Amy Bales

Amy Bales

Amy Bales focuses on the areas of real estate, wills and trusts as well as entertainment, sports and intellectual property law. She is admitted to the bars of Florida, New Jersey and New York.

Ms. Bales earned her Juris Doctor from Rutgers University School of Law in Newark, NJ, where she was president of the Moot Court Board and editor of the Women’s Rights Law Reporter, founded in 1970 by Supreme Court Justice Ruth Bader Ginsburg. She received her Bachelor of Science degree in biology from Creighton University in Omaha, NE and a Doctor of Medicine degree from the Universidad Iberoamericana in the Dominican Republic.

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Closing costs in Florida

When purchasing a home in Miami or anywhere else in South Florida there are numerous fees, costs and expenses which get allocated between the buyer and the seller on the closing statement (or HUD-1 Settlement Statement).

These items are called closing costs and are typically allocated according to local custom or are, at times, negotiated between the buyer and the seller. Below is a list of the typical closing costs paid by both the buyer and the seller in a typical residential real estate transaction in Miami and South Florida.

It is advisable for a buyer or a seller to engage the services of an experienced Florida real estate attorney prior to signing the purchase and sale contract to not only review the terms of the contract, but also to make sure that these various closing costs are properly allocated between the buyer and the seller in the contract.

Buyer closing costs

Customary buyer closing costs include:

  • Down payment
  • Title insurance
  • Documentary stamps on the note
  • Intangible tax on the mortgage
  • Loan fees
  • Prepaid interest
  • Inspection fees
  • Appraisal
  • Survey fee
  • Mortgage insurance
  • Hazard insurance

Seller closing costs

Customary seller closing costs include:

  • Loan payoff
  • Broker's commission
  • Documentary stamps on the deed
  • Prorated real property taxes
  • Title search fee
  • Lien search fee

As a highly experienced Florida real estate law firm and title company, Federal Title continually guides both buyers and sellers regarding the proper allocation of closing costs and makes sure that what the parties contracted for is properly reflected on the closing statement at the time of closing so that there are no surprises on the day of closing.

What does a title company do?

In the wake of foreclosure problems stemming from improper documentation and representation, a title insurance policy has never been more valuable than it is right now in this current real estate market.

Clients often ask: What exactly does a title company do? And the easiest answer that I give them is, "Take a look at our website and view the videos."

At Federal Title, we conduct an extensive search of public records to verify the seller's right to transfer ownership. The purpose of all this research is to discover claims or defects (a.k.a. "clouds") that limit the owner’s right in transferring the property.

Lenders require title insurance when the purchaser obtains a mortgage to finance the purchase; this type of insurance is often called a lender’s title insurance policy to cover the bank’s interest in your property and to safeguard first position as a lien holder on your property.

At the time of closing an owner’s title insurance policy is also issued which protects you as the purchaser at the closing. An owner’s policy is your assurance of protection against economic loss if a title defect is ever discovered and a claim filed against your property.

The insurance premiums are only collected once, and your coverage will remain consistent for as long as you or your heirs retain an interest in your property or until you refinance the property at which point a new policy is issued.

Without the protection of an owner’s policy, you may be in jeopardy of losing your investment which stems from a cloud on title that does not appear in the public records such as:

  • Forged legal instruments (deeds, mortgages, wills, releases of mortgages)
  • Improperly recorded legal documents
  • False impersonation of the true property owner
  • Undisclosed heirs
  • Issues involving improper marital status
  • Documents executed under false powers of attorney
  • Deeds drafted by persons lacking legal capacity
  • Undisclosed spouses
  • Issues of rightful possession of land; which arise when a foreclosed property owner claims that they did not receive proper notice of the foreclosure.

In the event that a claim is filed against you as owner of your property, the title insurance will cover your legal expenses, court costs and related fees. If the claim against the property is valid, then the title insurance company will reimburse you for your loss up to the amount of the policy.

At Federal Title our attorneys are diligent in reviewing all documentation in an effort to assist buyers with the often times unexpected yet frequent legal matters that arise during the purchase and sale of real property. At Federal Title and Escrow there is always an attorney title agent on each transaction that is prepared to explain, negotiate and if needed, represent your legal interests in every transaction.

Reasons why you should hire a Federal Title attorney for your purchase of a short sale property

In the current economy, short sales have become an increasingly common part of our day-to-day business. Due to declines in market value, the contracted sale prices on many homes are not enough to satisfy all of the liens encumbering the property and to pay the transaction costs.

Therefore, inherent in these types of transactions is the need for legal advice and guidance that is separate and distinct from the run of the mill title service provided by non-attorney title agents.

Generally, non-attorney title agents may perform the following functions:

  1. Search the title and identify superior and subordinate liens;
  2. Gather information and prepare the form required by the lender to obtain a payoff statement;
  3. Obtain estoppel letters from each lien holder in which they commit to release their lien upon payment of a certain amount and/or satisfaction of other conditions;
  4. Prepare HUD-1 closing statements;
  5. Communicate information between the parties to the transaction; and
  6. Obtain payoff amounts, complete the closing and issue the requisite insurance policy.

These represent the bare-boned services provided by any title company and unfortunately, in any real estate climate, these general functions are not sufficient to protect the buyer and/or seller when unforeseen issues arise.

On the other hand, attorney title agents enhance the title services provided by being able to provide the client with an abundance of services, a few of them being:

Give opinions or explanations of the legal significance of any documents involved in the transaction;

  1. Clear title issues which require the services of licensed real estate attorneys;
  2. Counsel homeowners that sell their property in a short sale transaction as to the possibilities or legal ramifications of deficiency judgments and the impact of the proposed short sale on those issues;
  3. Counsel homeowners as to the strategy of negotiating a short sale as it might affect pending or future foreclosure and the implications of legal enforcement actions or other legal rights and remedies;
  4. Counsel the homeowner on the impact of filing for bankruptcy protection generally or as it relates to a short payoff and/or foreclosure; and
  5. Counsel the buyer as to whether the proper actions were taken in a pending foreclosure and whether there were any omissions that may cloud title.

At Federal Title our attorneys can assist buyers or homeowners with the often times unexpected yet frequent legal matters that arise during the purchase and sale of real property. At Federal Title there is always an attorney title agent on each transaction that is prepared to explain, negotiate and if needed, represent your legal interests in every transaction.

Case study: Title insurance and cash-only deals

I was glad to see an article the other day in the Wall Street Journal that more closely reflects our experience in the Coral Gables, Pinecrest, Miami Beach, Key Biscayne and Key West areas. There is no doubt that the local Florida real estate economy is being supported by cash buyers whom are often either foreigners or “snow birds.”

Whether or not real estate prices have “bottomed out,” the fact remains that there are excellent buying opportunities for those with enough cash or credit to buy in this economic climate.

Cash buyers are often reluctant to buy title insurance since it is not required when paying cash for real estate. Title insurance is viewed as an esoteric commodity that’s imposed by lenders but doesn’t actually serve a purpose.

Thus, buyers paying cash for real estate who are not required by the lender to purchase title insurance often decide to forego purchasing title insurance which is always a bad idea.

I have a client who came to us after having paid cash for a beautiful vacation home in Florida. My client bought the home from a bank that had obtained it through a foreclosure proceeding.

Because my client viewed the title insurance as an added, unnecessary expense, he opted not to buy title insurance. After spending hundreds of thousands of dollars in remodeling his vacation home, my client received a summons and complaint from the previous owner of the home stating that the previous owner was never properly notified of the foreclosure, thus the foreclosure was void, and the resulting sale of the home to my client was also void.

A quick review of the docket indicated that a person with the same name as the previous owner of the property had been served and had filed an affidavit with the court stating that he was not the owner of this property and they had served the wrong person.

Had my client bought title insurance he would be protected for the amount of money that he paid for his vacation home, and would have possibly avoided the entire predicament, as a settlement attorney at Federal Title would have reviewed the foreclosure docket to make sure that all of the proper steps had been taken in the foreclosure.

In Florida, get a title search before entering into a short sale agreement

In the past few years, short sale transactions have become more prominent in Florida due to the decline in the real estate market. Buying a home in a “short-sale” means that the lender is accepting less than the total amount due on the existing mortgage.

Most homes that are sold as short sales are already in the foreclosure process and as real estate values decline more lenders are accepting short sales or discounted payoffs, rather than holding a large inventory of real estate on their books.

Many people are under the impression that because they are buying a home in foreclosure through the short sale process, that they are receiving a home that is free and clear of liens and similar encumbrances. This is not the case; the new home owner will be responsible for liens that pass with the property such as property-tax liens, IRS liens, homeowners’ association liens and municipal liens.

Once a bank approves a short-sale, there is frequently a sense of urgency on behalf of the bank and the seller to sell the property which is often in foreclosure. The purchase and sale agreements are regularly as-is and void of title, lending, appraisal and inspection contingencies. Therefore, the buyer is often in the dark about the condition and state of the property that they are buying.

Serious buyers should proceed with caution and order a title search, which is often obtainable within 24 hours, prior to proceeding with entering into the short-sale purchase agreement for the purchase of the home. Once the title search is reviewed, the buyer may find that due to the existing liens, the house they were thinking of buying is not such a great bargain.

Here at Federal Title our attorneys can assist the buyers with negotiating with the lien holders directly to extinguish the liens for less than face value prior to closing. Federal Title will also assist the buyer in obtaining an owner's title insurance policy which protects the buyer from title defects that weren't disclosed by the seller at or before closing. Using Federal Title and Escrow Company will ensure that you do not get the “short end of the stick” on your short sale.

Governor Crist helps property owners affected by Gulf oil spill

Florida Governor Charlie Crist sent a strong message to Florida legislature to take action on behalf of homeowners whose property values have suffered as a result of the Gulf oil spill.

On July 21, 2010, the day after the Florida Legislature shunned Governor Charlie Crist’s plan for an oil ban, the Governor attempted to give property owner’s affected by the oil spill a break by issuing an Executive Order.

The Order states that property appraisers in the affected counties are authorized “to provide interim assessments of any real property in the affected counties that may have suffered a loss in value as a result of the Deepwater Horizon oil spill. The purpose of this assessment is to document the “current year claims against British Petroleum and any of its agents or subsidiaries responsible for the disaster and other responsible parties.”

These interim assessments are then to be made available to the affected property owners to be used as documentation of any loss in real property value sustained as a result of the Deepwater Horizon oil leak to substantiate claims against BP and other responsible parties relating to the loss in value of the property.

The documentation may also be used to substantiate claims for the economic loss resulting from liability for property taxes, which are based on the January 1, 2010 values despite a disproportionate reduction in the value of the real property caused by the oil spill.

Although the Governor does not have the authority to issue tax rebates, it sends a clear message to the Florida legislature that action must be taken, at least in the areas of Escambia and Santa Rosa counties which are the counties most affected by the oil spill thus far.

Filing Chapter 13 bankruptcy with a second mortgage

Curiously, I received several calls this week inquiring whether filing a Chapter 13 bankruptcy would “automatically” eliminate a second mortgage. The simply answer is “maybe.”

If the amount of your first mortgage is greater than the current value of your home then the bankruptcy court has the ability of declaring any second mortgage or HELOC loans unsecured debt by virtue of the fact that the value of the home does not support the mortgages.

Declaring the second mortgage or HELOC as unsecured debt has the effect that now these mortgages are treated as any other unsecured debt (i.e. credit card) and the amount that the homeowner is required to payback is determined by their income.

As many homeowners took out Home Equity Lines of Credit (HELOC) prior to the mortgage meltdown, which was fueled by inflated appraisals and undemanding lending practices, they are now left with mortgages on their homes that exceed the current value of their real estate.

Furthermore, several personal finance advisers have been urging that obtaining credit after filing bankruptcy is not as difficult as we have been led to believe. Therefore, it seems that more and more people are at least contemplating the possibility of filing for Chapter 13 bankruptcy.

Residential real estate prices rise in Miami market

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