As a means of giving more homeowners the chance to take advantage the Home Affordable Modification Program (HAMP), the Obama administration has extended the program through December 2015, two years past its expiration date of December 2013.

What is the Home Affordable Modification Program?

HAMP is part of the larger Making Home Affordable Program, which was designed to help millions of homeowners avoid foreclosure. The program, which was introduced in 2009 as a response to the financial and housing crisis, functions by modifying the loan terms and making the payments more affordable. The U.S. Treasury reports that homeowners who participated in the program saved a median amount of $546 a month.

How Does HAMP Work?

In order to get a mortgage modified under HAMP, the lender reviews the financial status of the borrower, using a Net Present Value Test. The lender then determines the window of interest rates available to them. Most home loans are owned by Freddie Mac or Fannie Mae and their insurance rates floor and ceiling can be found online. Once the range of interest rates have been determined the lender goes through a series of waterfall tests. The first test attempts to reduce the monthly payment to no more than 31% of the borrower’s income. If this can’t be accomplished while keeping the interest rate within the available range, the lender goes to the second waterfall test, which extends the mortgage out to 40 years. If the calculated interest is still not within the range of interest rates, the lender goes to the third waterfall test: applying principal forbearance. This means that some of the principal amount of the loan is not charged interest. The goal for the lender is to minimize the amount of principal forbearance without lowering the interest rate too much.

Adjusting the interest rates through this series of tests can give some relief to homeowners, but only if they participate in the program.

Why is HAMP being Extended?

Originally the government predicted that somewhere between 3 and 4 million homeowners would take advantage of the program. However, to date, only about 1.1 million have participated. One of the chief reasons for the low participation rate is the difficulty of applying and receiving assistance, particularly in producing required documents. However, the new, extended HAMP has been streamlined to induce more homeowners to participate in the program. While the national housing market is gaining steam, many homeowners are still at risk for foreclosure and the extension of the program will give them an opportunity to modify their mortgage rates.

Is HAMP Right for You?

Even though HAMP has been streamlined to help homeowners as quickly and efficiently as possible, it is still a complex process. HAMP is largely driven by the lenders, who can be difficult for individual homeowners to deal with. In order to successfully modify a mortgage, homeowners should consult a professional. The attorneys at Albuquerque Business Law can help you get the most out of HAMP and avoid foreclosure. Call or click today with any questions you have about refinancing mortgages and the Home Affordable Modification Program.

‘Property easements’ in a nutshell: At times, it may be required that one landowner use the property of another landowner in order to enjoy his own property.

In other words, you may need a property easement to use someone else’s land in order to access your own property.

For example, say you purchase a plot of land that is completely surrounded by land that’s not yours. In order to drive onto your land and enjoy it, you have to drive through your neighbor’s land. This type of shared land use is quite common and the law has created a tool to legally regulate it. This tool is called an easement.

Positive and Negative Property Easements

There are both negative and positive easements. Under a positive property easement agreement, one person is allowed to use the property of another for a specific reason, much like the landowner who can drive over his neighbor’s property to access his own land. In a negative easement, a landowner is prevented from performing a specific activity on his land, such as a homeowner’s association agreement that will not allow property owners to have trees above a certain height.

Public and Private Property Easements

Easements are further divided into public and private easements. A public property easement allows the government to use private property for a specific reason, such as building power lines over a private property. Public easements are generally created when the land is deeded to the property owner. For example, the government reserves the right to build access roads and pathways to a public beach when beachfront property is sold to private parties.

A private easement is an easement created between two private parties and, like a public easement, is usually established when the property is sold. For example, a ranch owner sells a portion of his ranch that isn’t connected directly to the nearby highway. The new owner would need a private easement to travel over the seller’s ranch to get to the new parcel of land.

Creating a Property Easement

Express Easements

Easements can be created in a variety of ways. The most common is an express easement, which means that the easement is specifically defined in the deed to the land. Express easements are generally straightforward and easily enforceable because the intentions of the parties are explicitly laid out.

Implied Easements

More complicated are implied easements, which are not stated in the deed but instead rely on tradition and the customary use of the land to establish the easement? Implied easements are more difficult to enforce because the court has to determine the intent of the parties by looking at a variety of factors rather than clear wording in the deeding document.

Implied Easements: Easement by Prior Use

One of the methods used to establish an implied easement is easement by prior use. A landowner can establish an easement by prior use by demonstrating that a single party once owned the land, the land was subdivided and that the use of the land occurred both before and after the sale. The landowner seeking an easement must also demonstrate that the easement is reasonably necessary and that notice was given. A good example of easement by prior use would be a landowner who used a dirt road to access a landlocked portion of his property and then sold the landlocked portion to a new owner who continues to use the dirt road to access the property. The new owner will likely be able to establish an easement by prior use because the dirt road was used before and after the sale to access the landlocked property.

Implied Easements: Easements by Necessity

Easement by prior use should not be confused with easement by necessity that, while sharing some traits, is different in how it functions. Easements by necessity are creations of the court, which examines the needs of the landowners and impose an easement to ensure the land is being fairly used. Because the easement is a burden placed on a landowner the court has to weigh the benefit to the landowner seeking the easement against the cost to the other landowner. This means that because easements by necessity arise out of a specific need to access the land, the easement will cease to exist if the necessity disappears. For example, if an easement by necessity is created to give access to a remote and landlocked property and subsequently an interstate is built that runs adjacent to the parcel, the easement would disappear because the need to cross over the land has been extinguished.

Legal Problems with Property Easements

There are a host of legal issues that can arise when dealing with easements. While express easements are generally more clearly defined, they can lead to disputes over the duration and dimension of the easement and disputes over interpreting the language of the document that created the easement. A poorly written deed can create confusing and contradictory easements that require professional help and negotiation to untangle and make sense of. These issues must be handled on a case-by-case basis as they are based entirely upon the language of the deed.

Disputes over implied easements can be much more difficult to resolve, simply because the terms of an implied easement are not clearly stated. Often the easement was created simply by using the land and was never considered from a legal perspective. This unguided creation of an easement, coupled with the lack of documentation can make determining the nature and dimension of an easement difficult. Prior use of the land, traditional and customary use, necessity and the intent of the grantor are all factors that must be taken into consideration. This requires a firm grasp of the relevant local laws and strong negotiating skills.

We Put the “Ease” in Easement

At Albuquerque Business Law our attorneys are well versed in the law governing easements.

We can help you protect your right to access land, as well as setup sound and well defined easements that will prevent you from getting tangled up in conflicts down the road. Call or click today to speak to our attorneys about any questions you may have about easements.

New Mexico Legislature that could affect your business. New Mexico legislators gather annually for either a 30 or a 60 day session – and generally stir up trouble and cause mischief!

Actually, our citizen legislature does a great job in most instances, and they work hard to try to do what they can to improve our statutory laws and state finances each year. But good or bad, of the hundreds of bills that are introduced, some of which die painful, quiet deaths in committees, others that die public, dramatic deaths in committee or on the floors of the respective chambers, there are dozens of bills that get through the process and become law.

Many of those laws in turn affect New Mexico businesses or business owners who operate in New Mexico. Albuquerque Business Law followed several bills during the session that we thought would affect our clients.

We have narrowed that focus even more and have selected 23 bills that emerged from the session that we believe will impact our clients and colleagues the most. We hope you find this synopsis informative and useful.

Many of those bills will be taking effect in the very near future. If you have specific questions about how these bills may affect your business in particular, please contact us to schedule a meeting with one of our attorneys to discuss the matter in greater detail.

ABL’s Top 10 Bills in New Mexico

HB 45 Transfer Insurance Regulation from PRC

This bill creates the Office of the Superintendent of Insurance as a standalone entity. This new entity is created by removing the Insurance Division from the Public Regulatory Commission and creating a new, independent agency. This action is in compliance with an amendment to the New Mexico Constitution, which aims at removing the regulation of insurance from the control of the PRC. The amendment takes effect on July 1st, 2013. The bill outlines the selection process of the Superintendent as well as the makeup of the 9 member council that forms the heart of the new agency. The OSI will continue to be housed with the PRC for the time being but may need additional funding in the future if the agency decides to move away from the PRC.

The creation of a separate entity that deals exclusively with the complex field of insurance is intended to make the process of regulating insurance more efficient and more insulated from politics. Opponents of the bill feel that it excludes the voters by allowing the legislature to fill the position of Superintendent and the Council. By signing this bill New Mexico joins 35 other states that have an independent regulatory agency devoted specifically to insurance.

HB216 Fair Pay for Women Act

This bill adjusts the damages available under the Fair Pay for Women Act (FPWA). It clarifies that injunctive relief is available under a FPWA action and places treble damages in the same category as damages for unpaid wages, damages from retaliation and all other actual damages. The bill also allows courts to not allow treble damages when the defendant can show that they acted in good faith and with a reasonable belief that the act or omission that led to the lawsuit did not violate FPWA.

The financial impact of this bill is uncertain. It may lead to increased costs in litigating, defending and paying lawsuits brought under FPWA. The Risk Management Division indicates that the potential for awarding attorneys fees, in addition to the widened availability for treble damages will lead to a greater cost in FPWA actions.

HB238 NM Chile Advertising Act Violations

This bill allows greater freedom for the NMDA to regulate violations of the NM Chile Advertising Act by requiring that green chile not a product of New Mexico to be prominently labeled.

The bill also further refines the NM Chile Advertising Act by excluding growers who produce less than 20,000 pounds annually from the Act. The financial impact of the bill are not certain, however, the intent is to give a preference to chile grown in the state and to preserve NM chile as a unique product of New Mexico.

HB279 Solar Collector Rules for Permits

This bill amends the rules governing construction standards for solar collectors. It allows the Regulation and Licensing Department (RLD) and the Construction Industries Division (CID) to create rules and standards for solar collectors. This will create a more uniform set of standards for solar collectors, replacing the more general guidelines currently in place which have led to a lack of uniformity in the quality and standards of solar collectors. The CID will also create a uniform permit for all solar generating equipment 10K and smaller. This will allow general electrical contractors to work on solar generators statewide, increasing the ease of utilizing solar power and lowering the cost of maintenance.

HB641 Film Production Tax Credit Changes

This bill makes several changes to the tax code. It phases out the hold-harmless distribution to municipalities that offset the food and health care practitioner deductions over 15 years. It lowers the corporate income tax rate between 2014 and 2018 for incomes greater than $500K (6.4% to 6.2%) and greater than $1M (7.6% to 6.6%). It also modifies the provisions governing high wage job tax credits by tightening definitions and requiring application for the credit within one year of the taxpayers final qualifying period ends. The bill also expands the film credit cap from $50M to $60M because the credit for 2013 is not likely to be used to capacity.

The reduction of the Corporate Income Tax is intended to remove a barrier to economic growth and to make New Mexico a more attractive option for business investments. The film tax credit shift is intended to move towards a multi-year model more accommodating of television productions that tend to stay in state longer.

SB35 NO Conviction for Certain Motor Offences

This bill provides that citizens cited for no driver’s license, proof of insurance or vehicle registration will not be convicted under 66-3-1- NMSA 1978 if they produce evidence of compliance in court. This bill will mitigate confusion by law enforcement by making a violation of 66-3-1 a misdemeanor. It will also expedite court proceedings for both defendants and law enforcement. It will also result in a small decrease in administrative costs.

SB81 Liquor Tax Microbrew Volume Limit

This bill changes the tax scheme for microbrewers by taxing 8 cents for the first 10,000 barrels and 28 cents for any barrels up to 15,000. The bill also defines a “microbrewer” as a brewer who generates less than 15,000 barrels of beer annually. This bill is designed to grant incentives to microbrewers and grow a local industry as well as encourage the importation of out of state microbrews.

SB101 Energy Conservation Bonds

This bill requires that the monetary dispensation of Energy Conservation Bonds be overseen by the State Board of Finance. It also defines large local government as a municipality or county with a population over 100,000 as well as any tribal government. This is significant because the American Recovery and Reinvestment Act of 2009 which created qualified energy conservation bonds, requires that the bonds only be distributed to large local governments.

The bill also requires that all qualified energy conservation bonds be used for qualified conservation purposes, which includes certain clean and renewable energy expenditures, research projects relating to energy conservation, mass commuting facilities and public education campaigns. The bill also excludes large local populations from the calculations of the population of individual counties when determining the allotment of bonds. Therefore, the population of Albuquerque would not be considered when determining the amount available to Bernalillo County.

SB107 Uniform Real Property Transfer on Death

This bill repeals the statutory provision for transfer on death deeds (NMSA 1978 § 45-6-401) and replaces it with the Uniform Real Property Transfer on Death Act, which was drafted by the National Conference of Commissioners on Uniform State Laws and has been adopted by several states. Both the old and new law allow a transferor to revoke a transfer on death deed during the transferor’s lifetime by recording a later executed revocation or conflicting transfer on death deed. This bill clarifies and explains the process of creating and revoking transfer on death deeds and also clarifies the rights of beneficiaries and joint owners. The bill also provides a FAQ section explaining the bill in lay terms.

This bill is significant because it’s working towards recognizing a new class of nonprobate transfer of personal property at death known informally as “will substitutes”. As will substitutes continue to become more common it is important to provide a straightforward, inexpensive and reliable means of transferring real property directly to a beneficiary. This bill, in clarifying the Uniform Real Property Transfer on Death Act, expedites the workings of this expanding alternative to traditional wills.

SB146 Uniform Commercial Code Secured Transactions

This bill further clarifies various definitions in the New Mexico Uniform Commercial Code such as the perfection of security interests, control of electronic chattel paper, discharge of account debtor, restrictions of assignments of promissory notes, the required content of financial statements, filing procedures for secured interests and the collection and enforcement of a secured part. The bill amends NMSA 1978 § 55-9-521 (dealing with the form of financing statement and amendment) and adds nine new sections to the UCC- Secured Transactions.

The bill becomes effective July 1st, 2013.

Other Bills of Interest in New Mexico

SB159 Civil Case Reciprocal Attorney Fee Awards

This bill would have amended SB 159 which allows a court to award reasonable attorney’s fees as part of the cost to a party that prevails in any civil action commenced on or after July 1st, 2014 when the action is based on a promissory note, written contract or other writing that allows at least one party to recover attorney’s fees.

The amendment would have clarified the legislation by indicating it applied to promissory notes or contracts signed on or after July 1st, 2014. The bill faced a potential legal challenge on the grounds that it could be construed as the state attempting to modify contracts. However, the bill was pocket vetoed and whether or not attorneys awards can be granted based on SB 159 and promissory notes and contracts remains ambiguous.

SB340 $10 Million Minimum Design & Build Projects

This bill eliminates the $10M maximum allowable construction cost threshold for design-build construction projects. This will allow central purchasing offices to utilize the design-build procurement process for projects between $00K and $10M, allowing smaller and smaller and less complex projects with less risk to the owner to use the design-build procurement method. Therefore small business owners involved in architectural, engineering and construction related activities will benefit.

SB341 Building & Remodel Contract Threshold Amount

This bill raises the limit for the Board of Finance approval of construction contracts for the Property Control Division from $500K to $5M. The bill also eliminates the requirement that the Property Control Division report or notify the Board of Finance of executed construction contracts that fall below the new threshold amount.

The General Services Department notes that the previous requirement of notification from the PCD to the BOF is unnecessary because the legislature has already appropriated the funds and the Procurement Code was followed to secure the vendor and that the process would be streamlined by eliminating this requirement.

SB 497 Homeowner Association Act

This amendment to the Homeowners Association Act modifies language in the Act regarding the inclusion of “lot owners” as potential board members and officers.

SB621 Public Utility Efficiency & Cost Recovery

This bill amends the Efficient Use of Energy Act § 62-17-(4-6) NMSA 1978 by changing the language to require public utilities to acquire cost effective and achievable efficiency and load management resources without requiring the utilities to acquire all such resources. The bill further clarifies that this requirement only applies to public utilities. Not forcing public utilities to implement all possible efficient energy resources allows for some flexibility for utilities to create their programs.

HB 85 Geothermal Resource Leasing

This bill simplifies the statutory payment scheme for geothermal leasing from the government and allows the State Land Office to create regulations encouraging the sustainable development of geothermal energy as a renewable resource.

SB8 PRC Commissioner Qualifications

This bill expands the requirements for the Commissioner of the Public Regulation Commission by requiring 25 hours of continuing education credit in relevant field annually. It also grandfathers in current commissioners who do not meet the new requirements.

SB14 Extend Sustainable Building Tax Credit

This bill more clearly states the legislative intent of the tax credit and requires a report to the legislature every five years that fully analyzes the efficacy of the credit.

SB160 Biodiesel definition

The amendment to this bill alters the definition of biodiesel, adding the phrase “mono alkyl ester” to the definition. The original bill removes the double tax on special fuel delivered to New Mexico as a means of aligning the state with technological changes throughout the country as a means to spur economic growth in the state.

SB176 Subdivision Act Definitions

This amendment to a bill modifies the definition of subdivision by in the New Mexico Subdivision Act by eliminating the required condition of a second sale, lease or conveyance. However, it retains the requirement that after a sale, lease or conveyance a survey is filed with the county clerk within a five-year period.

SB192 Surety Insurance Contracts Compliance

This bill clarifies the language of NMSA 1978 §59A-31-1 by explicitly stating that surety contracts will be subject to the terms Article 5 (relating to company licensing and certification). Surety contracts already fell under these provisions, so this bill simply clarifies existing law.

SB205 Real Estate Appraiser Licenses & Brokers

This amendment to a bill provides greater detail regarding a real estate brokers responsibility related to offering an opinion on the value of the property.

SB249 Statewide Construction Inspectors

This bill further clarifies the Construction Industries Licensing Act as it relates to inspector certifications, particularly multiple certifications for a single individual. This is significant because allowing inspectors to be certified in multiple areas results in more efficient inspection times.

Again, if any of these bills have a specific impact on your or your business, and you wish to discuss further, don’t hesitate to contact us.

At Albuquerque Business Law, we help small businesses continue and strengthen their successes. For those who have suffered setbacks, we try to help get those businesses back on their feet. For others, we help them with the always-risky, always-grueling, always-expensive process of litigating disputes.

In those capacities, and over the years, I have found myself dealing with difficult or downright dishonest clients. They’re not always the same as sometimes difficult clients are quite honest, they just may have unrealistic expectations or communication modes that just don’t mesh well with the “treat others” maxims most of us were raised with. But some difficult clients are great folks underneath the gruff exterior, whereas this piece focuses on those who cross the line into dishonesty.

We’re not talking about the kid who steals a handful of candy and then dashes out the front door. We’re talking about the kind of dishonest client who can cause problems for a small business by ruining their reputation or damaging the business in less obvious ways.

How can you avoid dishonest clients?

How can a small business owner, or in our case, a professional services firm (a type of small business) be proactive in avoiding dishonest clients? And what happens if one discovers too late that a client has been deceptive?

In a nutshell, I am an attorney who specializes in the area of business law, and most of my clients are small business owners. Before focusing on the practice of law, I started various businesses in the renewable energy sector and served as an Army Officer. Throughout my experiences, I have been exposed to dishonest folks of every stripe, some more dangerous than others.

 In the legal profession, dishonest clients can exact a heavy toll in terms of not only financial exposure, but also risks damage to the attorney’s reputation. Reputation is much of what any professional is really selling. In short, dealing with a dishonest client is never worth the cost.

 The most damaging type of dishonest client is typically fairly sophisticated. They wish to use the professional’s credentials to either further their dishonest aims, or cover past artifice.

Let me offer various types of examples:

In my experience, a common theme for dishonest clients are the ones who believe they have been wronged by others. Typically, this client has been sued and is then forced to retain counsel. They usually have logical and detailed explanations for why they have been wrongly accused of negligence, breach of contractual obligation, or in more extreme cases, fraud, dishonesty, or breach of fiduciary duty (a heightened obligation).

Dishonest clients often seek out younger professionals who they think they can more easily manipulate or whom they are forced to retain after they have been sent packing by more experienced attorneys.

 In the beginning, and without the benefit of experience, the professional may adopt the client’s viewpoint and defend the client. But often, the client’s story starts to develop holes, which may be ignored in the beginning. Certain documents that should be in place are missing. Key issues boil down to he-said/she-said disputes on which your client lacks credibility. Your client’s explanations for certain actions just don’t make sense.

In the more extreme examples that I have experienced, the client begins to tell YOU things that simply are not true. The client says they have paid vendor X when they haven’t. The client says they have mailed you a document that never arrives. And almost always, the client is behind on paying you for your services.

You find yourself expending your business’s resources and working hard for a client that takes you deeper into a financial hole.

Most litigation attorneys can relate to the experience of sitting through their client’s deposition and being painfully educated on topics the client failed to tell them. Eventually, the dishonest client turns on you, especially as you start to call them out on their pattern of playing fast and loose with the truth.

They start to question your actions and “armchair quarterback” your judgment to cover their own deception. At some point, you terminate the client, thousands of dollars in the hole, after having damaged your own reputation for championing their cause for too long.

Another hallmark of the dishonest client is drama.

There is always drama. They can’t make it to their deposition because their uncle died…again. Or their child is in the hospital. Or they have a migraine.

In many cases, the drama is so predictable and outlandish that it becomes almost comical. But the professional must make sure that the joke is not on them in the eyes of their colleagues, the courts, and especially with respect to disciplinary committees.

 In terms of avoiding such clients, there is no better guidance than this: trust your gut.

It may sound like a clique, but if your trusted employees are rolling their eyes, or telling you not to work for a client, it’s your biggest red flag. As an inexperienced young professional, you may look back and identify several flaming red flags that you ignored, reaching for some explanation as to why it wasn’t an issue.

If you know you have a weakness for such clients, then trust your colleagues, partners and your staff. Ask them what they think. If you have failed to trust your own gut, then trust theirs.

And my final grain of wisdom:

Walk away early. You’ll thank yourself later.

Trade Secrets and Utility Patents can work hand-in-hand to ensure companies the broadest possible protection – and increase your company’s value.

This is especially true in software patents. In software utility patent applications, the method of the application can be patented. Then, trade secrets can be implemented to protect the source code.

In the patent application you do not disclose the source code, only what it does. For example, in many software applications, you are essentially patenting a black box function whereby data is inputted into the system, the system transforms that data, and an output is given.

The system that transforms the data is the inventive step and therefore the valuable part of the invention. By protecting it via trade secret instead of a patent, you are able to protect it indefinitely so long as you take certain steps to keep it a secret.

Please see my blog post on Trade Secrets.

One of the main drawbacks with trade secrets is that others can legally reverse engineer them.

But, by obtaining a utility patent and a trade secret, you are limiting that fear. It may happen that someone comes along and reverse engineers the source code, but they will not be able to use that source code in the patented process. Thus, unless that source code has some other unrelated application, they will not be able to do anything useful with the source code.

So, by protecting the method and the source code, you are obtaining the broadest possible protection. I have seen many inventors federally copyright their source code. In some cases that may be a good idea, but in many cases, I think it is much more valuable to implement a trade secret.

By federally copyrighting something, you have to disclose what you are copyrighting and it becomes public record. Additionally, a copyright does not necessarily afford the holder with much protection. A copyright only protects the expression of ideas, not the underlying ideas themselves. This means that someone could potentially come along and change the copyrighted source code and still achieve the same result. But, with a patented process, you can prevent that. Also, remember that copyrights are automatic upon completion. The main upside to federal registration is that it allows you to sue for copyright infringement. And if the infringement occurs after you have federally registered the copyright, the statutory damages are very high.

See my blog post on copyrights.

Before deciding how to proceed with any intellectual property, it is important that you contact an attorney.

I’m not just saying that because I am an attorney, either. After understanding your goals, cost constraints, and other concerns, an attorney can prepare an intellectual property protection plan that will benefit you and your company in the future. This plan may include copyrights, trademarks, patents, trade secrets, or any combination of those. Most often, companies need a combination to best protect their intellectual property because any single one of these will not provide the desired level of protection.

Well-prepared and well-instituted intellectual property can be the backbone of any company and can increase the company’s value exponentially. By investing in your company’s intellectual property, you are investing in the future success of your company.

Albuquerque Business Law’s savvy traveling attorney Patrick Griebel tells us what he takes along and what he leaves behind.

Traveling with Technology? Lawyers are traveling with an ever growing number of gadgets, leading to crammed pockets, overloaded briefcases and security hassles.

Lawyers in our office use technology extensively, especially when traveling. Much depends on the systems and platforms that support the office, and whether they are “remote friendly.”

Our office decided very early on that remote access and functionality was paramount, and as a result, all of our platforms include two servers which support the mobile attorney including Sharepoint, Outlook, and our office accounting software.

When traveling, I use a laptop in conjunction with my iPhone 5. The iPhone is equipped with a “personal hotspot” which, depending on the access, is good enough and fast enough to access our firm server dependably. All of this fits in one small briefcase which can be carried on quickly and easily with no delays at the airport.

Most airlines offer wifi on flights, which means what used to be “down-time” on a plane can be used to continue corresponding with staff, other attorneys in the firm and opposing counsel on cases. The upside for the client is that if I can work on another matter while traveling, I do not then bill the client for for travel time.

The old rationale of “I can’t really work on anything else” is out the window.

Even without wifi, if I know what matters I need to work on and have a fast connection at a hotel or coffee bar, I can drop the entire file on my desktop and then re-sync it again later with any additional letters, notes, etc.

The “strangest” thing I travel with is to some a throwback, but we use it with a 21st century twist: a Dictaphone, or these days, MP3 recorder. While traveling, I dictate letters, briefs, position statements, and upload them to the “task” menu on Sharepoint. Our transcriptionist can be working on letters and briefs while we are traveling from city to city, but the turnaround time and quality are unparalleled.

That said, I have gotten a few awkward stares on planes trying to quietly dictate a memo or letter!

Foreclosures Rates have declined nationwide. The number of completed foreclosures (that is, the “total number of homes actually lost”) has fallen nationwide from 72,000 in November 2011 to 55,000 in November 2012 according to the latest foreclosure report from CoreLogic.

From October 2012 to November 2012, the number of foreclosures fell from 59,000 to 55,000. Another way of measuring the foreclosure problem in the United States is to use the number of foreclosure filings, that is, the number of default notices, scheduled auctions, and bank repossessions. It is this measure that is used by the much-cited RealtyTrac Foreclosure Market Report, which was released Jan. 17. That measure indicates a 2012 total of 2,304,941 filings. According to a RealtyTrac press release, “1.39 percent of U.S. housing units (one in every 72) had at least one foreclosure filing during the year, down from 1.45 percent of housing units in 2011 and down from 2.23 percent of housing units in 2010.”

Explaining the nationwide trend, Anand Nallathambi, president and CEO of CoreLogic said, “The continued fall in completed foreclosures is a positive supply-side contribution in many regions of the U.S.,” said. “We still have a long way to go to return to historic norms, but this trend is firmly in the right direction.”

Mark Fleming, an economist for CoreLogic, cited the increased popularity of short sales as a disposition method, in addition to the housing market’s “ongoing ability to absorb the distressed sales that result from completed foreclosures.” A short sale is when a homeowner makes an agreement with the bank to in effect sell the home back to the bank for the price it would get on the open market, even though that number is less than the amount of debt secured by the home.

New Mexico Foreclosure Rates

Out of Non-Judicial foreclosure states, New Mexico had the sixteenth highest number of completed foreclosures (2,263) for the twelve-month period studied by CoreLogic. Its foreclosure inventory was 3.1%, down .2 percentage points from a year ago. The RealtyTrac report also indicates that New Mexico foreclosures slowed from 2011, with the number of foreclosures in December, the busiest foreclosure month, dropping from 933 in 2011 to 950 in 2012.

The rate for the fourth quarter of 2012 dropped to 1,989, from 2,570 in the previous three months, and down from 2,752 in the final quarter of 2011. The rate is approximately the same as it was in the third quarter of 2009, before the peak in 2010, which may indicate New Mexico is beginning to recover from the foreclosure crisis.

In general, the New Mexico foreclosure rate tends to change more from month to month because of the fact that New Mexico is a judicial foreclosure state, and foreclosure processes are more stop-and-go than in non-judicial foreclosure states. On the whole, judicial foreclosure states tend to have a higher number of homes at some stage in the foreclosure process, as the process takes more time to complete because banks must file a foreclosure action in district court.

What Actions Have Been Taken to Slow the Rate of Foreclosure in New Mexico?

There is talk of neighborhood stabilization funding, which would, according to its proponents, slow the foreclosure rate in New Mexico and help raise home values again. Senator Jerry Ortiz y Pino backs this measure.# In addition, the Mortgage Fair Foreclosure Act, pre-filed as SB1 and sponsored by Senate Floor Leader Michael Sanchez, will be on the floor at the 60-day legislative session this year. The bill has been introduced before, to no avail. It was written with help from State Attorney Gary King. The Act “would assist negotiations between homeowners and mortgage holders to avoid foreclosure. It would give homeowners reasonable notice 30 days prior to the loss of their home, and offer an opportunity to explore ways to stop foreclosure, such as a loan modification. It also would force negotiations to be held with either the bank or mortgage servicing company, but bar the bank from foreclosing if the homeowner has made an agreement with the mortgage servicing company.”

What Can Attorneys Do to Help Clients Facing Foreclosure?

Of course, attorneys play an important role in helping people facing foreclosure navigate this controversial and ever-shifting legal landscape. A lawyer can help you decide whether a loan modification, bankruptcy, or short sale is the best option for you. Unfortunately, many law firms will push clients away from short sales because loan modifications and bankruptcies are more labor-intensive and thus result in higher attorney bills, when from the homeowner’s perspective a short sale may be the least costly option.

However, each foreclosure situation is different and should be resolved with careful attention to the homeowner’s particular circumstances. Once you choose a course of action, a lawyer can guide you through the process until the matter is resolved and you can get on with your life.

The first step for anyone with an invention or idea is to perform a prior art search and analysis in order to determine whether or not it’s already been done before.

Patent infringement review is a thorough prior art search and analysis, and is critical before proceeding when you have an invention that you’re looking to implement or license. By searching patents, as well as articles and other resources, you are able to determine what else has been invented that is similar, or the same, as your invention. Importantly, a patent allows the holder to exclude others from making, using, selling, offering for sale, or importing the patent device for the term of the patent. Thus, even though you may have never seen or heard of anyone using the invention, that does not mean that it has not been patented.

A Patent Infringement Review Will Determine How to Move Forward

Importantly, a thorough prior art search and analysis will indicate whether you should proceed with your invention, or whether you should stop right there. Additionally, if you’re looking to license technology, a thorough prior art search and analysis will allow you to make an informed decision on whether to license the technology. Many times a prior art search will yield similar patents. An experienced patent attorney is able to go through the patents and determine the differences and similarities between the patents.

Sometimes, to inexperienced practitioners or inventors, a patent will seem identical to the current invention. However, many times there are key distinctions between the two inventions, and although the two inventions seem similar, they are different enough to warrant two separate patents. Additionally, by understanding the prior art, an experienced patent attorney is able to craft the patent in such a way as to not infringe other patents while claiming the broadest possible protection.

Prior Art Search and Analysis Can Save You Money

The patent process is not cheap, and it takes a very long time (3-5 years). A prior art search and analysis by an experienced patent attorney can be invaluable. Besides potentially saving thousands of dollars in patent costs and fees if the invention has already been patented, the prior art search and analysis will also give you something to hang your hat on while the patent is pending. An opinion by an experienced patent practitioner can hold a lot of weight when looking for investors while the patent is pending.

Sometimes, the prior art search will produce expired patents that cover the same, or substantially the same, invention. If that is the case, you may have the ability to market and commercialize the invention, but you would not be able to patent the invention.

Avoiding Patent Infringement

It is vital for inventors and companies to know exactly what is out there in terms of prior art before attempting to patent, commercialize, or license intellectual property. Not performing a prior art search can result in thousands of dollars spent trying to patent an invention that cannot be patented, not to mention the potential of infringing on another’s patent, which can result in hundreds of thousands, if not millions, of dollars in damages.

It’s better to spend a little more money upfront and perform a thorough prior art search and analysis as opposed to investing blindly. For help with your prior art search, call the Intellectual Property Attorneys at Albuquerque Business Law or send us a message by using the form on the right.

Property law is a Pandora’s box filled with ancient “rules” inherited from our siblings across the pond and obscurities that we Americans have developed over the years. However, in all of this mess, somebody came up with the nifty concept of Quiet Title.

What in the world does that mean?

A short story would be the most appropriate introduction to the concept.

Let’s imagine a house. A big house, with some land that has a creek running through it, some grazing area for a small herd of cattle, maybe a wooded section, etc. At any rate, this place has enough property to warrant a variety of legal problems.

Now, let’s say that you’re fortunate enough to decide to buy this house and land. Your happy family moves into their nice new place with plenty of room to roam around. However, as the days go by, you realize that this property has had a lot of eyes on it for the past few years.

The fences were built many years ago, and most have deteriorated almost beyond recognition. As a result, one of your neighbors has been letting his herd of cattle wander around and graze on the edge of your land. Another neighbor has been chopping down a few trees a year around the area and you’re sure there are quite a few cut down on your own property.

You’re sure from the last survey that you own both sides of the creek , but one of your neighbors has begun building a small chain link fence on the far side, seemingly to keep his dogs from getting into the water. Either way, you’re not too comfortable with how comfortable your neighbors are with your land, and you’re worried they’re unaware of the true boundaries.

Hey, where exactly are the those boundaries?

After a few casual conversations with the neighbors, you realize that they’re much more interested in your land than you thought. A couple have even started talking to lawyers to figure out how they can get a piece of your pie. You’ve made up your mind, it’s time to talk to a good lawyer and see how to claim what’s yours.

This is where Quiet Title comes into play. Your neighbors scheming about your land can be noisy and Quiet Title helps to quiet their interests in your property. This requires the courts to go through and dismiss any claims against your property that are baseless or improper, removing the cloud of litigation that may be hovering over your property. This falls into what may be called “preventative law.” Though the claims against a property may not be in full-scale litigation, a Quiet Title claim can bar these claims to ensure that you won’t have to invest in expensive litigation defense.

So this is only useful if I have lots of land and greedy neighbors?

Not at all. Quiet title has become a hot topic over the last five years, not because of fences and rivers, but due to the foreclosure crisis. A Quiet Title claim investigates any claims against the title of a particular property. During the infamous toxic mortgage crisis, this became a useful tool to investigate the trail of creditors claims against a property through each and every change of hands.

If a homeowner is worried that they may lose their home, a Quiet Title claim researches the path of the title from the original creditor to the current creditor. In order to have a successful claim against a property, there cannot be a break in the chain of ownership of that mortgage. As one might suspect, the careless lending practices preceding the 2008 crisis were not characterized with impeccable documentation. On many occasion, the conveyance of these mortgages to different lenders would be careless and ignore documentation required to establish a proper change of ownership. On other occasions, the conveyance of these mortgages would actually involve fraud or other improper business practices that could be unearthed through a proper title investigation.

Are you worried about the prospect of litigation involving your property?

A Quiet Title claim may be an instrument of preventive law that could help put your mind at ease.

If you’re involved in a foreclosure, or if you believe you may be involved in one in the near future, this may be an option for you as well. A qualified property law attorney can provide you with more information on the ins-and-outs of Quiet Titles, Foreclosures, and any other property litigation you may be involved in and help put your mind at ease regarding your home and your property.

Foreclosure is a broadly used term to describe various processes that share a common purpose –  the changing rights between a lender and a borrower.

Like so much of modern American law, the concept of foreclosure traces its roots back to English common law. In Feudal England, the relationship between borrower and lender was a power struggle, with the scale weighing firmly in favor of the lender. The borrower would title the ownership of the land to the lender by way of an absolute deed. The lender was only obligated to deed the land back to the borrower when the borrower had paid the loan in full and according to the terms of the contract. Any failure to meet the  stringent guidelines of the loan by the borrower forfeited the lender’s obligation to re-convey the land and terminated the borrowers rights in the property.

It wasn’t until the Equity Courts intervened that the pendulum of power swung to favor the borrowers and allowed borrowers additional time to “cure” certain types of failures. An enormous victory for borrowers was the right to “redeem” the property by paying the lender in full. This equitable right of redemption allowed the borrowers to redeem their property and regain their title of ownership, even after the date originally agreed upon between the borrower and lender.

Fast-forward to modern-day America.

The most recent power shift has been the enactment of “non-judicial” foreclosure laws, which permit lenders to foreclose on property outside of the traditional court processes. In non-judicial states, such as  Nevada and Colorado, the lenders are able to obtain a “non-judicial foreclosure” without affording the borrower the right to argue their case in court.  New Mexico maintains “judicial foreclosure” requirements that mandate that the parties address  the dispute in court. The ways to stop foreclosure are therefore different for those borrowers in “non-judicial foreclosure” states than for those in “judicial foreclosure” states.

James’ 13 tips for stopping a foreclosure

The following instructions are meant for New Mexico and other judicial foreclosure states as the best way to help stop a  foreclosure:

1. Maintain regular communication with your lender. Written communication ensures you have a record of your attempts to resolve any issues you may have. If telephonic communication cannot be avoided, maintain a log outlining the contact numbers, persons, dates and times of calls, as well as any other pertinent information. Many issues can be quickly resolved with your borrower, especially if you are merely experiencing temporary financial struggles or if your issues relate to other matters beyond the monthly mortgage payment.
2. Pursue free public information available to you. You can access sites such as makinghomeaffordable.gov and hud.gov to access information on whether you might qualify for and request loan modification with the assistance of a government specialist.
3. If a loan modification is a possibility, diligently and promptly compile all of the necessary information and submit the entire packet. Obtain certification of mailing or faxing the packet. Some lenders allow online submissions of packets, in which case save screen shots and email confirmations of your submission. Follow up with your  lender to confirm that the application was received. Depending on your particular situation, you may need to submit multiple applications and supplemental documents. It is up to you to make sure that additional applications and supplemental documents are promptly submitted.
4. DO NOT STOP MAKING YOUR MONTHLY MORTGAGE PAYMENTS!  If a lender’s representative tells you that you need to keep paying your monthly mortgage in order to qualify for a loan modification, then do so. Seek the advice of qualified foreclosure attorneys before you make any decisions about discontinuing your mortgage payments, especially If your financial situation is not temporary or if you have other debt concerns.
5. Talk to a real estate broker. Get an informed decision about the value of your home and whether or not your house is “underwater.”
6. Evaluate a short sale. If your house is underwater you should strongly consider pursuing a short sale of the property.
7. Evaluate graceful surrender options. There are numerous options for gracefully surrendering your property, such as a deed-in-lieu of foreclosure and stipulated foreclosure judgement, amongst others.
8. Prepare for litigation. If you remain behind on your mortgage payments, you will eventually face the prospect of foreclosure litigation. DO NOT IGNORE this lawsuit, no matter what you hope to do with the property. Seek the advice of a foreclosure attorney to make sure that your rights are protected and to evaluate your legal defenses to the foreclosure.
9. Keep trying. Even if a lawsuit has been initiated, continue to pursue modification or surrender options discussed above.
10. Speak to a Bankruptcy attorney. Bankruptcy is one of the most powerful rights afforded to citizens of the U.S.A.. Through the different chapters of bankruptcy, you may be able to obtain your goal of modifying the mortgage or surrendering the property.
11. Redemption. Even if you lose a property to a foreclosure and sale, all borrowers have a right of redemption that allows the borrower to purchase the property back from the foreclosing party (or the purchaser at a foreclosure sale).
12. Rebuild your credit. After suffering the risk of foreclosure, it is important to take steps to rebuild your credit. Even if your loan has been modified once, if future issues arise, a good credit score can help if you encounter financial difficulties again in the future.
13. If you need help navigating the muddy waters of the foreclosure process then don’t hesitate to call for council. The Foreclosure Defense attorneys at Albuquerque Business Law are experienced professionals with many success stories and a lot of happy clients.