Court puts property seizure plan on ice
By Tara-Nicholle Nelson Wed, May 12 2010

Law of the Land

Tara-Nicholle Nelson
Inman News

In the case United States v. Queri, the federal government indicted Joseph Queri on charges of mail fraud, wire fraud, securities fraud and money laundering, among other things. The indictment included a forfeiture allegation, seeking to have Queri turn over to the government any property that could be traced to the alleged crimes.

If property directly linked to the crimes was unavailable, the indictment specifies that an apartment complex owned by an LLC in which Queri was an 80 percent member would be forfeited as a substitute.

The United States recorded a lis pendens — a notice of pending action — against the apartment complex, The Bradford, the day after the indictment came down. The lis pendens prevented the LLC from refinancing or renegotiating a mortgage loan secured by The Bradford, causing the mortgage to become past due.

Queri filed a motion for the U.S. District Court for the Northern District of New York to order the U.S. government to remove or cancel the lis pendens, so that the mortgage on the Bradford could be renegotiated.

Queri’s motion was granted, and the court ordered the government to remove the lis pendens.

In argument on the motion, the government acknowledged “that federal law does not expressly authorize the filing of a notice of lis pendens on potential substitute property.” Citing United States v. Gotti, 155 F.3d 144, 149 (2d Cir. 1998), the court explained that the law authorizes the government to place a pretrial restraint to ensure that property directly connected to the charged offenses is preserved, but may not place pretrial restraints on substitute property.

In Gotti, the pretrial restraint the government was not allowed to place on substitute property was a restraining order prohibiting the sale of the property; in this case, the restraint the government sought was a lis pendens.

Following the rationale of a similar opinion issued by the Southern District of New York Court, the court ruled that there was virtually no difference between a lis pendens and a restraining order against the sale of the property in this case, because a lis pendens recorded by the U.S. government would in effect prevent the property from being transferred, realistically speaking.

The court rejected the government’s argument that the lis pendens on Queri’s substitute property was authorized by sections 6501 and 1343 of the New York Civil Practice Law and Rules, both of which “provide that such notices may only be filed in any action ‘in which the judgment demanded would affect the title to, or the possession, use or enjoyment of real property …’ ” The judgment sought by the indictment against Queri, explained the court, is Queri’s conviction — which affects only the title and possession of property connected to that offense, not substitute property.

Additionally, the government neither alleged nor provided evidence that Queri’s interest in The Bradford was acquired using assets he obtained by committing the crimes with which he was charged, as required for The Bradford to be forfeited as substitute property.

Accordingly, the court ruled, until the government satisfies the elements required to establish its right to forfeit Queri’s substitute property, the government is prohibited from recording a lis pendens against The Bradford. Queri’s motion was granted and the lis pendens was ordered to be lifted.

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1. A copy of any collection letters, foreclosure filings, etc.
2. Lender name, contact name/s, and phone numbers for lender
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4. Recent mortgage statement or coupon showing balances
5. Property Survey (if available)
6. Copy of previous Appraisal
7. Hardship letter
8. W-2’s (needed for each person on the deed)
9. Bank statements- for last 2 months all 4 pages of each (needed for each person on the deed)
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^{Feel free to contact myself for more information at (704) 840-4137 or Rod Potter at rpotter@carolina.rr.com.}

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Are you in foreclosure and looking to save your credit?

I can sell your home and as the seller, you may not have to pay any COMMISSIONS!!!  I will negotiate with your mortgage company to have ALL CLOSING FEE’S  (including the commissions) paid by them, or by the buyer of your home if a shortsale is needed.

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In these difficult times, it can feel like there are nothing but bad choices.   However, some are not as bad as others.   If you are finding yourself having difficulty with keeping up with your payments you do have some choices.

Short Sale: Even if you are behind on your payments or don’t think you can sell your home for as much as you owe, we may still be able to help you sell our home and get out from under your loans.   A short sale is when you sell your home for less than the total amount you owe the lender(s).    The process can be arduous but you avoid a foreclosure and generally will face less negative consequences on your credit score.   We have successfully negotiated over 30 short sales and usually gotten the lenders to forgive the shortfall on the payoffs.

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Contact me today for more information!  Email: rpotter@carolina.rr.com / Phone: (704)840-4137 / Website:  www.rodpotter.com

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Congratulations on your decision to join the ranks of millions of home owners! Spring is the perfect season to buy a home, and it is the time of year when many others have decided to buy as well.  While that may seem like it would crowd the market with eager buyers, what it actually means is that those other buyers will need to first sell their current homes before they can consider buying a new one.

In my years of experience as a realtor, I can tell you that spring is a fantastic time to start shopping for your new home.  You will be able to visit and explore many homes for sale. These are homes whose owners have spent all winter preparing for your arrival.

Because lenders often offer their most competitive and attractive interest rates, and introduce new mortgage loan program, during the spring, buyers are more likely to save money when they opt to purchase during this time of year.

Here is some advice about how to structure your search for a new home. I hope you will find it to be very helpful.

Get a Loan Commitment, but Keep the Numbers to Yourself
Buyers who already have a loan commitment in their hands before beginning their home search are able to reduce the number of homes considered for purchase. Having a loan commitment also makes negotiating with the seller much less intense.

In order to obtain a loan commitment from a mortgage lender, you will first need to determine the amount of money that you can afford to pay toward your home loan each month.  Keep in mind other expenses, such as recurring debt payments, as well as possible changes in your financial or family situation over the life of the mortgage.

Once you know what you can truly afford to pay, research mortgage lenders and their specific lending programs.  As a realtor, I know that one of the most time-consuming and frustrating processes that new home buyers face is the process of selecting a mortgage product that works for their specific needs.  Explore the options, negotiate with the lender for a lower interest rate, and consider the amount you have on-hand for up-front costs and a down payment.

Once you have identified the best possible mortgage program for your lifestyle, complete the lender´s pre-approval application process, which will include providing paperwork and information regarding your financial situation and employment status and history.  The lender will investigate your credit history and may verify your employment.  If everything is in order, the lender may issue you a pre-approval decision.

At this point, you need to go one step further.  Request a written loan commitment stating that the lender agrees to give you a mortgage loan of a specific amount. This statement will also contain the maximum amount that you are approved to borrow.  Keep this number to yourself!

Make a Wish List for Your New Home
Before you begin looking at homes, it is a good idea to list everything that you want in a home.  List everything that you can think of, because this is your wish list.  Realize, of course, that the list is not set in stone and that you will probably never find a home that offers every detailed item on the list.

Next, go through your list and prioritize each item.  Mark those items that you absolutely must have with a number 1.  Mark those items that you do not require, but would prefer, with a 2.  Mark everything else with a 3, 4 or 5 depending on the importance of the item.

Take a break for a few days and then revisit your list to ensure that it accurately reflects what you´re looking for in a new home.

Once you have completed your prioritized wish list, share it with your realtor and start looking for the home of your dreams!

Look Online
After you have met with your realtor and shared your list of must-haves, the realtor will look through his or her listings and those of other realtors to identify homes that meet your requirements.

While the realtor is doing this, you can use the Internet to search on your own.  Many online realtor sites allow potential buyers to search for homes against a specific list of criteria, and most of these sites provide photographs of the listed homes.

Make a list of any homes that capture your interest, including their address (if available) or the general location.  Most homes listed on realtors´ websites have an MLS (multiple listing service) number, which allows the realtor to find out more detailed information about the home, including the address if you were unable to find that information.

Finally, contact the realtor to arrange showings of the homes that you are most interested in.

Take a Drive
The Internet is a great tool for researching potential homes and neighborhoods, but if you plan to relocate to an unfamiliar area, take some time to explore the location.  If possible, visit the neighborhood at several different times of day.  Driving through a neighborhood in the evening might enable you to talk to other residents. Driving through the neighborhood late at night might give you some insight into the level of noise, activity and possibly even crime that you might experience while living there.

Communicate with Your Realtor
Your realtor´s top priority should be to help you find the right home for your needs. A good realtor will use years of experience and various types of expertise to work with you to find the perfect match.  If you change your mind about what type of neighborhood or home you´re interested in, simply let your realtor know, so that he or she can adjust the search on your behalf.

When you and your realtor work together as a team, you will successfully find the home of your dreams!
Be Prepared for a Fast Closing
When negotiations have stalled, one of the things that can jump-start the sales transaction is for the potential buyer to offer the seller a 30-day closing.

Remember that many spring buyers are also sellers.  Therefore, some sellers must wait for their current home to sell before they are able to close on their own new home.  By carefully navigating this situation and applying strong negotiation skills, you may be able to move into your new home within a month from the date you make an offer.

Buying a new home is a very exciting process, and buying in the spring definitely carries many advantages for buyers.

A good realtor will be willing and available to help you with each and every step of the home-buying process.  From investigating mortgage programs and developing your wish list, to negotiating with sellers, let your realtor´s expertise and experience work for you.

Contact me today for more information!  Rod Potter/ Email: rpotter@carolina.rr.com / Phone: (704)840-4137