by Timothy B. Heather, Lawyer Referral Service Panelist
Don’t offer the other side payment unless your own lawyer recommends that you do so. Any such payment could be construed as your admission of fault and, unless you obtain a release of all claims, it will not relieve you of further liability. If you have liability insurance coverage, your insurance company will defend you and either settle the claim or pay any judgment rendered against you up to the extent of your insurance coverage.
by Timothy P. Heather, Lawyer Referral Service Panelist
The most prevalent remedy for a breach of contract is to require the party who breached the contract to pay damages to the non-breaching party. In some instances, the injured party can compel specific performance of the contract, or have the contract modified or cancelled. Sometimes, an order can be obtained from the Court to prevent further loss.
Most often, the best remedy for breach of contracts is money damages for the loss the breach of the contract caused. The breaching party’s liability is not necessarily the contract price or the value of the contract. The non-breaching party may be entitled to additional damages.
In some situations, particularly where the subject of a contract is unique, a Court may compel a breaching party to comply with the contract terms rather than pay damages. An example would be a rare antique or something which is one-of-a-kind.
In some instances, a party may be legally allowed to cancel a contract. This is known as “rescission.” One should be careful about rescinding a contract unless the other party has already materially breached it in some fashion. In Ohio, disputes concerning contracts which have a value of $15,000 or less can be resolved in Municipal Court. If more than $15,000 is in controversy, contractual disputes should be resolved in the Court of Common Pleas for each county. Normally, Municipal Court cases are quicker and cheaper than those in Common Pleas.
by Timothy B. Heather, Lawyer Referral Service Panelist
Written contracts are preferred over oral contracts. Ohio law requires that certain types of contracts must be in writing. These are:
(1) Contracts which require someone to respond for someone else’s debt, default, omission, or wrongful act;
(2) Contracts by the administrator of an estate for the administrator to use his own assets to pay for damages chargeable to the estate;
(3) Prenuptial agreements between engaged couples which answer various questions of property and rights made in consideration of marriage;
(4) Contracts for sale of real estate or any interest in real estate;
(5) Contracts which cannot be fully performed within one year.
A contract to buy a home is an agreement for the sale of land and, therefore, must be in writing. The requirements that the above mentioned contracts be in writing is known as the Statute of Frauds.
There are other contracts which must be in writing, even though not listed in the Statute of Frauds. In the commercial context, one of the most important is the requirement that the purchase and sale of goods involving a value of $500 or more must be in writing. Oral contracts for the sale of goods over $500 are not enforceable. Ohio, like most states, has adopted the Uniform Commercial Code, which is a collection of laws and rules for businesses which require that certain contracts be in writing.
by Timothy P. Heather, Lawyer Referral Service Panelist
Ohio law recognizes oral contracts, although it provides a shorter statute of limitations date for enforcing oral contracts. The statute of limitations for oral contracts in Ohio is six years, while for written contracts it is 15 years.
Although there are some important exceptions, if the basic elements are present, an oral contract is every bit as valid as a written contract and enforceable in the same way. However, it may be more difficult to prove the terms of an oral contract than a written contract.
by Timothy P. Heather, Lawyer Referral Service Panelist
The terms of most enforceable contracts are usually very specific and unambiguous. This is known as an express contract. However, sometimes neither party specifies what certain terms are, but their actions are such that the terms and conditions of their contract can be inferred. In this case, there may be an implied contract. A classic example of an implied contract is your legal obligation to pay the bill after you have gone to a restaurant and had a meal. There is no express contract, but the circumstances and conduct create a contractual obligation for you to pay for the food which you ordered.
by Thomas D. Richards, Lawyer Referral Service Panelist
There are a variety of options during what is called the “pre-filing” stage of foreclosure. This is the early stage when you are behind a few months (60 to 90 days) on your mortgage, the collection is still being pursued by your lender (typically a bank), and the matter has not gone out to a law firm yet for foreclosure filing. The first option is a “repayment plan,” in which you pay the amount that is back owed over a period of time, but you also keep up with your current monthly payment. A second option is a “reinstatement plan,” in which you pay the full amount that is back owed, including interest and penalties, the lender reinstates your mortgage, and you are back where you were before you got behind in payments. A third option is called “loan modification.” This is when the lender actually changes the terms of your loan, perhaps giving you a lower monthly payment or a little better interest rate. These loan modifications may be temporary or permanent, and are part of the federally sponsored Home Affordable Mortgage Program (HAMP) legislation that was passed a few years ago. HAMP encourages lenders to help qualified borrowers avoid foreclosure by modifying their loans to make them affordable and sustainable.
In those first two to three months of missed mortgage payments, it is critical that you talk to the lender to try to work out your situation.
by Thomas D. Richards, Lawyer Referral Service Panelist
There are many reasons for getting behind on a mortgage payment. Perhaps you lost a job, or there is an illness in the family and someone can’t work any longer. Lots of things happen, but the lender needs to know your situation so they can try to work with you.
When you are behind a few months on your mortgage payment, the worst thing you can do is not communicate with the lender. When they call, you need to talk them. If you can’t take the call, you need to call them back. Communication is critical because if they do not get the impression that you are trying to work something out, they will assume you don’t care to keep your house any longer and will move it into foreclosure.
by Mark E. Godbey, Lawyer Referral Service Panelist
In a bankruptcy case under Chapter 7 (straight bankruptcy), you file a petition asking the court to discharge your debts. The basic idea in a Chapter 7 bankruptcy is to wipe out (discharge) your debts in exchange for your giving up property, except for “exempt” property which the law allows you to keep. In most cases, all of your property will be exempt. Property exemptions are state specific and may be complicated depending on types of personal property you have; only a skilled bankruptcy attorney will be able to assist you with determining what property is or is not exempt. If your property is not exempt or has value in excess of the applicable exemption, your property will likely be sold and the funds distributed to your creditors.
If you want to keep property like a home or a car and are behind on the payments on a mortgage or car loan, a Chapter 7 case will not be the right choice for you. That is because Chapter 7 bankruptcy does not eliminate the right of mortgage holders or car loan creditors to take your property to cover your debt.
by Mark E. Godbey, Lawyer Referral Service Panelist
Yes. If your income is above the median income for a family the size of your household in your state, you may have to file a Chapter 13 (“debt adjustment”) case. The median income figures are state specific and change at least once a year; an experienced bankruptcy attorney will be able to review these figures with you to determine whether or not your income is above the median income line. If your income is above-median, then you must fill out “means test” forms requiring detailed information about income and expenses. If, under standards in the law, the consumer is found to have a certain amount left over that could be paid to unsecured creditors, the bankruptcy court may decide that the consumer cannot file a Chapter 7 (“straight” bankruptcy) case, unless there are special extenuating circumstances.
by Mark E. Godbey, Lawyer Referral Service Panelist
Bankruptcy is a legal proceeding in which a person who cannot pay his or her bills can get a fresh financial start. The right to file for bankruptcy is provided by federal law, and all bankruptcy cases are handled in federal court. Filing bankruptcy immediately stops all of your creditors from seeking to collect debts from you, at least until your debts are sorted out according to the law.
