be followed precisely to be effective.  Homeowners should pay close attention to the process and seek recourse if there is any question about whether the lender has complied with the law.