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One roof or two?

My 1950’s home has recently developed ceiling cracks running lengthwise through all of the rooms.

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Q. My 1950’s home has recently developed ceiling cracks running lengthwise through all of the rooms. Recently, I had a new shingle roof put on, and the roofing contractor told me that I could save a little money by putting the new shingles on top of the old ones. I wonder if this could be contributing to the cracking of my plaster ceilings.

A. The new roof over the old is most likely the reason for the ceiling cracks. Some roofing contractors will put new shingles over old ones because it saves them time and money, but this is no benefit to the home owner. Your house was framed to handle the weight of one shingle roof, but not the weight of two. The extra load on the structure is placing stress on the rafters, braces and ceiling joists, and causing stress cracks in your plaster ceilings. At this point, your best option is to just live with the cracks, because if you patch them without relieving the extra load on the roof, the cracks will just come right back. Next time you are ready for a new roof, insist that the roofer remove all of the old shingles, felt, tar paper and any other materials right down to the plywood or boards and start from scratch. This will not only eliminate the extra weight problem, it will give you a better looking, tighter and longer lasting roof.

Customer Deposits

Illegitimate Revenue Stream for Banks?

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This month, for a change of pace, we are bringing you a LAWCHEK™ ALERT! from our partner and legal site Lawchek.com. This article reviews the questionable changes that have occurred relative to bank "holds" on customer deposits. These changes can effect everyone from the individual customer to the small business owner.

CUSTOMER DEPOSITS: ILLEGITIMATE REVENUE STREAM FOR BANKS?
Richard A. Pundt, Attorney at Law

For quite some time now, certain banks and other financial institutions may have been profiting from what some members of Congress are calling an illegitimate revenue stream, namely, the deposits of its' customers. Today, many banks will place “holds” on customer deposits. Such customer deposit “holds” are for ten business days and usually translate into a ½ month use of the funds deposited; In this way, banks are able to benefit from the interest on customer funds. This questionable practice has caused outrage by depositors and has ignited the concern of key members of Congress.

Congressman Michael Oxley (R-Ohio) has stated: “Holding a deposit to ensure its safety and soundness is reasonable. But holding a deposit in order to profit from the interest is completely unacceptable. The latter practice prevents consumers from realizing the benefits of their own assets, while creating an illegitimate revenue stream for financial institutions. It unfairly penalizes consumers and should be eliminated from the U.S. payment system.” 1

From an analysis in a report by Ms. Laura Bruce of www.Bankrate.com, it is revealed that there are many concerns relative to the new federal enactment of the Check 21 Act. "Check 21" allows the checks that individuals write to clear within one to two days while the deposit may be held by a bank for up to ½ month when weekends are added to the allowable ten day hold under “exceptional” circumstances of the FED Regulations. As a result, the consumer may get “nailed” for overdraft charges if the consumer was counting on the deposit and, in addition, the banks have been keeping the interest on the funds “held” through the deposit delay. Ms. Bruce also notes in her article 2 that Congresswoman Carolyn Maloney (D-New York) has introduced HR 5410 that would “…redress imbalances between the faster withdrawals permitted under the Check 21 Act and the slower rates for crediting deposits.”

Examples of bank customers delays due to the banks “hold” practices is very wide-spread and, undoubtedly, has accounted for hundreds of millions of dollars worth of profits for banks. Consumers, realtors, businessmen, and attorneys are becoming increasingly aware of these practices by the banks. This author has encountered quite a number of reported instances where consumers experienced an improper deposit delay or hold for an unreasonable period of time.

Of the many instances reported to this author, there are three that merit review in regard to the issue of deposit “holds.” The first instance involved a very well-respected attorney who deposited over $200,000 into his attorney trust account at a well-known bank and was verbally informed, after the deposit had been made, that there would be a ten business day “hold” on the deposit. He did not receive any written notice as prescribed by Federal Reserve Regulation CC (Availability of Funds and Collection of Checks, 12 CFR 229). This particular attorney had never over-drafted his account and has always maintained a sterling reputation with the Bar, as well as other attorneys. Moreover, the deposit consisted of checks from State Farm Mutual Ins. and John Deere Inc. The attorney directed a hand delivered correspondence to this well-known bank, wherein he requested an immediate removal of the “hold” or, in the alternative, an explanation as to whether the bank in question believed that checks from either State Farm Mutual Ins. or John Deere Inc. would not clear or if there was any improper activity by State Farm Mutual Ins. or John Deere Inc. in regard to: (a) any suspected criminal activity, (b) any suspected money laundering, (c) any suspected terrorist activity, or (d) any other improper activity that would mandate the holding of either check. Needless to say, the bank could not accuse either State Farm Mutual Ins. or John Deere Inc. of any such activity, yet the bank continued its “hold” on the deposit to the trust account from December 7, 2005 until December 20, 2005. The attorney has never received a written or an oral explanation, as he requested in writing, for the hold as prescribed by Federal Reserve Regulation CC (12 CFR 229).

The second instance involved a well-respected realtor who deposited between $200,000-$300,000, as a result of a closing, into his account at the aforementioned bank. He was unaware of any “hold” on the deposit. The realtor issued various checks, as customary, to: other financial institutions, the seller, realtors, an insurance company, taxing authorities, and others. When the bank in question refused to release its “hold,” the realtor’s checks bounced and a significant amount of distress and embarrassment was the result for all parties concerned, except, of course, the bank that profited in two ways: from the interest on the deposit and from the overdraft charges.

The third, but surely not final, instance involved a party who received a Cashier’s Check from a centrally located and well-known bank and, on the same day, deposited the Cashier’s Check into an account at a branch of the same bank. The branch placed a “hold” on its' own main bank’s Cashier’s Check. What is especially interesting about this case, other than the fact that it was the bank’s own Cashier’s Check, is the fact that under Federal Reserve Regulation CC (12 CFR 229), a Cashier’s Check, as well as a check drawn on an account held by the same institution, must be made available on the first business day following the day of deposit.

It would seem that compliance with Federal Reserve Regulation CC (12 CFR 229) is being ignored by several of the largest banks. According to the article by Ms. Bruce, as noted above, proposed legislation HR 5410 has been presented in Congress to benefit the consumer. The legislation is being introduced in order to counter the Check 21 Act that allows the checks written by consumers to clear faster than the actual deposits made at the banks. It is noted in the article that Representatives from Wells Fargo Bank and Wachovia Bank have stated that their banks place holds on less than one percent of all deposits. If one were to consider the dollar magnitude of that one percent, especially if such deposits are for more than $5,000, a substantial windfall of interest profits are the likely result for the banks placing the “hold.” Perhaps the one percent accounts for hundreds of thousands of deposits each day and, if the average dollar amount of such deposit is $10,000 (most likely it is much more), the money on hold by the large banks at any one time would be in the hundreds of millions of dollars for which the banks gain interest on consumers assets, as noted by Congressman Oxley.

Under the Federal Reserve Regulation CC (12 CFR 229), it is mandated that interest should be paid to the consumer (See Regulation CC (12 CFR 229.14)). It is, therefore, understandable why Congressman Oxley has stated that such practice by the banks “…prevents consumers from realizing the benefits of their own assets, while creating an illegitimate revenue stream for financial institutions."

Under Federal Reserve Regulation CC (12 CFR 229), the following deposits must be made available on the first business day following the banking day of deposit: (1) Cash, (2) Electronic Payments, (3) U.S. Treasury Checks, (4) U. S. Postal Service Money Orders, (5) Federal Reserve Bank and Federal Home Loan Bank Checks, (6) State or Local Government Checks, (7) Cashier’s, Certified or Teller’s Checks, (8) Checks drawn on an account held by the same institution upon which the check is drawn, and (9) the first $100, or if less than $100 the entire amount, of all other checks. In the case of the individual who had deposited a Cashier’s Check into an account that was held by the same bank upon which it was drawn, both subsection 7 and subsection 8, as noted above, were ignored.

On other deposits that are not listed above, including the proceeds of local and non-local checks, the checks must generally be made available for withdrawal by the second and fifth business day respectfully following the deposit (See Regulation CC (12 CFR 229.12)). In the case of the attorney, and in the case of the realtor, as noted above, if the deposited checks were local, the deposit should have been credited within two days, and if the checks were non-local, the checks should have been credited within five days. There should not have been an arbitrary hold for ten business days or a ½ month total hold on the deposits.

However, there are exceptions set forth under Regulation CC (12 CFR 229.13), and those exceptions involve: new accounts,3 large deposits, repeatedly overdrawn accounts, or emergency conditions. The only exception of the above examples involving the attorney or the realtor, as given, would be the exception of a large deposit since our investigation ruled out any other scenario. In the case of large deposits, the bank must provide a notice to the consumer (See Regulation CC (12 CFR 229.13)), and that notice must be in writing (See Regulation CC (12 CFR 229.15), (12 CFR 229.16), (12 CFR 229.17) and (12 CFR 229.18)). Additionally, and under Regulation CC (12 CFR 229.14), interest must be paid on interest bearing accounts no later than the day the bank receives credit for the funds deposited.

It would appear that certain banks may be circumventing the requirements of Federal Reserve Regulation CC (12 CFR 229), and that is undoubtedly one of the reasons that Congressman Oxley has expressed concern, and why Congresswoman Maloney is reintroducing HR 5410. As a practical matter, most customers drop the issue once they actually receive their funds, which have been held by the bank, because they wish to maintain a good standing relationship with the bank. So does that mean that nothing can be done? The answer is no. Something can be done, but it requires positive action by the customer.

First, the customer may file a complaint with the Federal Reserve at: The Board of Governors of the Federal Reserve System, Division of Consumer and Community Affairs at 20th and C Streets, N.W., Stop 801, Washington, DC 20551. Additionally, the consumer may file a complaint with the respective State Banking Commissioner in the state where the violation occurs. Also, contacting the proper parties within Congress, such as Congressman Michael Oxley (R-Ohio) or Congresswoman Carolyn Maloney (D-New York).

Finally, there is a civil remedy expressly set forth under Federal Reserve Regulation CC (12 CFR 229.21). The civil remedy allows for both individual and class actions. See Regulation 12 CFR 229.21 (a) (2) (i) and (ii). The statute provides a limitation on class actions that includes actual damages up to $500,000 or 1% of the net worth of the bank involved (the lesser of the two) plus costs and attorney fees.

New Home Warranty

Make sure you fully understand terms and conditions.

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Q. About six months ago we bought a new home and the builder provided a one year home warranty. Recently we discovered a defect, but when we contacted the builder, he said that because we did not discover the defect during the final walk-through that it would not be covered under the warranty. Is this common practice?

A. No, this is definitely not common practice. Most builders will repair defects that are found at any time during the warranty period, provided that they are covered by the terms of the warranty, and are obviously the fault of the builder. Read your warranty contract carefully to see if you are indeed bound by the condition your builder is citing. He may be counting on the fact that you have not thoroughly read the contract. In any event, you may want to seek the advice of an attorney. When inspecting a new home, I always advise my clients to discuss the terms of the home warranty with the builder before closing, and to make sure that they fully understand those terms and conditions.

Preventive Maintenance Tips for your Home-Part 7

This month we will conclude our Spring season tips.

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Welcome back to Rocky’s Corner! Last month we started Part 6(a 2 part Spring) of an 8 part series of Preventive Maintenance Tips for your Home. This month we will conclude our Spring season tips.

Every Spring-Part B

EXTERIOR CAULKING:

  • Inspect caulking and replace if deteriorating.

FLASHING:

  • Check flashings around all surface projections and sidewalls; replace if necessary.

GUTTERS AND DOWNSPOUTS:

  • Clear/install/repair gutters and downspouts and make sure the runoff is directed away from your home so it can’t erode the soil around the foundation or run into your basement or crawl space.
  • Install gutter accessories to divert water, channel underground drain lines into existing yard drainage or storm sewers, or consider installing a dry well at the end of the drainpipe to slowly distribute the water to surrounding soil.

LANDSCAPING:

  • Clean out the flowerbeds, removing fallen leaves and blossoms to avoid potential fungus and molds.
  • Cut back and trim all vegetation and overgrown bushes from structures.
  • Trim non-fruit trees before they start to grow and both fruit trees and Rose bushes before they start to bud to improve their production.
  • Consider a lawn renovation to eliminate the brown spots and crab grass left over from last summer and reseed bare spots. Contact a county extension service or gardening service for advice about proper lawn and garden care for your area.
  • For all of the above items, a prescreened pro may be your best bet. PIPES: Remove insulation around outdoor water pipes. Check for leaking around the outside hose bibs and evidence of rust or a white line deposit that may indicate a leak is starting.

ROOFS:

  • Inspect roof surface for warping, aging, moss, and cracking, making sure that shingles, shakes or tiles are sound; repair or replace as needed.
  • Inspect the flashing around chimneys, skylights and vents.
  • Seal cracks or openings where water could penetrate.
  • If you see significant damage or wear, contact a roofing specialist to give you a bid on a roof replacement.
  • Check eaves, and soffit for signs of water damage or deteriorating paint.
  • Repair, repaint or consider wrapping with maintenance-free vinyl or aluminum soffit and fascia.

SIDING:

  • Inspect siding (especially on the south and storm sides of the house) for evidence of deterioration, including cracks, splintering, decay, and insect damage; clean, treat and repair as needed.
  • Remember, paint protects wood and stucco surfaces; postponing necessary painting will require more extensive and expensive preparation (scraping, sanding, and priming) and repairs before repainting in the future.
  1. Brick and stone: check joints between wood and masonry. Waterproof, repair or repaint if necessary.
  2.  Wood: look for lifting or peeling paint, splitting wood or areas where the wood grain is separating or “checking” because water is getting into the siding.
  3.  Stucco: a chalky residue that rubs off on your hand is evidence of oxidation, a deterioration of paint or color coat that reduces stucco’s insulating value. If the stucco is cracked, this allows water to get in around windows and doors. If this is the case, have your stucco professionally repaired.
  4. Trim: look for peeling paint on the fascia boards, window sills and sashes that could allow water in to form mildew and fungus on the interior of your home behind curtains, blinds and window coverings. Consider installing maintenance-free vinyl or aluminum trim.

SPRINKLERS:

  • Check lawn sprinkler system for broken heads, leaky valves and exposed lines and contact a sprinkler service if necessary.

WATER WELL:

  • Consider having well water tested for safety. Join me next month for our final Part of our series on Preventive Maintenance Tips for your Home. Visit us at www.freminshomeimprovement.com

Bankruptcy Law 101

This is the article that no one hopes to need and we would prefer not to write.

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As of December 2007, bankruptcy filings are up 28% from last year and are expected to increase in 2008 due to the combined factors of high household debt and rising mortgage costs. American Bankruptcy Institute

This is the article that no one hopes to need and we would prefer not to write. The word 'bankruptcy' is weighed down by such doomsday words as failure, defeat, impoverishment...well, you're getting the depressing idea. However, it is not 'the end of the world' to declare bankruptcy. Instead of running away from this topic, it is time to demystify bankruptcy with a little 'Bankruptcy 101.'

What is bankruptcy?

For most people, bankruptcy is a way to get a fresh start after acquiring too much debt. Most individuals who file for bankruptcy will file under Chapter 7 or Chapter 13. Depending on which is filed, one may get most of their debt erased or work out a workable solution with lenders to pay off existing debt.

Are bankruptcy laws determined by Federal or State government?

Bankruptcy laws are made by the Federal government. States can pass laws that protect the "lender and debtor relationship" but they cannot regulate how a bankruptcy is processed or if it is to be granted.

Can all debts be erased?

No. Whichever type of bankruptcy is filed, there are certain debts that cannot be erased at all. These include alimony, child support, most student loans and legal judgments against fraud or criminal negligence such as a drunk driving accident. Some taxes may be erased, but not all. In fact, taxes have their own set of bankruptcy rules.

Do I need a lawyer?

When filing for bankruptcy it is important to find a bankruptcy lawyer who can help you navigate the process. Bankruptcy lawyers specialize in this area of law and are familiar with the distinct differences and effects of the process; they can be your greatest ally in a tough, seemingly bureaucratic system.

How long will bankruptcy effect my credit?

Bankruptcy will stay on your credit report for 10 years. There are ways to improve your credit rating and make yourself more appealing to lenders. For more information on this, check out this useful website: www.lifeafterbankruptcy.com. It is not an easy road back and those filing for bankruptcy should have a realistic expectation to work hard at their future spending practices.

Do I have to do debt counseling?

Yes. Under the new bankruptcy act passed in October 2005, it is now required that all persons applying for bankruptcy meet with a government qualified debt counselor first. After one has successfully filed for bankruptcy, the debtor must again meet with a counselor before the bankruptcy file will be closed.

What is Chapter 7 bankruptcy? (In a nutshell)

Chapter 7 bankruptcy is also known as a "liquidation of debt." A person can file for Chapter 7 every 8 years. This usually involves the liquidation of property to pay back debts. An appointed trustee sells all secured, non-exempt property for the debtor and distributes money raised among the lenders. Unsecured debts, such as credit card bills and most medical bills can be erased. This may mean the loss of secure debts such as a home. However, most states do have protections for debtors in place to insure they may keep life necessities such as clothing and some furniture. Retirement funds such as IRA's are also protected and debtors may keep these as well. After the changes to bankruptcy law in October 2005, many debtors may not get approved for Chapter 7 and be required instead to apply for Chapter 13. In short, if you still have an income and make more than the median for a household of your size in your state you may have to file for Chapter 13. To find out if you should be filing for Chapter 7 or Chapter 13, you can use a mean calculator like the one at legalconsumer.com. Again, this is where consulting a lawyer becomes very important.

What is Chapter 13 bankruptcy? (In a nutshell)

Chapter 13 bankruptcy is also known as a "reorganization of debt" or the "wage earners' plan." One can file for Chapter 13 more often as long as any previous filings are already closed. This is the bankruptcy for those trying to a find a way to get out of debt but still expect to pay off some of their debt. Generally speaking, if you still have a source of income and could make payments, just not the high ones you have now, you can be restructured into a debt payment plan under Chapter 13. This is the most likely to be used to try to stop a mortgage foreclosure. In this scenario, you can keep the house, car and more than you could under Chapter 7. There are limits to the amount of debt that can be restructured. If one is above those limits they would file under Chapter 11, however, the average American Joe/Jane is not in this category.

More Resources
US Department of Justice - US Trustee Program
www.usdoj.gov/ust/
A complete listing of approved credit counseling agencies is available through links on this Web page. [Listed by state.] www.usdoj.gov/ust/eo/bapcpa/ccde/cc_approved.htm
A complete listing of approved providers of financial management instructional courses is available through links on this Web page. [Listed by state.] www.usdoj.gov/ust/eo/bapcpa/ccde/de_approved.htm

American Bankruptcy Institute
www.abiworld.org
The American Bankruptcy Institute is the largest multi-disciplinary, non-partisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues.

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
www.govtrack.us/congress/bill.xpd?bill=s109-256

Bankruptcy Action
www.bankruptcyaction.com
The objective of this website is to provide the person, thinking about filing bankruptcy, the information he or she needs to make an informed decision.

Lawyers Listings
www.lawyerslistings.com/about.shtm
Our mission is to present to the Internet community an easy-to-use site in which to search for law firms and individual lawyers.

Life After Bankruptcy
www.lifeafterbankruptcy.com
On this website you'll discover everything I did to recover so quickly...and many other bankruptcy recovery and credit repair strategies you'll find nowhere else.

NOLO Bankruptcy Library
www.nolo.com
Nolo is your legal companion, empowering you and saving you money whenever the law touches your work, life or finances.

US Courts - Bankruptcy Basics
www.uscourts.gov/bankruptcycourts/bankruptcybasics.html 
Bankruptcy Basics provides basic information to debtors, creditors, court personnel, the media, and the general public on different aspects of the federal bankruptcy laws.

What can you do to prevent Bankruptcy?

  1. Continue to take care of essential bills first: mortgage/rent, taxes, child support, and utility bills.
  2. Eliminate frivolous expenditures. No more department store credit cards, cable TV, magazine and newspaper subscriptions, etc. Be honest about what you can live without with for a while. 
  3. If you own your home, consider a home equity loan to get rid of high rate debts such as credit cards.
  4. Watch your credit report. Close unused accounts, check for errors and resolve any questions with lenders immediately.
  5. Know the warning signs: -Are you using credit cards to pay off bills or credit cards? -Are you borrowing against unprotected debt? i.e. Are you borrowing from a credit card to pay the mortgage? When you see you are bouncing debt around and not making any headway, it is a good time to look at credit counseling.
  6. Warning about credit counseling: If you choose to do debt consolidation recognize that it will effect your credit score. Also, make sure you understand how the payments will work and if you can really make the payment - sometimes they are set too high!
  7. Avoid aggressive lenders. If you begin to get offers for loans that sound too good to be true - they are! There has been a big push to penalize aggressive lenders who only help people acquire more debt. However, they are still out there and you should be a careful shopper of any loans you take.

Preventive Maintenance Tips for your Home-Part 1

t's time to give your home a little TLC.

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Welcome to Rocky's Corner. It's time to give your home a little TLC. We all know how quickly time flies -weeks turn to months and months to years. Too often homeowners neglect to do periodic maintenance checks on building structures, roof systems, household fixtures and appliances. This neglect can lead to expensive repair costs that could have been avoidable.

You have joined me on the first of an 8-part series on Preventative Maintenance Tips for your Home. I hope that you will find this information to be both informative as well as useful in helping you to maintain your home.

PREVENTATIVE MAINTENANCE TIPS FOR YOUR HOME MONTHLY FIRE EXTINGISHER:
* Check that it is fully charged and recharge if necessary.

SMOKE DETECTORS AND CARBON MONOXIDE DETECTORS:
* Test all alarms to insure that they are working properly.

GARBAGE DISPOSAL:
* Always run cold water when grinding to harden fats and grease and to move waste down the drain lines.
* Disposers are generally self-cleaning- grinding citrus peels, eggshells, small bones, or a little ice will clean deposits and get rid of odors.
* Remember not to grind oyster or clam sheels, or highly fibrous materials or non-organic materials such as metal, glass or plastic.

DRAINS:
* Use a non-toxic biological drain cleaner regularly to keep drains clear. (Avoid using bleach or mouthwash down biologically treated drains because it kills the "friendly bacteria" working to keep your drains clear.

SINKS & TUBS:
* Check for moisture or small leaks under toilets, bathtubs and sinks.
* Keep strainers in your bathroom sinks to catch soap pieces and hair.
* Overflow holes on tubs should always be clear to prevent water damage to floors and ceilings.
* Flush with hot water and baking soda.

HEAT PUMP:
* Clean reusable filters or replace disposable.

FORCED WARM AIR HEATING SYSTEM:
* Clean reusable filters or replace disposable.

EVAPORATIVE AIR CONDITIONER:
* Clean reuseable filters or replace disposable.
* Clean evaporator or condenser coils.
* Clean condensate drain when in use
* Clear debris from around outside unit.

When performing your maintenance check if you should find that additional work is required consider hiring a professional. Proper care and maintenance to your home can saves hundreds of dollars in repair costs. I hope that you have found this article to be helpful and informative.

Please join me next time for Preventative Maintenance Tips for your Home part 2. Visit us at www.freminshomeimprovement.com