Mortgage Forensics in Houston
Real Estate Law in general requires written evidence. If you are acquiring a mortgage loan, a promissory note establishes the terms of the loan. If you are leasing a house, you need a residential lease to prove you have possession and access to the home. If you are conveying real property, a deed is recorded in the public records to notify the world a transfer of ownership has taken place. Regardless which attorney you retain for your real estate matter, you should always conduct a document investigation beforehand.
Texas Statute of Frauds in Houston
Pursuant to Chapter 26 of the Texas Business and Commerce Code, a promise or agreement must be in writing and signed by the person to be charged with the promise or agreement. This applies when dealing with a contract for the sale of real estate, a lease of real estate for a term longer than one year, and certain types of loan agreements. The written documents establish what was agreed upon between the parties. Without written real estate documents, no reference point exist to resolve any issues that may arise. In real estate, you can’t just make a statement and it be deemed true. Your documents are your evidence and your “witness”.
Typically during a real estate dispute, parties seek legal counsel to determine what legal claims they may have in relation to a particular matter. They depend on the knowledge and experience of an attorney to guide them on which claims they may be entitled to. Unfortunately with real estate matters, a competent attorney can’t just give legal advice without examining all the written documents. It is comparable to asking a mechanic to tell you what’s wrong with your vehicle without looking under the hood. Would you want a mechanic to replace your tires if you tell them your A/C is not working? Similarly, you want an attorney to do their due diligence by reviewing your documents to determine the right course of action before advising a client.
In many cases we see attorneys shoot from the hip by taking a client’s word as gospel and initiate a lawsuit with as many claims as possible. They are hoping that either a) the opposing party will not respond and they will win by default, b) it will scare them into a settlement, or c) something will stick. We call this strategy the Spaghetti Effect. It’s like throwing spaghetti against the wall and seeing what gamble? Yousticks. Would you want an attorney representing you that took this approach? Are you willing to exhaust your finances, time, energy, and emotion on a gamble? You only get one chance to get it right.
The Power of Document Investigation in Houston Texas
Title Defects – We often use a document investigation to clear title defects. We investigate all the title documents to ensure no title defects or establish where a title defect took place. Once we know a title defect exists, we can then attempt to clear that defect.
For example, a client is attempting to purchase a property via owner financing. A document investigation is recommended before proceeding with the sale to ensure a clear title. Once the document investigation is conducted, it is determined that the owner has multiple liens on the property. Without the document investigation, the client would have inherited tens of thousands of dollars in liens by purchasing the property.
Foreclosure Defense – Many times in foreclosure defense the document investigation is a tool to create leverage. If we can find violations that the lender committed, then it can be used to stop foreclosure and get the lender to offer an alternative to foreclosure such as a loan modification or short sale. In some cases we can even rescind a foreclosure.
For example, a client is up for foreclosure. Once the document investigation is conducted, it is determined that the trustee did not properly notice the borrower of the foreclosure. This will halt the foreclosure immediately. Without the document investigation, the client would have been foreclosed on their property and lost all the equity in their home. In addition, they may have been evicted from their home without a place to stay.
Probate – In probate matters, the document investigation is used determine what assets and liabilities an estate has. Determining the assets and liabilities of an estate is important in probating an estate. In fact, it cannot be done without completing that process. In addition, the document investigation is used to determine the proper heirs of the estate.
For example, a client’s father has passed and they are trying to probate his estate. Once the document investigation is conducted, it is determined that the father owed 5 additional properties that the client was unaware of. Without the document investigation, the client would have potentially lost interest to 5 properties.
Document Investigation in Houston Texas
Unlike the Spaghetti Effect described above, we know what our strategy and likelihood of success is before we even take the case. Why? |Because we conduct a document investigation before we even start advising.
A document investigation is a thorough review of written documents that are relevant to the matter. This includes a review of documents from the client and documents obtained by the attorney from other sources. The intent of the investigation is to legally interpret the documents to diagnose a remedy. How can an attorney give legal advice in a dispute if they don’t know what the documents state. Every agreement has different terms and conditions so it is imperative for documents to be reviewed by a competent attorney to determine the legal implications.