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The term lawsuit has come to have a negative connotation, however, there are many reasons to file a lawsuit that are non-confrontational.  Lawsuits can be filed to get a clear title to sell a house, or to open a probate to distribute the estate of a deceased loved one.  Sometimes however, disputes do arise, and whether a lawsuit is being commenced or defended against, many questions undoubtedly arise.  While this article is by no means all inclusive, it is meant as a basic guideline of what to expect in litigation in the Superior Court of Arizona.

A lawsuit is commenced by filing a complaint.  Most commonly, lawsuits are commenced in the Superior Court in the County where the Plaintiff resides.  There are many exceptions to this rule, however they go beyond the scope of this article.  Once a lawsuit has been filed, it must be “served” on the Defendant, or Defendants, if there are more than one.  A lawsuit must be served according to Rules 4.1 and 4.2 of the Arizona Rules of Civil Procedure.  The most common method of service is to hire a process server who is licensed to serve the lawsuit on the Defendants.

Once the lawsuit is served, a general timeline will be set.  Although there are many different situations which can cause a timeline to expand or contract, this scenario will be for a simple lawsuit.  To begin with, the Defendant will generally have 20 days to respond or “Answer” the lawsuit.  If the Defendant does not answer, the Plaintiff can file for Default pursuant to Rule 55 Arizona Rules of Civil Procedure.  If the Defendant does Answer, the Discovery Process begins.  Simply put, Discovery is the process by which the parties gather and exchange information relevant to the case.  There is an ongoing duty to disclose new information, but at a minimum, an initial report must be exchanged no later than 40 days after the Defendant “Answers” the lawsuit.

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Polygamy is the marriage to more than one person at a time, whether legally or spiritually, and it is currently illegal in all 50 states. The Arizona Constitution prohibits polygamous legal marriages, therefore making such marriages void (having no legal or binding effect). Let’s look at the relationship between Ryan, Amy and Sara to see how they are effected. (Ryan, Amy and Sara are fictitious characters for the purposes of this article, but their situation is not as rare as it may seem and these are some of the questions we have been asked here in Arizona and fall under Family Law.)

When Ryan and Amy were young they decided to get married. Things became difficult and after a couple of years they went their separate ways, intending to get a divorce, but they never actually did. They figured their marriage was so short, it didn’t really matter if they got a formal divorce. Ryan later married Sara. Ryan and Sara were married for 20 years and now they want to get a divorce too. Given the law against polygamy, where does that leave everyone? Are Ryan and Amy divorced because their marriage was abandoned over 20 years ago? Does the marriage between Ryan and Sara violate any laws? What happens to all of the joint property that Ryan and Sara acquired over 20 years? Is Amy entitled to that property as well? Are Ryan and Amy responsible for each other’s debts?

Ryan and Amy’s marriage will not dissolve on its own (despite the marriage having only been a couple years long), so their marriage was, and is still, intact. The subsequent marriage between Ryan and Sara is likely void because Ryan was married to Amy when he married Sara, therefore being married to more than one person at a time.

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No one wants to think about the aging process, let alone all the dangers associated with advanced age and living in today’s world. Education and planning are the two most important steps to preventing any type of issues in the future.

Senior financial abuse scams are a multi-billion dollar industry. This type of abuse not only effects the senior individual but also their families, their financial institutions, taxpayers and all the services that provide relief to the victims. A study was done in 2011 by Metlife Mature Market Institute and they estimated that the annual financial loss from senior financial abuse was 2.9 billion dollars! That number was based solely on the cases that made it to the media.

Seniors are especially susceptible to fraud. This is because we tend to be more trusting as we age, we have more wealth accumulated by that time in our lives, and our worlds become smaller. Generally, Seniors do not have contact with a wide variety of people and become secluded from the outside world. While this is a natural process that comes with age, it also provides opportunity for those who mean to cause us harm. All seniors are at risk for being targeted, but women account for the majority of these types of crimes. I am not convinced this will always be the trend but for now it is. That is due to the fact that women live longer than men, leaving them alone when their spouse passes, and elderly women in 2017 are from a generation where they are used to relying upon others in their lives to help them make important decisions.

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We speak with people weekly who have been mistreated, are angry and want to file a lawsuit. The concept of sticking up for yourself and fighting back  just feels right – and it often is right!  There does come a time when filing could be harmful to you. It is important to know when to file a lawsuit and it is also important to know when not to.  A lawsuit is an important, indispensable legal tool.  It will resolve a dispute where all other solutions have failed.  But lawsuits have limitations.  It is possible to win a lawsuit but still lose because the cost of the lawsuit exceeds any possible recovery.

Below is the analysis we discuss with our Clients before filing a lawsuit:

  1. Is there a good claim? This requires learning the facts and researching applicable law.
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Arizona is a community property state. “Community property” is a term that  refers to how the property, during a marriage, is viewed in the eyes of the courts. In community property states all property accumulated by a husband and wife during their marriage becomes joint property. In plain terms, this means that all property belongs to both husband and wife equally if it was acquired during the marriage. Even if it was originally acquired in the name of only one partner.

Conversely, all property acquired before marriage, or through a gift or inheritance during marriage, is presumed to be the sole and separate property of the spouse who has acquired the property.  As with anything in law, there are exceptions, but this is the general rule.

The character of property as community or sole & separate can be important.  For example, if spouses divorce, each will retain his or her sole and separate property just as if they had never been married.  Any community property will be divided equitably. Equitably does not always mean equally. However, an “equitable” division of assets means a fair division.

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Arizona law provides penalties in the form of substantial statutory damages plus awards of costs and legal fees for recording false documents under A.R.S. §33-420. Pertinent provisions of this statute are as follows:

  1. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.
  2. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he willfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.
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Like everything else you own, your business is an asset. When contemplating divorce, you will be required to equitably divide your community interests in any assets acquired during your marriage. This includes your business.

However, equitable division does not necessitate that every single item be split in half. Rather, Arizona follows the aggregate theory of community property meaning that each of you will receive a share of the assets which will be equal in value, but not equal in kind.

To determine what will happen to your business you need to consider several things. First, did you make any agreements or plans for this eventuality? Perhaps you and your spouse entered into a pre- or post-nuptial agreement which specifies what happens to the business. Or, perhaps the business itself has agreements in place detailing what occurs when one or more owners divorce. These documents should be reviewed closely.

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Reverse mortgages can be a great financial tool for retirees or others living on a fixed income. A reverse mortgage can be used to pay off an existing home loan, gain freedom from a house payment and/or provide a retirement income source. The homeowner must still pay real estate taxes and homeowner’s insurance but otherwise no payments are due on a reverse mortgage until the borrower spouses both die. Then the loan comes all due and must be paid in full by refinancing, the use of other estate assets or by a sale of the home.

But what happens when the reverse mortgage is taken out by only one spouse?   If the surviving spouse is not also a borrower, he or she may need to sell or refinance the house when the borrower spouse dies. Refinancing is not usually an option for a surviving spouse so the family home would need to be sold at, perhaps, the worst possible time.   At least that was the situation until the advent of an FHA program called Mortgagee Optional Election (MOE).

The MOE program can enable a surviving spouse who was not a reverse mortgage borrower to remain in the family home after the borrowing spouse dies.   But inclusion in this program is not automatic. The surviving spouse needs to contact the mortgage servicer to request an MOE assignment. Certain conditions also apply:

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Most people who buy homes will remember one thing about the experience – the paperwork. Seriously, you get major hand cramps just signing all those title and loan documents. Trying to understand all those documents? Even worse.

Well, here comes TRID to the rescue – sort of. TRID stands for TILA-RESPA Integrated Disclosures. These new disclosure documents are, for the most part, replacing the old disclosures. We say “for the most part” because TRID does not apply to home equity loans, reverse mortgages, and mortgages for mobile homes or other dwellings that are not actually attached to real property. TRID will apply to most other real estate loans, including Fanny Mae, Freddie Mac, VA, FHA, USDA and other government-backed and conventional loans. TRID will even apply to private money loans and some owner-financed transactions.

The new TRID Loan Estimate form replaces the initial Truth in Lending Disclosure & Good Faith Estimate. The new TRID Closing Disclosure form replaces the final Truth in Lending disclosure & HUD-1 Settlement Statement. These forms contain much of the same information as the old ones but lays it out differently so it is easier to digest.

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As a result of the national real estate crisis many Phoenix and Arizona homes remain underwater. The recovery has helped, but not enough to lift all homeowners into positive equity territory.

It has come to our attention in speaking with clients that many times people have ceased payments on a second deed of trust. Usually this was done as a matter of necessity to reduce living costs.   A loan secured by a first deed of trust must be paid or the home will be foreclosed upon.   However, a holder of a second deed of trust will seldom foreclose on an underwater property. So payments on the second loan can be stopped and often were stopped to obtain short term relief.

It is now eight years since the housing crash and we are finding individuals who have deeds of trust recorded against their homes where no payment has been made for years. In many cases, their homes are still underwater. If the old deed of trust could be eliminated, it could make the difference between having an underwater home or a home with substantial equity.