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Question (AZ): I am about to obtain a judgement lien on a party I am suing who has over $100K in equity in his home. The judgement will be for $15K. I am thinking of approaching the mortgage lender that owns the mortgage on the property in question to purchase the note and deed. If I now own the note and deed to the property and also have and judgement lien on the same property, can I attach that lien amount to the mortgage?

Answer: Ownership of a note only assures the owner of the note that if the property is sold, the judgement will be paid off provided it has been filed of record.

The lender in Arizona will most likely have a note and deed of trust but the property can only be foreclosed upon should the owner of said property violate one of the terms detailed in the Deed of Trust. If the lender is willing to sell you its note and assign the Deed of Trust to you, you become the new lender but you are still bound to the terms of the note and deed of trust.

You could only foreclose on the property if the property owner defaults on the terms of the Note and/or Deed of Trust. You most likely will not be able to combine your "judgement lien" for $15K with the 1st Lien Note and Deed of Trust because the (original deed of trust you obtained through assignment) may have a due-on-encumbrance clause which makes a further lien on the property a condition of default.

However, you should consult an Arizona attorney experienced in such matters including, but not limited to, Arizona Homestead Exemption statutes (33-1101) and the Arizona Fraudulent Transfers Act (44-1040).

Question (CA): My wife and I are currently looking to move to the Graham, Texas area. I would be interested in some property to build and/or existing homes on acreage. Could you help us out?

Answer: The "Ask George & Chuck" column answers questions from consumers (and some licensees) regarding real estate. However, although both I and Mr. Jacobus are Texas licensed real estate brokers, and Mr. Jacobus is also an attorney (see our website at askgeorge.net), we do not use the Ask George & Chuck column to obtain business.

We suggest you use your favorite search engine (we used Google.com) and enter "Graham+Texas" (without the quotes). Google returned 29,900,000 results in 0.31 seconds. You should be able to locate a reputable broker who can assist you in your search.

Question (FL): We have had our home up for sale for over 4.5 months. The realty firm with which we signed showed our home one time. We felt they were not doing as it said in paragraph 4 of our contract, "with diligence" in selling our home. We asked to be released from the contract. They said they would but that we had to wait until the contract expired before we could sign with another real estate firm. We have filed a complaint with the Board of Realtors. As of yet we have heard nothing from it. And there has been no effort for this real estate firm to try to sell our home. The owner of real estate firm did tell us, however, that she had us backed into a corner. The question is can we try to sell on our own without a release from the real estate that has our listing? Can the real estate listing firm claim any commission?

Answer: Assuming that the Listing Agreement you signed met all the requirements of a valid Florida contract, you as the Seller had a duty to have read and understood the contract. You should have thoroughly read the Terms and Provisions of your Listing Agreement before signing it, and address any questions you had to an attorney. However, when the listing firm (or its agent) does not perform under the terms of the listing agreement, and you have hard evidence that performance has not occurred, then you may have cause for an early termination of the agreement.

In answer to your specific question, it is most likely that your Listing Agreement provides for the payment of the firm's commission when your property is sold and paid for by the Buyer, regardless of who procures the Buyer. When attempting to enforce your rights under a contract, it is best to have an attorney -- successful in contract litigation, review the contract and provide advice.

Question (IN): I recently bought a house in October of 2005 in the historic district of Fort Wayne, Indiana. The transaction seemed to go smoothly until I got my property taxes this spring. It seems the previous owner in 2004 was delinquent on his property taxes for the year 2003 and the Title Company did not catch the delinquency. Property taxes in Indiana are always paid for the year before.

I have paid the taxes, but I cannot get the Title Company to reimburse me. They told me to go to the Court House and get the documentation. I did, faxed them the copy that showed I did not have ownership of this house at the time of delinquency. I asked them to get this straightened out and to reimburse me for the amount of delinquent taxes I had paid. They have my check copy of that. Thus far, I have heard nothing.

When the Title Company makes a mistake and the amount was the responsibility of the previous owner, who is responsible for this? Is this not a reason to go through a Title Company to make sure all liens against the property are paid at settlement?

This has now been going on for three months, and I found out tonight from the previous owner the Title Company never contacted him about the delinquent taxes. What would you advise me to do?

Thank you in advance for your advice and guidance. I am tired of calling the Title Company over this matter. Does the state regulate these Title Companies?

Answer: Yes, the state of Indiana does regulate Title Companies. We suggest you file a complaint with the Indiana Department of Insurance. You have apparently gone above and beyond the duty any owner should have to endure because of a title company's oversight. As you mentioned in your email to us, it is not the dollar amount of the oversight, but the fact that you would not have had to have paid it in the first place if the title company had simply done its job thoroughly.

Question (MA): Hi. We put our house on the market with a broker who failed to make diligent efforts to advertise our property and to find a buyer. We attempted three times to terminate the Exclusive Right to Sell listing contract and he keeps telling us that we can't do that because we signed this contract with him. We wrote a letter to him and his manager explaining that we are dissatisfied with their service and don't wish to do business with them anymore. They are still keeping our house on the market but without any for sale sign. They also do not show the house and they tell potential buyers that this house is currently not for sale. Yet they refuse to terminate the contract. Please, help us with advice as to how to make them cancel our listing contract so we can have another broker list our house through the MLS and sell it.

Answer: Please read our answer to the sellers in Florida who have a complaint very similar to yours. The real estate firm's keeping your property on the market without a for sale sign, without showing the house, and informing potential buyers that the house is currently not for sale, is consistent with your notifying the Broker that you wish to terminate your Exclusive Right To Sell listing agreement. However, such "early termination" may carry with it some liability for you under the listing contract's terms if the early termination is without cause. On the other hand, Massachusetts has an Unfair Trade Practices Act (Chapter 93A: Section 11. Persons engaged in business; actions for unfair trade practices; class actions; damages; injunction; costs ) and if you can prove that the brokerage firm failed to make diligent efforts to sell your property, you may be able to successfully litigate.

We suggest that you contact an attorney. Show the attorney your Listing Agreement and any written communications you have sent to or received from the listing firm or your agent. Tell your attorney you believe that the agent is intentionally not performing. You also believe that the agent is attempting to force his services on you when you don’t want them, which is the ultimate in unprofessional conduct.

Worse yet, he is prohibiting his client from competing in the market place by restricting the MLS entry. The attorney should be able to give you advice as to the merits of your case, as well as probable costs should you decide to pursue it.

As a general rule, it is always a good idea to question a real estate agent/firm regarding anything contained within a listing (or a purchase and sale agreement) that you do not thoroughly understand. To gain the necessary understanding so that you can sign the agreement with informed consent, it may be necessary to pay for an attorney's services for a short period of time (30 minutes or an hour).

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