Does a home equity line of credit count as a “contract under seal” in PA act like a mortgage?

Q: Lender is considering foreclosure however no payments have been made in almost 5 years. Owner recently passed away and the beneficiaries want to keep house but the amount owed on the home equity line of credit would put the house too far under water. (Pittsburgh, PA)

A: I am not sure of the significance of “contract under seal” here. I would have to see the mortgage papers or look at the on-line docket. This sounds like an estate issue to me. If the home is in the name of the decedent, this is an estate debt and no one else’s debt. If the mortgage balance exceeds the market value of the home, the heirs must decide how bad they want to keep the home. If there is enough liquid cash in the estate, the heirs may be able to pay the lien off or interest the bank in refinancing. If not, this may be an insolvent estate and therefore let the bank foreclose. You may be able to negotiate a deed in lieu of foreclosure with the bank and avoid a messy foreclosure and more fees and charges. You need to be asking these questions to the estate attorney. If you do not have one, you need to get one.

Is it true that if a victim no shows for three court hearings, the case is tossed?

Q: The alleged “victim” in my case has not shown twice at the magistrate to testify against me. The cops are trying to put a felony on me for aggravated assault. The victim started the fight and was only in the hospital overnight. If he fails to appear, will the judge throw the case out? (Pittsburgh, PA)

A: There is no such rule but since I began practicing it is a generally accepted way of operating. The only exception I have seen is where the DA can show some compelling reason.

What to do when executor says there was a theft of named items in the will?

Q: Four years after mom’s passing I got a copy of the will. The two heirlooms left for me in the will, my sister, the executor, claims were stolen by a third sister. The executor will not communicate with me, a named beneficiary. I assume this alleged theft must have been discovered after mom’s passing, otherwise would not the attorney have advised the executor to amend the will to reflect the unknown whereabouts of these things in order to protect the executor from financial liability? And would the lawyer not advise the executor of the will to file a police report of the alleged theft? (Pittsburgh, PA)

A: Your questions are valid but there is much missing information here. Like, why did you just notice this after four years? Was an estate opened when your mother died? Is that estate still open? Things will generally go less smoothly if this estate was opened and closed and you had not raised this question before. I would at least try to get an answer from the estate attorney. He or she should be willing to speak with you and answer your questions. If you have no luck, you have a couple options. If the estate is still open, you could wait until the estate attorney moves to close the estate. He or she can close by family agreement which means you would be required to sign off on it. Don’t sign until you get an explanation. If you don’t sign, the estate can only be closed formally, by First and Final Account. The attorney would then attempt to close the estate formally by presenting a First and Final Account to Orphan’s Court. It is called an “Audit”. You will be notified of the date, time and location of the Audit and be supplied a copy of the First and Final Account with the Notice. You can choose to appear at the Audit and convey your objections and or questions to the judge. Your other option is to hire an attorney now to attempt to get an answer for you now, and if necessary file a petition in Orphans Court if the estate Inventory does not show the heirlooms. If the estate closed, you may have a tough time getting back in to court to open this issue.

Home is in sheriff sale for back taxes. How long do I have to vacate?

Q: My home is being sold at sheriff sale for back property taxes. How long after the sale do I have to vacate? If no one bids on the property, does the home revert to the school district? Do I own everything in the house beyond personal items (i.e. water heater, electrical fixtures, doors… etc.), can I take these items out of the property before the sale?

A: If someone buys it a Sheriff’s sale, and you are still living in the home, the new owner will have to file an eviction proceeding against you. This will give you some time. A potential buyer may try to buy it for less than taxes owed and the three taxing entities can either accept or reject the offer. If no buyers come through, you can make an offer if you really want the property. You may want to research rentals versus what you will pay the bank. If the house is sold, the house is seized as collateral for the loan and you are not personally liable unless the loan agreement allows the lender to seek a deficiency judgment against you and they are willing to pursue it. You cannot take fixtures from the house-lights, water heater, doors, etc. You can take appliances if you bought them.

Why does the state board of pa have my misdemeanor still listed when my name is Googled?

Q: I received a misdemeanor under the Drug and cosmetic Act for Pa State Board of Nursing. For my first offense, I was offered an ARD. I checked my criminal court record numbers, they stated NO RECORDS EXIST. I am job seeking, worried about my record and decided to Google myself. There it is, my name, license number, offense, and punishment of 1-year suspension listed. WTF? This will prevent me from getting a job and now I must explain my misdemeanor. Isn’t that what the auto expungement was for as stated. I paid my fine in full, finished my probation of 3 months. It is over, the 1-year probation as well starting 4/20/16 to 4/20/17. Why are they listing it still? What gives? I do realize the state board and criminal court are two different entities. I just don’t know what I didn’t’ do correct. Will it go away ever? Please advise. Thank you. (Pittsburgh, PA)

A: It sounds like you successfully completed ARD in Allegheny County and the DA expunged your record for you. Your expungement removes all records from criminal data bases such as Allegheny County, the Bureau of Criminal Information, the Uniform Judicial System, the PA State Police and the FBI. There is no way for the expungement order to reach the hundreds of criminal record search websites proliferating the internet. It is possible that one or more than one of them have your arrest record posted. You can send them a certified letter demanding them to remove it or correct it. It is most likely that a future employer in PA will run your record through the PA State Police and not rely on any of the hundreds of rogue websites that provide this “service.” You can always answer, I was never convicted of a crime, truthfully. If asked were you ever arrested, you will have to say yes. Additionally, if the state board took some action against you, that has nothing to do with criminal court. That information is controlled by whatever board you are licensed by. If their disciplinary action against you was posted on the internet, you must ask them why so and how to remove it.

Is there a length of time that a person needs to live after writing a will?

Q: I have an aunt who changed her will recently and she did it to spite the one son because of his remarriage. Where originally, he was to inherit 1/2 of her estate, and the other son the other half. He now has been reduced to 1/8 of her estate, and her riding mower, with the remaining being divided between his ex-wife and the adult children. Is there a length of time she needs to remain alive to be certain he will not try to contest it? (Delmont, PA)

A: I am not aware of any such law. If she is competent, not under undue influence or coercion, and it has been executed in compliance with the law, her Last Will and Testament is presumed to reflect her testamentary intentions.

I got three DUIs. Will I get more time for the third one?

Q: I got two DUI charges in Allegheny County with probation. My first DUI was for controlled substance, second for alcohol. I was on probation in Allegheny. I received third DUI for alcohol in a Beaver County. How does that affect my charges and sentence? (Scott Twp., PA)

A: I suggest an attorney. Perhaps one that handles cases in both counties. If you have three pending DUI’s and have not been convicted (pled guilty or found guilty) of any one of them, then they are all considered first-time DUIs. This means obviously the sentence range will be lower. However, a judge will take note that you have three pending DUI’s even if none are considered prior to the others and add a little time to your sentence. As far as probation is concerned, obviously, your probation judge will not be pleased that you committed three DUIs on his or her probation. You could possibly be detained by the probation judge and sentenced to jail time.

Can I purchase a rifle, pistol, or get a carry permit?

Q: Can I purchase any of these with just a DUI and sSmple Assault misdemeanor on my state police background check that I ordered by mail?

A: I would have to look at the PA State Police criminal history record, but, I would think not, if either of those offenses was graded as a misdemeanor 2. A prior conviction for a Misdemeanor 2, will disqualify you from possessing a firearm in PA.

What are the options if a Power of Attorney refuses to do the job of a Power of Attorney?

Q: My father has my sister as his Power of Attorney, due to having issues with the law (DUI) and not being able to take care of his own financial obligations (Bills, Mortgage, and the like). We (my two sisters and I) sat down to figure out the best person for the job, and because of her strong financial stability, it was decided that the eldest daughter should take that responsibility. That was February of 2015. By September of 2015, my sister said she was not going to have anything to do with him, and refused to relinquish power of attorney. My father is now in Foreclosure with the house, bills were several months behind, until I moved back in. I cannot afford to cover the mortgage, otherwise I would have. My father spends well out of his means, and I have no legal basis to stop him. My sister was supposed to pay all the bills, and then have a card sent, so I could make sure that all his other needs were met. I love my family, but my dad is now living in a motel room, because of having nowhere else to go. What can I do? (Ligonier, PA)

A: If your father is competent, acknowledges that he needs help, and is willing to appoint you as his agent on a new power of attorney, he can simply revoke the present power of attorney and sign a new one. As mentioned, even with the power of attorney in place, he can still handle is own finances-write checks, spend money, etc. If he is not competent, unable to care for himself or danger to himself, you may want to consider having yourself appointed as his guardian. To do this you will need to have a lawyer file a petition with the court and a hearing will be held. You need to consult with an elder law attorney in your area.

Can mom transfer $10K to me without IRS problems?

Q: I am investing my money (trying to grow it beyond being in a regular savings account) and my mom has around $10K that she would also like to add to my money but we are afraid it may raise red flags with the IRS. The transition would be from one bank to a different bank. Also, I am in Pittsburgh, she is in South Carolina. (Regent Square, Pittsburgh, PA)

A: I think you should ask the bank you plan on depositing these funds in to. My recollection is that businesses must fill out an IRS form for every check or cash in the amount of $10,000.00 or over. I believe banks only report deposits from individuals to the IRS if it is cash or of a suspicious nature. These types of deposits occur frequently and the bank doesn’t like to turn in their own good customers. Another consideration is Federal Gift Tax. This amount is under the Federal Gift Tax limit and therefore there would be no concerns regarding your mother’s income taxes. Also, you may want to consider the potential consequences of this transfer if mom needs to apply for Medicaid in the next five years. If she does, this transfer may be render her ineligible for the value of the transfer to you.

Pelger Law

William R. Pelger, Attorney at Law in Munhall, PA