Randy B Birch – Attorney at Law

It is recommended that estate plans and documents be reviewed at least every five years. Review should also be made more frequently whenever your personal circumstances change. Estate Plans created earlier than 2004 should absolutely be reviewed. The following is a summary of the changes to both tajavascript:void(0)x and non-tax laws over the last five years that may require changes to your estate plan.

By Bruce W. Shand, guest writer
Bruce’s practices focuses on estate planning and tax related issues. He can be contacted at bwshand@earthlink.net.

Your friend and mine, the Internal Revenue Service, has issued a new
“Construction Industry Audit Technique Guide” for those working with builders, etc.

The guide provides an overview of the industry including a glossary. Discusses types of contracts; types of contractors (large, small, home builder); change of accounting method; and joint ventures.

Certain contracts are called “unconscionable.” These are contracts that are unfair or one-sided. Courts generally will refuse to enforce such contracts. Whether or not all or part of the contract is unconscionable depends upon the circumstances surrounding the making of the contract. It is not enough that the contract seems or even is unfair. A Utah case, Lundstrom v. Radio Corporation of America, 405 P.2d 339 (Utah 1965) illustrates this concept. In Lundstrom, buyers paid an average of $200.00 more for color television sets than the manufacturer’s suggested retail price. The Court pointed out that no one had forced the buyers who were trying to get out of the contracts, to sign the contracts. The excessive price of the sets had nothing to do with the legality of the contract. Just because the contract after the fact does not seem fair, the parties may still be obligated under its terms.

The Illegal Immigration Bill (SB 81) takes effect on July 1, 2009. Some of the provisions that are applicable to employers, particularly contractors, are summarized as follows:

Public Employers must use E-Verify(1)
- All public employers must participate in the Status Verification System (E-Verify) to verify work eligibility status of new employees.
- Contractors and subcontractors contracting with public employers must also register and participate with the E-Verify System.

Employers cannot replace workers who have legal residency with undocumented workers
- It is “unlawful” to discharge a lawful employee while retaining an undocumented worker in the same job category.

Transporting and harboring an undocumented person is a Class A Misdemeanor
- It will be illegal to “transport into this state or for a distance of 100 miles within the state” a person illegally in the U.S. if:
o You know or should know that the person is undocumented, and
o You do it for “commercial advantage or private financial gain”
- It will be illegal to “conceal, harbor, shelter from detection” a person residing illegally in this State if:
o You know the person is undocumented, and
o It is for commercial advantage or private financial gain.

(1) E-Verify is a free and simple to use Web-based system that electronically verifies the employment eligibility of newly hired employees. Click here for a summary and guide on getting started. To sign up, click here.

This summary is taken from a newsletter from the Office of Diversity & Human rights, Esperanza Granados.

Q: I did some development work on a parcel of land owned outright by 3 individuals. My agreement with them was to be paid once the property is sold. I have put a Notice of Interest on the property in order to assure my payment at closing when they sale the property. Is this legal and do I have the right to hold up any sale or refinancing of the property.

A: Why didn’t you file a mechanic’s lien? It would have provided you the protection without issues. Then if they do not pay and you have to sue, you are entitled to attorneys fees. See a number of posts at http://utahconstruction.blogspot.com/

The statute authorizing notices of interests (NOI), provides that they are allowed as provided by other statutes, or if there is something signed by the owner authorizing you to file a NOI. If you have something in writing that authorizes you to file it, great; otherwise it is probably invalid, except as you can argue it is the equivalent of a mechanic’s lien (authorized by statute).

Hope you get paid and do not have to argue about it!

Q: We recently sold a mobile home. We were willing to work with the people buying it. We took a down payment and wrote up a contract for the remaining amount due (this includes our original deposit that we let the buyer take to pay the first months lot fee) The deposit was written into the contract. They agreed to make monthly payments. When the first payment was due – it was 6 days late. The next payment was over 20 days late, and has not been paid yet. Do we have legal grounds for eviction with no money paid back to the buyer? We do still hold the title to the mobile home, to be transferred when the loan amount had been satisfied.

A: Your rights are governed by the contract. Selling a mobile home is more like selling a car than real estate. Without seeing that documents it would be foolish for me to try and opine as to your rights. Hopefully the contract provides that upon default of a payment, anything they paid prior will be forfeited as damages and that you are entitled to evict them. Without such language in the agreement, eviction may not be possible.

Q: I loaned a friend money back at the beginning of 2008; he and I signed a promissory note saying it was to be paid back. He hasn’t made any payments or attempted to pay it back. How do I go about filing a claim. He lives out of state but I do know where to reach him.

A: If the loan was made in Utah, you can go ahead and sue in small claims court in Utah and he will either have to appear and defend or lose. Small claims court has limits up to $10,000. For posts on Utah small claims court see my earlier posts on this blog. The more difficult part is collecting and you may have to register the judgment in the State where the “friend” lives in order to collect. Good luck

Q: My house, in Bountiful, Utah is in forclosure. I owe $, 30 yr. at %/annum. My credit isn’t very good at all; I am currently paying $1,150. per month. I haven’t paid for six months. I lost my job six months ago. I received ”intent to sell” letter in mail. Can I walk away with nothing to owe, or not. if so, how much? Also I own one acre land in another county. The auditor values it at $80,000. Will they come after my land? Can I protect it? I would rather keep land than house. What about a short sell? or renting house out. I have lived there over 2 yrs. what is the best thing to do?

A: Under Utah law a head of house is entitled to $20,000 equity in a residence that is exempt from taking by creditors; if married it is $40,000. You may be able to claim that exemption in the 1 acre lot. I do not know what is meant by the “Intent to sell” letter. The letter may be the lenders way of saying contact us or we will foreclose; if so, do it, as they may be willing to add the missed payment onto the end of the loan, etc.

If the lender forecloses, they have 3 months within which to file suit for a deficiency. That would be where the house is worth less than the amount owed.

I suggest you speak with a bankruptcy attorney, as they may be able to help you keep the house.

Between moving my full time office from Salt Lake to Heber, renovating a small home I am trying to sell in Salt Lake before the next mortgage payment is due, and my son getting married this weekend, I have not been very diligent about posting collection or construction comments on the blog – bear with me, we will get better!

Question: We live in Utah and have put our home up for sale to avoid foreclosure. We recently found out that when our realtor ran a preliminary title report that there was a notice of default recorded. We have been keeping in contact with our bank and thought they were working with us on getting our home sold. We had no idea of this default being recorded. Is this legal or are they suppose to send us a notice of default?

Answer: Once the loan is in default and the Lender has decided to move past telephone calls and letters requesting payment, the first step in the process is for the Lender to file a “Notice of Default.” They will send it to the Debtors at the address on the Trust Deed by certified mail, return receipt requested – that is the law. If they do that, even if the debtors do not pick it up or have moved, the Lender is deemed to have complied with the law and the foreclosure process can continue. The Lender must then wait 3 months during which time Debtors have an absolute right to cure the default and continue with payments. If the default is not cured within the 3 months, the Lender must then schedule a Sale, which by the time the Lender post the notices at various locations as required, and publish it in a newspaper for 3 consecutive weeks as is required under Utah law, it will probably be at least another month. While the Lender can take agree to wait, postpone or delay to give you additional time to cure the default, this minimum of a 4 month process cannot start until the Notice of Default is filed.

When I am advising lenders, I advise that they start the process shortly after the default in payments or performance, because while they can always delay it after they start, they cannot expedite it if negotiations, short sale, etc falls through.