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Truth In Lending Act

Truth In Lending Act

The Truth in Lending Act (TILA) is a federal law legislated on May 29, 1968 under the Consumer Credit Protection Act. The TILA was created to protect consumers involved in contracts with credited purchases with creditors and lenders. Essentially the TILA act enforces loan companies and credit card companies to provide all information regarding interest rates and other fees before a consumer agrees to borrow.

TILA covers open-ended credit and close-ended credit. Open-ended credit includes borrowed funds such as credit cards, debit cards and home equity loans. Examples of close-ended credit include auto loans and home mortgages.  Information regarding terms of an Annual Percentage Rate (APR), the total amount offered in a loan and the frequency of due dates to repay the loan is now obligatory for the loaner to provide to the consumer under this act. The dispense of required information now allows consumers to be aware of contracts, costs of credit and so-called hidden fees. Consumers are also able to be more confident and comfortable agreeing to credit related contracts because they can use the provided information to compare a variety of loans or borrowed money.

Failure of cooperation by a loaner or creditor to provide the required information to the consumer can result in rescission in certain instances. The loan or credit transaction would be disentangled and canceled, and all fees and paid money would be returned back to the consumer in a rescission. Lenders and credit companies are more disposed and willing to provide the required information based on TILA due to the amount of loss which could generated during a rescission.

You can find out more information about the Truth in Lending Act (TILA) regarding home owners and foreclosure by reading 23 Legal Defenses to Foreclosure: How to Beat the Bank by Troy Doucet.

 

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Doucet & Associates Offering Living Will Documents at Home & Garden Show

Doucet & Associates Offering Living Will Documents at Home & Garden Show

We often talk about how dedicated we are to serving the community through our practice, but that does not mean much if we do not regularly engage the community. For this reason, Doucet & Associates Co., L.P.A. will be at the Columbus Home & Garden Show this September 11th – 13th where we will be offering free Healthcare Power of Attorney and Living Will documents. This is a great opportunity for everyone to take advantage of Columbus’ plentiful home improvement and gardening resources, while attending to necessary legal matters many of us often neglect.

A Healthcare Power of Attorney document grants a trusted individual of your choosing with the right to make medical decisions on your behalf if you are unable to do so. Living Wills outline your wishes and instructions in the event that an accident leaves you permanently unconscious. While the very idea of needing someone to make such important decisions for you can seem daunting, these documents are very useful in the event of an accident, and should be considered by everyone. Taking the time to ensure these documents are ready can spare your loved ones from the expensive and lengthy process of establishing guardianship, which is why we wanted to offer them to the community.

These documents are designed to be quickly and easily completed. However, if you have any reservations or questions about these documents, our attorneys will be at the booth ready to answer any questions and offer whatever assistance they can.  Doucet & Associates is dedicated to serving the community, and we will do whatever we can to ensure that necessary legal tools are available to those who need it. We are fully aware of how stressful and intricate estate planning can be and encourage you to call us at (614) 944-5219 if you have any questions, or cannot attend the Home & Garden Show. We look forward to helping the community in any way we can and look forward to seeing you in September.

 

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Free Download: Living Will and Healthcare Power of Attorney – Appoint Who You Want to Make End of Life Decisions

Free Download: Living Will and Healthcare Power of Attorney – Appoint Who You Want to Make End of Life Decisions

Estate planning can be daunting and require you to make difficult decisions. Deciding what should go in to a Last Will, who should have guardianship over your children, how your assets should be divided, or even who has Power of Attorney over you in the event that you are incapacitated are decisions that cannot be made lightly. Doucet & Associates recognizes this and works to make estate planning as painless and meaningful as possible, which is why we offer a free Living Will and Healthcare Power of Attorney on our website by clicking here.

Living Wills are important for estate planning and ensure your wishes are honored in the event that you enter into a permanently unconscious state. Living Wills outline what kinds of medical treatment you wish to have performed on you in the event that you are unable to make these decisions yourself. A living will may also declare at which point you would like ongoing medical treatment such as CPR or under what circumstances you would prefer a DNR. One is available free here for Ohio residents.

In situations where an individual is rendered unconscious, life sustaining treatment is often recommended by doctors to preserve the life of a patient. If you are in terminal condition, or permanently unconscious and do not have a living will, you effectively have limited your say in your own medical treatment. Without a Living Will, doctors will have to refer to whoever has Power of Attorney over your healthcare to decide which course of treatment is most appropriate.

Establishing Healthcare Power of Attorney can be a lengthy an expensive process in many cases. Doucet & Associates offers Healthcare Power of Attorney forms in addition to Living Wills that name a trusted individual who will make the decisions you will not be able to in the event that you are incapacitated. Without a Healthcare Power of Attorney form, the court must establish who has Power of Attorney over you, which can be a lengthy and expensive process. It is also available here.

Doucet & Associates offers estate planning advice and forms for Healthcare Power of Attorney as well as Living Wills. We can also help with a full Last Will and Testament, and offer simple drafting for only $495 (one person), or $695 for a spouse too. If you need guidance or advice, our attorneys will be there to answer any questions you may have. If you cannot wait until September, or would simply like to address planning your Last Will and Testament, Living Will, or Healthcare Power of Attorney, call us at (614) 944-5219.

Click here to download your FREE Health Care Power of Attorney and Living Will.

 

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Doucet Publishes “The Art of War for Lawyers”

Doucet Publishes “The Art of War for Lawyers”

Attorney Troy Doucet just released his version of Sun Tzu’s famous “Art of War” book that applies Sun Tzu’s teachings to litigation.

This carefully crafted litigation manual offers numerous insights into the practice of law. You will learn:

-The five dangerous personality traits and six calamities that lead to a case’s ruin. -How just five factors determine a case’s outcome. -How to manage the nine kinds of jurisdictions. -How to prepare for and use scorched earth tactics. -How to classify and work with various kinds of evidence. -How to effectively employ witnesses. -How to use secrecy, bait, and a developed strategy to keep your opponent off-balance. -And much more!

Learn more directly from Mr. Doucet’s sales portal at https://www.createspace.com/4769075. The book is also available on Amazon.com.

Only $24.95

 

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How to Answer a Foreclosure Lawsuit

How to Answer a Foreclosure Lawsuit

The following information is taken from Troy Doucet’s book, 23 Legal Defenses to Foreclosure.

Defined A lawsuit is a legal action filed by a party seeking to enforce his or her legal rights. A foreclosure action is one whereby a lender seeks to enforce its legal rights by foreclosing on the mortgage,* taking the property, selling the property, and recouping the money the owed under the mortgage.** When the amount recouped by the sale of the property is less than the amount owed on the mortgage, the lender will likely seek to require the borrower pay the difference. This difference – the amount the borrower must pay after the sale – is called a deficiency judgment. Depending on the sale price of the property, this deficiency judgment can be substantial.

The Answer The answer to a foreclosure lawsuit is exactly what is appears to be – a A borrowers answer to the allegations made in the lawsuit (sometimes called a foreclosure “action” or “claim.”) The lender is the “plaintiff” and the borrower is the “defendant” when the lender files a foreclosure lawsuit against the borrower.

The answer to the foreclosure contains three sections, as described below. ! It is very important all defenses known to the borrower at the time the answer is filed are included within the Answer. Civil Rule 12(b) requires “every defense to a claim…must be asserted in the [Answer]…” Not including the defenses in the Answer can cause the borrower to waive his or her ability to raise the defenses later.

If a rough Answer has already been filed in the lawsuit, the borrower may be able to file an Amended Answer.

See the chapter in 23 Legal Defenses to Foreclosure called “Amended Answers” if this applies in your situation (Also See Appendix E to 23 Legal Defenses to Foreclosure.)

Timing It is critical that an answer be filed within the required time frame under the rules of your state. Most states require the lender say within the lawsuit paperwork (within the Complaint, or on a cover sheet) how long a borrower has to file his or her Answer to the foreclosure. Whether a date is stated or not, the Answer usually must be filed within 20-30 days from the date served. If and Answer is not filed, the lender can move for default judgment, which means the borrower doesn’t disagree with the foreclosure, even though he or she was given an opportunity to do so.

If it is nearing the deadline or the lender hasn’t requested a default judgment yet, it is generally appropriate to file a “Motion for Extension of Time.” (You can find an example here.) Instead of filing an Answer to the foreclosure lawsuit, the borrower may file a “Motion to Dismiss,” which stops the clock running on the need to file an Answer until the Motion to Dismiss is ruled upon by the Court.

If you believe a defense is present that warrants a Motion to Dismiss, this will stop the foreclosure clock until the court decides whether dismissal is warranted. (See Appendix C.)

Things to Consider When Beginning a Foreclosure Defense The most significant item to consider is the impact fighting a foreclosure will have on the amount the borrower might be obligated to pay post-foreclosure via “deficiency judgment” (the difference between the amount the property sells for at auction and the loan amount still owed.) The amount owed at the end of the foreclosure action generally includes the amount of interest and penalties accumulated between the default date and the date of final judgment, as well as (in most states) attorney’s fees.

If the borrower thinks he or she might end up in bankruptcy if the foreclosure defense fails, then these accumulating costs might be less of a concern.

Next, consider if you wish to have a jury trial or a trial in front of a judge. This designation should be made within the Answer, usually by writing “JURY TRIAL DEMANDED” under the title of the document, then add a section after any Counter Claims titled “JURY TRIAL DEMANDED” and write “Defendant hereby demands a trial by jury.”

It is usually a good idea to demand a jury trial, or one judge will be making all of the decisions. (Again, an example of an answer is in Appendix D of this book.)

What an Answer Must Contain The answer to the foreclosure lawsuit has three major parts to it: 1) A statement admitting or denying the allegations made in the Complaint, 2) A list of defenses to the foreclosure lawsuit, and 3) A list of affirmative defenses to the foreclosure lawsuit. Sometimes there is a section called “Counter Claims” which acts like a counter-lawsuit, suing the lender for its own violations of the law. Each will be discussed below.

! Most states are “notice pleading” states, which means an answer only needs to put the other side on notice of your defenses.

An answer generally does not require a laundry list of facts supporting each defense, just enough information to put the other side on notice of how you intend to defend the lawsuit at trial. However, counter claims should contain each of the “elements” that establish that particular counterclaim. (Each of the chapters in this book give you the elements for each claim.)

Admitting or Denying Allegations The first section of the “Answer” admits or denies each allegation of the lender, paragraph by paragraph of the complaint.

For example, paragraph #2 of the complaint may allege you have not made a payment since January 1.

If you actually stopped making your payments on March 1, then you would deny the allegation in paragraph #2.

Your denial would appear like this in the Answer: “Defendant denies the allegation contained in paragraph number 2 of the complaint.”

You should number each paragraph that admits or denies the allegations in the complaint, addressing each allegation made by the lender.

Defenses The defenses section of the Answer is the section where the defendant-borrower states the reasons why the lawsuit should never have been filed because the plaintiff-lender is “flatly wrong.” Each defense only needs to be a short and plain statement of the defense raised, unless fraud is one of the defenses, in which case the specific grounds of the fraud must be stated.

Generally, most of the defenses raised in this book won’t fall under this section, but rather under the Affirmative Defenses section, as described below.

A defense would include a statement to the effect of “you got the wrong guy.” Formally, this would be defense entitled, “Failure to State a Claim.”

Worth Repeating! It is very important all defenses known to the borrower at the time the answer is filed are included within the Answer. Civil Rule 12(b) requires “every defense to a claim…must be asserted in the [Answer]…”

Not including the defenses in the Answer can cause the borrower to waive his or her ability to raise the defenses later.

If a rough Answer has already been filed in the lawsuit, the borrower may be able to file an Amended Answer. See the section called “Filing Amended Answers” if this applies in your situation. If you make a mistake and include a defense as an affirmative defenses, or an affirmative defense as a defense, most courts will still accept the defense. (See Civil Rule 8(c)(2).)

Affirmative Defenses Affirmative defenses are the rough equivalent of “yeah, but…” That is, the lender is not flatly wrong in filing the foreclosure action, but there is some legal reason to avoid judgment in the lender’s favor. For example, the lender might have sued the right person, but failed to mail a required Notice of Acceleration, which most mortgages/deeds of trusts require occur before the lender files foreclosure. This is required under covenant 21 or 22 of most mortgages and creates a “conditions precedent” before foreclosure can begin.

That is, the lender must mail the notice and wait 30 days, or it cannot foreclose. If this is applicable in your situation, you may be able to have the case dismissed, force the lender to mail you the correct notice, and then wait 30 days before refiling. (See Defense #12: Conditions Precedent for more information on this.)

Counter Claims Counter claims are mini-lawsuits filed back at the lender. Instead of filing a separate lawsuit against the lender, you may include a section within the Answer document that alleges claims against the party suing.

If you think a counter claim is applicable, you must file it in the foreclosure action, or be forever barred from bringing it.

! Civil Rule 13(a) requires the Answer you file include as a counterclaim any claim that – at the time of the lawsuit’s service – arises out of the transaction that is the subject matter of the opposing party’s claim.

In a foreclosure lawsuit, this means any claims the homeowner has against the lender due to a defect in the mortgage must be filed with the Answer. This is called a compulsory counterclaim. It means that if you lose the foreclosure lawsuit and later find out the…

The preceding information is taken from 23 Legal Defenses to Foreclosure.

 

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