Richard Vetstein

Attorney General Healy Announces Indictments Against Allen Seymour and Ex-Wife

As I’ve written here before, I have been representing three families victimized by convicted felon, Allen Seymour, in a brazen complex real estate forgery scam. As a result of the courageous testimony from my clients, I’m happy to report that a statewide Grand Jury has just handed down a 22 count indictment against Seymour on charges of forgery, uttering, larceny, and money laundering. Seymour’s ex-wife, Tina Seymour, was also charged with conspiracy to commit forgery.

Seymour, who used the alias “Richard Chase,” targeted elderly and unsophisticated homeowners. He used forged deeds and fake notary stamps to sell their properties out from under them, flipping them to wealthy investors, and pocketing the cash. Seymour targeted properties in Cambridge, Brookline, and Somerville. Seymour also worked with a group of accomplices including Newton police lieutenant, Francis Foley III, who was not indicted but remains under investigation and on paid leave from the force.

Allen Seymour fled the state and was apprehended in South Carolina in May and is currently being held without bail pending probation surrender hearing scheduled for a later date. He will appear in Worcester Superior Court on Jan. 7, 2019 for a hearing regarding his probation surrender. Tina Seymour will be arraigned in Hampden Superior Court at a later date.

I have filed three civil actions in Middlesex Superior Court, seeking to quiet title and restore ownership to the victims. The cases are ongoing.

First American Title Company has issued a statewide Fraud Agent Alert concerning this scheme.

Boston 25 News reported on the indictment below

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New Judges to Serve Expanded Statewide Jurisdiction

In the 2018 Fiscal Year budget, the jurisdiction of the Housing Court expanded to full state-wide coverage, and with it, the Legislature created five new judgeships. Earlier this week, Governor Charlie Baker nominated five attorneys as new Associate Justices to the Housing Court:

Donna T. Salvidio of Worcester nominated as a Circuit Justice
Neil K. Sherring of Westwood nominated as a Circuit Justice
Joseph L. Michaud of Dartmouth nominated to the Metro South Division
Irene Bagdoian of Westborough nominated to the Metro South Division
Gustavo A. del Puerto of Salem nominated to the Northeastern Division

Each judge must be approved by the Governor’s Council before stepping onto the bench. While I do not know all the nominees personally, this group appears to have very solid experience and background. I look forward to seeing them before the Governor’s Council and hopefully on the bench.

Donna Salvidio currently leads the Condominium Law Practice Group within the Real Estate department at Fletcher Tilton PC in Worcester. Click here for her Firm Biography. Her work covers a full spectrum of real estate related matters, with particular emphasis on residential housing law, condominium law, property management, commercial leasing and transactional work. She has over 27 years of experience in residential housing law including landlord-tenant law and the development of affordable housing. Attorney Salvidio served as Board President of Worcester Community Housing Resources, Inc., a non-profit which creates and preserves affordable housing opportunities for low to moderate income households, and is currently a member of its Property Development and Management Committee. She also served on the Housing Court Committee of the Worcester County Bar Association and was a Commissioner of the Worcester Civic Center Commission for 10 years. Attorney Salvidio received her Bachelor’s Degree cum laude in Psychology from the University of Vermont and her Juris Doctor cum laude from Suffolk University Law School where she served as an editor of the Suffolk University Law Review. She currently resides in Worcester, Massachusetts.

Neil Sherring has 25 years of experience practicing law. Since 2001, he has been a partner in his own law firm Dakoyannis & Sherring, LLC, where he concentrates on landlord tenant and real estate related cases, personal injury claims, insurance disputes, and employment discrimination claims. Previously, he was a trial attorney at Mintz, Levin. Attorney Sherring also has a wealth of experience representing the Commonwealth as an Assistant Attorney General, Assistant District Attorney for  the Northwestern District of Massachusetts, Massachusetts Superior Court Law Clerk and Hearing Officer for the Division of Insurance. He has served as the Deputy Commissioner of the State Athletic Commission and has been a frequent lecturer at Suffolk University and Curry College. Within his community, he is a current Board Member of the Westwood Community Chest, where he has also served as President and Vice President. He earned his Bachelor’s Degree from Curry College and his Juris Doctorate from Suffolk University Law School. He resides in Westwood with his family.

Joseph Michaud has been practicing law for 25 years. He is currently an attorney partner at his own practice, the Law Offices of Joseph L. Michaud, where he specializes in residential and commercial real estate transactions and landlord-tenant matters. Attorney Michaud is also a decorated member of the United States Army, having served on active duty intermittently for the last 30 years as a Lieutenant Colonel in the Judge Advocates General Corps. He first enlisted as a Tanker in 1986, and went on to serve in both Desert Storm and Operation Noble Eagle. Attorney Michaud has earned 3 Meritorious Service Medals, 6 Army Commendations, a Joint Service Achievement Medal, a National Defense Medal, a Global War on Terrorism Medal, and an Outstanding Volunteer Medal. Attorney Michaud continues to serve his local community as Chair of the South Coast Chamber of Commerce in New Bedford and as a Board Member of the Veterans’ Transition House. He graduated with his Bachelor’s Degree from University of Massachusetts in Amherst and received a Master’s of Arts from Sam Houston State University. He earned his Juris Doctorate from the Franklin Pierce Law Center at the University of New Hampshire. Attorney Michaud is a lifelong resident of Dartmouth, MA. In his spare time, you can find him playing bass guitar in a local band.

Irene Bagdoian has practiced law in the Commonwealth for nearly thirty years. During the last decade, she has been a solo legal practitioner at her own law firm in Brockton, representing individuals and businesses in civil litigation matters related to housing, foreclosure, real estate, and consumer protection. She was one of the founders of the Brockton Housing Court Lawyer for the Day Program, which provides advice to unrepresented landlords and tenants, and has organized educational programming for volunteer lawyer programs in collaboration with the Southeastern Housing Court for the past nine years. Attorney Bagdoian is a member of the Steering Committee for the Tenancy Preservation Program and a Board Member of the Justice Center of Southeast MA. She graduated with her Bachelor’s Degree from Wheaton College in Norton, MA and received her Juris Doctorate from Boston University School of Law. She resides in Westborough with her husband, Paul Sangree.

Gustavo del Puerto has nearly 25 years practicing law in Massachusetts. He currently serves as Assistant Clerk Magistrate in the Northeast Housing Court. Prior to that, he practiced as a Senior Associate at Sassoon & Cymrot in Boston where he focused on commercial litigation, including the resolution of contract, business, and construction disputes, tort matters and the protection of creditors’ rights. Attorney del Puerto served as Counsel for the Chelsea Commission on Hispanic Affairs, Inc., where he also provided pro-bono work for immigration law. Attorney del Puerto earned his Bachelor of Arts from the College of the Holy Cross, and his Juris Doctorate from Northeastern University’s School of Law. He currently resides in Salem, MA.

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“From the Assessor’s Office” — A New Regular Column by Jonathan Steinberg, MAA, MACR, Chief Assessor, Town of Westborough

Along with the celebration of the holidays comes the moment of truth when communities with quarterly tax billing send out the new Fiscal Year’s tax bills. Often there is an emotional response of frustration and anger. However, take a deep breath before contacting the Assessor’s office and ask yourself two questions: “Is it my assessment that’s too high or are my taxes simply too high? Could I sell my house for the assessed value?” If your assessment seems reasonable, but you think your taxes are too high, my recommendation is to go vote at Town Meeting or contact your City Councilmen, and get involved in your local government. Don’t contact your Assessor. If your assessment is too high, it’s worth considering filing for an abatement.

There are a few things to know before picking up the phone to call the Assessor’s Office.

Most importantly, applications for abatement must be postmarked by February 1st . After that deadline, the Board of Assessors has no authority to grant abatements for the Fiscal Year.

How are real estate taxes calculated and what do these bills represent?

The Fiscal Year begins on July 1st and runs until June 30th. The first two tax bills received on July 1st and October 1st are preliminary tax bills based upon the prior year’s values and tax rate. The new Fiscal Year’s assessments are set in the fall, the community determines if there will be a split or single rate and a tax rate set by mid-December. The tax bills sent by January 1st represent the Actual bills for the Fiscal year. These bills use the new Fiscal Year’s assessment and tax rate to determine the total year’s taxes due. The preliminary amounts are subtracted. The remaining amount is divided by two for the third and fourth quarters. This calculation results in the four quarters not being the same.

Ex. Fiscal 2017 assessment of $450,000 and rate of $17.80/$1000

Fiscal 2018 Preliminary bills $450,000 x $17.80/$1000= $8,010 /4 quarters = $2,002.50

Fiscal 2018 Q1 = $2,002.50   :     Q2= $2,002.50 Total Preliminary Paid = $4,005.00

Fiscal 2018 Value set at $465,000 and rate $18.25

Fiscal 2018 taxes: $465,000 x 18.00/$1000 = $8,370.00

Less Preliminary Bills: $8,370.00 – $4,005.00 = $4,365.00

Fiscal 2018 Q3 & Q4 Bills: $4,365.00/2 = $2,182.50

The total increase in taxes is $360.00

Many take the recent tax bill just received, multiply by four. In the example above, that would represent an increase of $720.00. You can take some consolation in that the next July’s bill should be less than the bills just received.

Understanding Your Assessment

Assessed values for Fiscal 2018 are as of January 1st, 2017. They are based upon the calendar 2016 sales of similar properties. The property that sold in your neighborhood last month is not considered in the current assessments. Unlike a “Fee Appraisal” for a mortgage, Assessor’s utilize “Mass Appraisal”. Assessors analyze an entire year’s sales, looking at assessment to sales ratios and different property characteristics. The analysis compares similar properties comparing factors such as size, location, style, age, quality and condition. Utilizing a CAMA (Computer Assisted Mass Appraisal) system, they apply this analysis equitably across all the properties in Town. The effectiveness of this relies on accurate data to evaluate that people paid X for Y.

A word of caution, before proceeding. When filing for an abatement, assessments can go up if errors are found that need to be corrected.

Procedures for Filing an Abatement

The first step is to get a copy of your property record card and review the information for accuracy. Look at the measurements and details such as acreage, bath count, fireplaces, finished basement, central air, etc. Next, review the grade rating, quality and condition of the dwelling compared to other similar properties. It is key to look only at similar properties. Don’t compare your newer colonial to a 1950’s cape. Inequitable valuation is a difficult case to support since the same valuation model is applied to all properties. If there are differences in value between you and your neighbor, it will be the result of differences in data. Correct or incorrect.

Don’ts:

  • Don’t cherry pick sales and properties throwing out anything that doesn’t support your argument. Assessor’s won’t overlook these. If other properties need correction, it doesn’t make your property value wrong.
  • Don’t compare your newer colonial to a 1950’s cape. Even if the property is next door, similar properties need to be compared. If you find data errors, filing for an abatement may be worth your time.
  • Don’t simply divide the assessment by the living area and compare $/square foot. This is not an accurate comparison. Factors are not linear. This calculation does not take into account differences in acreage and interior details.
  • Don’t bring a Zillow value into the Assessor’s office as support. Zillow can be a decent tool for lists of sales, but it falls short when it comes to analysis. Any information provided from online sources should be evaluated independently rather than relying on their values. There are simply too many variables that impact value that can’t be captured by these sites. Information about comparable sales can also be found through brokers or in the Assessor’s office.
  • Don’t bring in a bank appraisal that was done on your property within the last six months. It will use comparables that are after the January 1, 2017 effective date of the assessment.
  • Don’t refuse an inspection.

Do’s:

  • Fill out the application completely and submit it prior to the deadline.
  • Clearly explain any issues with the data on the record card.
  • Select and present comparable sales that are prior to the January 1, 2017 effective date of this assessment.
  • Select comparable sales that are actually comparable. They should be similar location, age, style, size etc.
  • Provide a reasonable opinion of value that is supported by your explanation.
  • Make yourself available for an inspection within the schedule of the Assessor’s. While you are never required to allow Assessor’s into your property, denying an inspection when applying for an abatement can almost guarantee a denial regardless of the reason for application. Don’t delay the inspection. Bear in mind, that this is something you have applied for so do your best to be accommodating for the Assessor’s inspection schedule.

After the Board of Assessors has acted on your application and you’ve received notice, if still unhappy with the outcome, the next step is an appeal to the Appellate Tax Board.

In closing, remember the February 1st filing deadline, assessments can go up if other errors are found(review your record card carefully), and go back and review the “Don’ts” above before sending in your application.

Jonathan Steinberg, MAA, MACR, is the Chief Assessor, Town of Westborough

The views contained in this article are the personal views of the author, not the Town of Westborough or the Commonwealth of Massachusetts.

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Foreclosure2-300x225.jpgMany Titles Automatically Cleared As Of Dec. 31, 2016

While 2016 may have been a tough year for some, the new year brings some relief to those affected by foreclosure related title defects. For some homeowners saddled with bad titles due to improper foreclosures, when the Times Square ball dropped, their titles defects magically disappeared under The Act Clearing Title to Foreclosed Properties. They are now free to sell or refinance after waiting many years in most cases.

The Act, now codified in Mass. General Laws Chapter 244, section 15, was enacted by Gov. Charlie Baker last year in an effort to minimize the impact of several troublesome SJC rulings which cast doubt on titles coming out of foreclosures, including the seminal case of U.S. Bank v. Ibanez. The Act, which I testified in support of at the State House, establishes a new three year statute of limitations for challenging foreclosures and clears titles with foreclosures conducted prior to Dec. 31, 2013, unless the homeowner brought a lawsuit and records it with the Registry of Deeds.

Practice Pointer: Under the Act, any defective title stemming from a foreclosure completed prior to Dec. 31, 2013 is now cured, provided there is no legal challenge filed and complaint recorded with the Registry of Deeds and no other statutory exemption applies. Speak to your title underwriter or consult an attorney for guidance.

Covered Time Period

The Act establishes a three-year statute of limitations period to bring a challenge to a foreclosure. To timely bring a challenge, an aggrieved homeowner must file lawsuit challenging the validity of the foreclosure sale, and must also record a copy of the lawsuit in the registry of deeds before the limitations period expires. The Act reaffirms the mortgagee affidavit requirements of the foreclosure law, including the provision that the recording of a valid affidavit is “evidence that the power of sale was duly executed.”  The Act also provides that after three years from the date that the foreclosing lender records a validly executed affidavit, the affidavit serves as “conclusive evidence” that the power of sale was duly executed.

Retroactive Application

The Act applies retroactively. To address constitutionality concerns, for mortgagee affidavits recorded prior to December 31, 2015, the statute of limitations period is the longer of the full three-year period or one year from the effective date of the Act, December 31, 2015. Thus, by the terms of the Act, for all foreclosures completed prior to December 31, 2013, the deadline to assert and record a challenge was December 31, 2016. For foreclosures completed between January 1, 2014 and December 31, 2015, the three year statute of limitations runs from the date of the foreclosure.

No Relief to REO/Fannie Mae Owned Properties, But….

The Act does not apply to mortgagees, noteholders, servicers, their affiliates, or government entities like the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) that continue to hold title to properties following foreclosure sales. The Act only applies “arm’s length third party purchasers for value,” defined as a party who either (1) purchased the property directly at the foreclosure sale, or (2) purchased the property from the bank or another entity at some point after the foreclosure sale, to the extent the power of sale was not duly exercised.” While foreclosing parties, noteholders, and mortgagees will not benefit directly from the Act on properties that they own or service, they will benefit from the resolution of title disputes, the insurability of properties they formerly owned or foreclosed, and the validity of mortgages that they currently service.

Broader Applicability?

The Legislature clearly intended for the Act to resolve title defects arising out of the Ibanez case. But the Act, as drafted, is not limited to just Ibanez defects. It could also be applied to defects arising out of other SJC rulings, including Eaton (promissory note status), Pinti (cure notice) and Schumacher (cure notice).  Because the Act is retroactive and silent as to what specific title issues it resolves, a recorded mortgagee affidavit could cure many other issues aside from Ibanez issues. We will see how title underwriters and the courts apply the Act in the months to come. As always, the best practice is to get your title underwriter’s opinion in an email and place in your file.

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Updated (4/27/16): SJC Rules That Security Deposit Violation Is Full Defense to Eviction

Landlord Stopped From Evicting Tenant Over $3.26 In Interest

Massachusetts has a well-deserved reputation as being a hostile jurisdiction for landlords. With a myriad of tenant favorable laws on the books, the proverbial playing field is often stacked against landlords. Exhibit A is the Security Deposit Law which provides a three month penalty, including payment of the tenant’s legal fees, against landlords who don’t follow its strict requirements.

One of the requirements of the Security Deposit Law is that annually the landlord must pay the tenant any accrued interest on the deposit. That’s what got landlord Garth Meikle in trouble with his tenant who was three months behind in rent.

Garth Meikle v. Patricia Nurse, SJC-11859

Meikle brought an eviction case in the Housing Court, and essentially won with the judge ordering the tenant to pay the past due rent, but deducting the security deposit plus the three dollars and change in interest. However, to the tenant’s rescue came the crusading Harvard law students from Harvard Legal Aid Bureau. Representing her for free, the students have taken her case all the way up to the Supreme Judicial Court. (Why is it that landlords are not offered the same free legal aid?). The tenant posted an appeal bond so she’s allowed to stay in the apartment while paying the rent during the pendency of the case.

The SJC heard arguments this morning with third year Harvard Law student Louis Fisher arguing the case. (Damn lucky kid!).

The Harvard tenant lawyers are advancing the dangerous argument that a landlord who violates the security deposit law — even in the most minor of circumstances — cannot evict a non-paying tenant.

Scary right? If the Court accepts this argument then tenants will have yet another powerful tool to avoid eviction. The Security Deposit Law is so strict that most landlords make minor errors in holding the deposit. That’s why I have advised that landlords don’t even bother taking security deposits in the first place.

You can guess where I stand on the merits of the case. The security deposit is a separate financial matter between the landlord and tenant which has nothing to do about whether the tenant owes rent or the condition of the property. Those are the two primary issues in a non-payment eviction case. You don’t pay the rent without legal defense, you’re out. Period. Compliance with the security deposit law should have no bearing on a non-payment eviction. The Legislature did not intend otherwise, and regardless, that should not be our policy. Enough is enough already.

You know what else bothers me? These legal aid organizations take on these “test cases” to train law students and get them experience. After all when does a law student ever get to argue a SJC case? Is that really fair and just to small unrepresented landlords like Mr. Meikle who told the justices that his son and fiancee were hoping to live in the apartment?

The SJC should come out with a final ruling in the next few months. Check back here for future developments. In the meantime, I will keep on fighting the good fight for landlords.

Case Link:  Garth Meikle v. Patricia Nurse SJC-11859

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917BdkbVovL._UX250_Elizabeth Gerhman, a writer for the Boston Globe Magazine and owner of two rental units, is fed up with how the Massachusetts legal system favors tenants over landlords.

In her article Think It’s Tough to Rent? Try Being a Landlord, she describes that

“In just five years as a rental, the other [unit] — which has hardwood floors, granite countertops, and a $1,200 dishwasher — has been a nightmare, with tenants who bounced checks, didn’t pay their rent, and threatened to call the building inspector over, among other things, a loose toilet seat, a missing outlet cover, and, I’m not kidding, a bedroom that is allegedly 0.389 of an inch too small. The tenant who detailed these horrific, slum-like conditions also threatened to take me to court over some food that had spoiled when the refrigerator broke — which is what prompted the intimidation tactics in the first place.”

As landlord groups have been arguing for years, one of the major problems with the current system is that Massachusetts has no rent escrow law. Under the present system, a tenant can withhold months of rent for any cosmetic or minor problem with the unit until the eviction case is resolved, leaving the landlord unable to pay their mortgage. We call that the “free rent trick.” As Ms. Gerhman correctly points out, “with an average judgment of about three months’ rent, this can be a real hardship for house-poor landlords. And once a landlord does evict a tenant who owes back rent, he or she must pay to move the tenant’s belongings out of the apartment in addition to three months’ storage costs.” As I was quoted in the article, many landlords opt for “cash for keys” deals to avoid huge losses during an eviction.

A rent escrow law would require any tenant who withholds rent to simply pay it into an escrow account until the unsafe conditions or code violations are repaired and the eviction case is resolved. After repairs are done, either the landlord and tenant agree on how the escrowed rent should be divided, or a judge orders a fair settlement. The “free rent trick” would be gone and landlords less likely to get left holding the money bag.

Sounds fair? Tell that to your state legislators who have been sitting on rent escrow bills for over a decade.

New rent escrow bills return to the Legislature this session as House Bill 1654 sponsored by Rep. Chris Walsh and House Bill 1112 sponsored by Rep. Brad Jones. Both bills are expected to get hearings at the State House this spring. I will keep you posted.

Personally, I think a fair legislative compromise would be for landlord groups to support the Housing Court Expansion bill under the condition that a Rent Escrow Bill is passed along with it. That would be a win-win for both sides.

In the meantime, please email and call your local state rep and senator and tell him or her you are in favor of these bills. If you have any tenant horror stories, make sure you include those as well. Also, consider joining your local chapter of the Massachusetts Rental Housing Association or Masslandlords.net. Both organizations will be coordinating legislative efforts on the rent escrow bill and other landlord legislation. Lastly, please share this article and the Globe Magazine article on your Facebook pages, Twitter feeds and email blasts!

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6a00d8341c630a53ef0120a90377db970b-800wiOne of the perks of writing this blog is that I get called by business reporters from around the country who think I know a thing or two about real estate law. While that proposition is certainly debatable, this week I was contacted by a very nice reporter from the Wall Street Journal who was doing a story about luxury homeowners falling into foreclosure. Here is a link to the article (in which I was quoted).

Naturally, I related this situation back to one of my mother’s favorite reality TV series: The Real Housewives of Orange County. The “Wives” of Orange County have been particularly affected by the real estate collapse. Apparently, Tamra, Alexis and Lynne’s enhanced beauty and vapid personalities were not enough to avoid foreclosure, eviction and short sales of their multi-million dollar mansions. But for “normal” millionaires like you and me, lenders may be more willing to work with high income borrowers, according to the Journal.

WSJ reporter, Annamaria Andriotis, found some data supporting her theory that due to the unique economics involved with the luxury home market (i.e., less buyers, more expensive to maintain), lenders are less likely to foreclose upon properties over $1 Million.

Lenders can be more willing to craft a new payment plan to make high-dollar homes more affordable. Paperwork and procedures are also often delayed, keeping homeowners in some states in their homes for two or more years after they’ve stopped making mortgage payments. And in some cases, lenders are offering homeowners tens of thousands of dollars in cash in exchange for their agreeing to a short sale, in which a home is sold for less than the borrower owes on the mortgage.

Repossession rates show the difference. Last year, roughly 85% of homes worth up to $1 million that received default notices were eventually repossessed, according to RealtyTrac, which tracks real-estate data. For homes worth more than $1 million, about 28%, or around 1,400 homes, were repossessed.

I have to assume that Massachusetts is not unique in this respect. Realtor John McGeough of McGeough & LaMacchia says he’s seen an increased in short sale activity for million-plus dollar homes in towns like Weston, Wellesley, Brookline, Newton, Gloucester, North Andover, South Natick, Sudbury, Concord, Sherborn, and Needham. McGeough reports that JP Morgan Chase paid one of his distressed clients $30,000 to do a short sale. Talk about cash for keys!

I don’t think there is any class warfare or real discrimination going on here. It’s simply dollars and sense. It’s more expensive for banks to foreclose and hold onto a million dollar property as opposed to working out a better deal with the borrower.

And by the way, I cannot stand those Housewives!

WSJ Foreclosure Forestalled Article 3.8.13 by

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brownstone1

Update:  Registration Extended Until Aug. 31, 2013

The Boston City Council and Mayor Menino’s Office have passed a sweeping new rental property registration and inspection ordinance which is now effective for the year 2013. The new ordinance requires, among other things, that all rental property owners register with the Inspectional Services Department (ISD), and are subject to inspections every 5 years. Details of the new ordinance are summarized below.

Who is covered?

All rental property owners, regardless of state residence, must register their rental properties with ISD. This also includes condominium units which are rented out. Excluded from the inspection requirements (but not the registration requirements) are owner-occupied buildings containing no more than 6 units, licensed lodging houses, government owned or operated housing.

What are my registration obligations?

Landlords are required to register with ISD no later than July 1 of each year. A fee of $25/unit will be charged. All non-resident owners must designate a Boston-based resident agent to accept service of process on the owner’s behalf.  You can now register online at Cityofboston.gov or download an application from the same site. The City has also posted a Frequently Asked Questions Page here.

When will my rental property get inspected?

ISD will inspect rental properties at least once every 5 years. ISD intends to first inspect the “problem” properties which have a history of code violations. Landlords will receive a notice from ISD about the inspection. Landlords have the option of having an outside “authorized inspector” perform the inspection at the owner’s expense. Annual inspections conducted by the Boston Housing Authority (BHA) and similar government programs will be accepted by ISD. For most buildings, the inspection fee is $75 for the first two units, and $50/unit thereafter.

Are there any new signage requirements?

Yes. A sign of not less than 20 square inches must be posted adjacent to the building’s mailboxes or other conspicuous location. The sign must contain the contact information of the landlord and property manager, if any.

My property has been cited for violations in the past. Will this be a problem?

It could be. The new ordinance has a new classification for “Problem Property” if:

  • the police have been called to the property at least 4 times in one year; or
  • 4 or more noise complaints; or
  • 4 or more ISD complaints for unsanitary conditions/code violations

Problem Properties must be inspected every year and the owner must submit a management plan to address the issues.

How do I coordinate the inspection with my tenants?

A tenant is entitled to “reasonable advance notice” before an inspection. If access is denied, the landlord must notify ISD within 7 days, and if ISD verifies same, the landlord will be exempted from inspection for 1 year. Tenants are entitled to a copy of all inspection reports.

I am buying a rental property. By when does the new owner need to register?

ISD must be notified of the sale of any rental property 30 days after the closing, and the new owner must register with ISD within this 30 day window. Within 90 days of closing, the new owner must complete any pending inspection or submit an application for approval of an alternative inspection plan.

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Richard D. Vetstein is an experienced Greater Boston landlord tenant attorney who represents rental property owners throughout Boston and Massachusetts. You can contact him at 508-620-5352 or at info@vetsteinlawgroup.com.

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Federal Judge Rules $475 Apartment Amenity Use Fee Violates Massachusetts Security Deposit Law

Some large apartment owners, such as Archstone Properties, have been charging tenants a separate “amenity use fee” for use of the community pool, workout room, media center and other amenities, or a separate “move-in” fee or pet fee. The fees can be rather hefty; several hundred dollars in many cases. Well, a federal judge recently struck down these fees as illegal under the Massachusetts Security Deposit Law. What’s more, the judge has allowed a class action to proceed against Archstone Reading apartment complex which may be on the hook for thousands if not millions in refunds to tenants. Other apartment complexes may have legal exposure if they used similar amenity use fees.

Massachusetts Amenity Fee Class Action

The case is Hermida v. Archstone Properties (D. Mass. Nov. 29, 2011). The case arose out of a $475 amenity use fee charged by Archstone Properties in their Reading, Massachusetts apartment complex. The judge ruled that under Massachusetts law, landlords can only charge tenants for: (1) first month’s rent, (2) last month’s rent, (3) a security deposit, and (4) a key installation fee. The additional amenity use fee is illegal, Judge Young ruled, if it is required, not optional, and charged up front, i.e, a condition to renting. Judge Young also approved the case for class action status.

The class action attorney handling the case, Matthew Fogelman, Esq., is also investigating whether other apartment complexes and landlords have charged similar amenity use fees, move in fees and/or pet fees, for potential class actions against those apartment complexes. If you were ever charged a separate amenity use fee, move-in fee, or pet fee as part of your rental lease, please email me at info@vetsteinlawgroup.com and I will put you in contact with the case attorney. You could be entitled to a refund of several hundred dollars and possibly additional compensation.

Alert: Property managers are asking tenants to sign releases to get a refund of their amenity use fees. DO NOT SIGN ANY RELEASE OR WAIVER FORM UNTIL YOU HAVE CONSULTED WITH AN ATTORNEY. YOU COULD BE WAIVING YOUR RIGHT TO COLLECT THE MAXIMUM AMOUNT OF COMPENSATION.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at info@vetsteinlawgroup.com.

This post may be considered “attorney advertising.”

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[VIDEO] A Little More About Me…

by Rich Vetstein on September 22, 2011 · 0 comments

in Real Estate Marketing

Hey there. I recently had an opportunity to shoot a video about myself and my philosophy. I’d like to share it with you. I’m not the best in front of the camera, but I’m working on it. Video is quickly replacing the written word. Of course, as you know, writing and blogging is much more comfortable for me than being all “Hollywood.”

The video director asked me what makes me different than other real estate attorneys? Well first, I grew up around real estate, tagging along with my mom to open houses. She was a Realtor in the Metrowest Mass. area for 25 years. I did my homework at her realty office when MLS printed off a dot matrix printer. I knew what a “P&S” agreement was at age 8. Real estate is in my blood.

Second, I’m what I like to call “ultra-responsive.” Real estate is a 24/7 business, and the attorney who doesn’t get that, well, doesn’t get it. I’m available whenever my Realtors, loan officers and clients need me — via text, email, phone, fax, even Facebook and Twitter.

I love what I do. Everyday I get to help people buy, sell, finance and resolve disputes involving their real estate. It’s incredibly rewarding. One day I’ll help a young couple with a baby purchase their first home. Another day I’ll navigate a client through the complex Massachusetts court system. I also help folks start new businesses, counsel them on employment issues, and other legal stuff for small businesses like mine.

If you like this video and want one for yourself, shoot me an email. I’m very friendly with the gentleman who owns the video company.

Here is the YouTube link to the video.

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MCLE (Massachusetts Continuing Legal Education) is holding their popular Real Estate Law Annual Conference on April 7, 2011, at 9:00AM at their offices located at 10 Winter Place, Boston, MA. You can also attend the conference virtually through their webcast on www.mcle.org.

I’m honored to be presenting at the conference on what else but — “Technology Update: Learn How To Leverage Cutting-Edge Technology To Streamline Your Practice.” Real estate tech experts, Jim Sifflard from First American Title, and George Warshaw, Esq. are presenting with me. There are also great sessions on Title Claims, Condominium Law, Ethical Issues and Environmental Concerns.

Hope to see you there!

For the conference brochure click here.

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I put together my first YouTube video, and thought a good topic would be the impact of the U.S. Bank v. Ibanez case on the foreclosure and REO market. The case underscores the necessity of obtaining an owner’s policy of title insurance for any REO transaction, and really any conventional transaction for that matter. Appreciate any feedback, good or bad. I’m no Ryan Seacrest obviously!

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Reporter Steven Altieri of the real estate trade journal Banker & Tradesman recently published an article on the Ibanez foreclosure case, Impending SJC Ibanez, Title Ruling May Invalidate Thousands Of Foreclosures, Why Real Estate Attorneys Expect The Worst, And What It Means To The Industry.

Since we’ve written about the case extensively here, Steve asked for my views about the impact of the case and recent matters I’ve handled with Ibanez title defects:

Framingham real estate attorney Richard Vetstein recently represented a family who had bought a house out of foreclosure about a year ago, then invested in excess of $100,000 in improvements to the property with the intention of selling it to their daughter. But before they could complete the sale, a title issue came up and put the transaction on hold.

In Vetstein’s client’s case, when the original owner was foreclosed upon, the mortgage company did not have a properly recorded assignment. To clear the title, Vetstein had to track down the original owner in Alabama, and persuade him to sign over the deed to the property.

“They can close now that the title issue is solved, but in a lot of cases that [is] not going to be able to be solved,” said Vetstein. “We were lucky, that’s what it came down to.”

Steve asked me how I would handicap the appeal of the case:

Vetstein, who has blogged on the Ibanez case at length, thinks the court might uphold the Ibanez decision.

“Given the current constitution of the court and their tendencies of recent years to be kind of moving towards some pro-consumer decisions, I wouldn’t be surprised if they upheld the land court probably by a slim margin,” Vetstein said. “And so for people who are stuck with an Ibanez issue, that is in essence the worst-case scenario.”

Indeed, it’s unlikely that a “pro-consumer” verdict upholding the Ibanez decision would actually help consumers on the whole. Home buyers or investors who thought they had gotten a good deal and a clean title on a foreclosed property will instead be saddled with hefty legal bills and an inability to sell their property.

Lastly, Steve asked if the Ibanez ruling has created an business development opportunties for real estate attorneys:

“I don’t know of any real estate attorney using Ibanez as a business development opportunity, mainly because solving these title defects, if at all, is incredibly difficult and in some cases impossible,” Vetstein said. “It’s a ‘lose-lose’ in many situations.”

One aspect of the case could potentially provide plenty of work for attorneys. Should the SJC uphold the Ibanez decision, Vetstein reasons that there will be many claims against the foreclosing lenders and the foreclosure attorney, for failing to convey good title.

“There will also be claims for rescission of these transactions,” he added. “There is a class action against lenders and foreclosing attorneys which could encompass many millions in potential damages.”

Banker & Tradesman is a great publication. If you don’t want a paid subscription, you can follow them on Twitter and Facebook.

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While folks here in Massachusetts are finally drying out from the Big Flood of 2010, it’s clear that it has negatively impacted the spring real estate market, and will have repercussions for years ahead for buyers and sellers of affected properties.

Impact On The Market

As recently reported in the Boston Globe, realtors around the state have said the flooding caused canceled and delayed closings, final walk-throughs under inches of standing basement water, and postponements of listing homes for sale. Also, lenders are requiring re-inspections and second appraisals to ensure that homes haven’t lost significant value due to the flooding. This is unfortunate as we’re in the middle of the usual busy spring sales season, made even busier by the soon-to-expire $8,000 first time home buyer credit. (Hey President Obama, how about extending the credit for Massachusetts like you did for the tax filing deadline!).

Disclosure Dilemma

Sellers who’ve been affected by the flooding are asking themselves and their realtors how they should handle the inevitable question from buyers: did your basement flood? Under Massachusetts disclosure law, while sellers are under no obligation to volunteer information, they must answer truthfully to any question posed directly by buyers regarding the condition of their property. Real estate agents are held to a higher standard. They must affirmatively disclose any fact that may have a material impact on whether the buyer would purchase the property. You better bet that whether a home experienced water penetration is “material.”

So, realtors and sellers would be wise to come clean if a home was affected by the recent flooding. The key is how to present the flood damage in the best possible light. Which brings me to the next topic…

Get It Fixed, And Done Right

How did you repair the water damage, and are you taking any steps to prevent it from happening again? Tough questions, because this was a 50 or even 100 year storm event. A flooded basement two weeks ago may never get a drop of water again.

Regardless of whether you are now going to invest in a perimeter drain/sump pump system, homeowners should hire licensed contractors who will pull permits to repair all flood damage. Having it done right will prevent even greater headaches later in the form of mold, dry rot and the like. As my friend general contractor George Lonergan of Lonergan Construction points out, pulling permits gives  sellers the ability to show buyers that flood damage has been repaired correctly by licensed and qualified contractors with sign offs from the local building inspector.

Lastly, I want to point out to buyers that they shouldn’t simply walk away from a home which experienced flooding or has a sump pump system. Many properties in river watershed communities like Wayland, Sudbury, and Natick for example have historically been subject to flooding and wet basements. Seeing a well run and working dry basement system/sump pump/french drain is a good sign actually. What you don’t want is what looks like a dry basement which later floods and then requires a sump pump system later on.

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Boston Globe reporter Jenifer McKim read my blog post, Four Toed Salamanders And SLAPP Suits, and decided that it would be a great topic to write about. Her superb article, How A Salamander Raised A Rights Issue, was published today, and I was fortunate enough to be quoted:

Richard Vetstein, a Framingham real estate lawyer, said the decision was a victory for developers in a state that has an especially tough permitting process.

“Whether it is zoning, whether it is wetlands, you name it, vernal pools, you can invoke some pretty serious regulation and have a property get bogged down pretty quickly,’’ said Vetstein, who wrote about the salamander case on his Massachusetts Real Estate Law blog.

The case is very interesting, pitting free speech rights against developers’ rights to build.

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We Cracked The Top 100!

by Rich Vetstein on March 12, 2010 · 4 comments

in Blogging

As reported through PR NewsWire, the Massachusetts Real Estate Law Blog is now ranked #95 of all legal blogs according to Avvo.com and Alexa rankings! As far as I can tell, this puts us Numero Uno in Massachusetts for all substantive legal blogs focusing on Mass. law.

Much thanks to all of you — our readers — who have made this blog so much more than I could have ever imagined. In the next few months, this blog will see more contributors, more guest bloggers, and will even get a bit of a design face-lift. So stay tuned…

More coverage here, herehere.

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In the recent and well publicized case of the disgruntled condominium buyer suing her realtor over the disclosure of second-hand smoke, the jury today sided with the realtor. The Boston Globe reports today that the jury took less than an hour to deliberate whether a realtor was liable for allegedly not disclosing to a condominium buyer that her downstairs neighbors were heavy smokers. The trial lasted an entire week, so the fact that the jury was out less than 1 hour demonstrates that they completely rejected the condominium buyer’s claims. Given the facts reported, I think the jury got it right here.

As the Globe reports, although the claims were ultimately rejected, the fact that this case made it all the way to a jury should serve as a warning to realtors to be careful about what they say (or don’t say) about any type of property condition, whether on site or off site. Don’t make statements unless you’ve investigated the facts, and don’t make promises that you cannot back up. That’s what got this realtor into trouble in the first place…

Click here for my previous post on the case.

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peeling-paint.jpgBreaking News (8/10/10): Two Local Real Estate Firms Fined By Mass. Attorney General For Lead Paint Housing Discrimination

My Boston.com fellow blogger, buyer’s agent Rona Fischman, has fielded several questions recently regarding the Massachusetts Lead Paint Law. Prospective renters have called apartment listings only to be hung up on abruptly with a “It’s not deleaded!” if they hear a child in the background or if they answer truthfully about having children. Mothers have received termination notices when the landlord discovers they are pregnant – usually of course for tenancies at will. Finally, there is a listing this week in a local paper for an owner occupied 2 family rental which states “Unit Not Deleaded” right in the ad.

The short answer is these are all likely violations of the Massachusetts Lead Paint Law, and could expose the offending landlords to stiff penalties and damages.

Under the Massachusetts Lead Paint Law, whenever a child under six years of age comes to live in a rental property, the property owner has a responsibility to discover whether there is any lead paint on the property and to de-lead to protect the young children living there. A property owner or real estate agent cannot get around the legal requirements to disclose information about known lead hazards simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. And property owners cannot refuse to rent simply because they do not want to spend the money to de-lead the property. Any of these acts is a violation of the Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.

As the stories above show, landlords routinely flaunt, or are just plain ignorant of, the law. The issue becomes what to do about it and is it worth the time and aggravation? I guess that depends on your situation. Certainly, if you are being threatened with a discriminatory eviction, your first step should be to contact the Massachusetts Commission Against Discrimination (MCAD) and your local Fair Housing Commission. In a recent case, the MCAD hit a property owner with $25,000 in damages and fines for evicting a young family to avoid de-leading. Next consider hiring a housing discrimination attorney. If you are low on funds, the atMassachusetts Lead Paint Lawtorney may agree to take the case on a contingency because violations of the lead paint law and discrimination laws provide for the reimbursement of attorneys’ fees and enhanced damages.

As for the “Unit Not Deleaded” ad, while may be truthful, it might as well read “Children Under 6 Not Wanted.” I would advise a landlord to avoid this sort of indirect discriminatory preference.

Lastly, the law is conflicting regarding owner occupied two family homes.  Chapter 151B, the state anti-discrimination law, exempts owner occupied two family homes from the prohibition of discrimination against children. However, there is no such exemption written into the lead paint law. So if a child is born into a owner occupied 2 family, it must be de-leaded. Vacation/recreational rents and short term (31 days or less) rentals are also exempt from the lead paint law.

As always, contact me, Attorney Richard Vetstein with any questions.

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The Los Angeles Times and other media outlets are claiming that lenders’ use of loan cost worksheets and estimates are a “sidestep” of the new RESPA mandated Good Faith Estimate which went into effect on January 1. HUD officials say they plan to conduct a review of the growing use of “worksheets” and “fee estimate” forms by mortgage lenders providing quotes to home buyers and refinancers. Lenders vehemently deny that they are doing anything wrong; in fact, they argue, cost worksheets are necessary because of several glaring deficiencies with the new Good Faith Estimate. This is all part of the shake-out during the first 30 days of the new RESPA reform which went into effect on January 1.

The new closing cost rules under the Real Estate Settlement Practices Act (RESPA) significantly changed the manner in which lenders are required to estimate loan and closing costs. Many charges cannot deviate at all, or at most by a 10%, from the Good Faith Estimate to the closing. That’s in stark contrast to earlier rules, which essentially allowed some lenders to quote low estimates of total costs, with no responsibility for the final dollar charges at closing, HUD contended.

Lenders — many of whom are feel the new GFE is the single worst government form ever to hit the real estate industry — respond that since the new GFE has a number of major deficiencies, such as not providing a total monthly cost payment, seller paid items and most importantly cash-to-close, it justifies the worksheets/estimates. (And if you can believe this, there’s no place on the GFE for the borrower to sign!).

Lenders, what are your complaints with the new GFE? (Try to keep them under 10!). Do you think providing these worksheets will ultimately help consumers? Are the criticisms about the worksheets unfair? Did HUD get it wrong with the new GFE? (I think I know the answer to that!). What can HUD do to improve it?

There is nothing explicit in the new RESPA rules prohibiting the use of these cost worksheets/estimate. Since this practice is on HUD’s radar, my recommendation to lenders is to explain clearly to the customer, preferably with a written disclosure right on the estimate, that this is not binding and not a substitute for the new GFE. That way, if HUD comes knocking on the door, you’ve covered yourself.

My goal with this post is to get the conversation going on the new GFE, not to rail against the mortgage industry. I’m on your side! As Jerry Maguire said, “Help me, help you…help me, help you!”

On a related note, as buyer’s counsel I now insert a rider provision into the P&S providing that the seller agrees to an extension (up to 7 days) of the closing date due to any RESPA/GFE related delays.

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David Gaffin, Greenpark Mortgage

I’m pleased to welcome another guest blogger, David M. Gaffin, a licensed Loan Officer with Greenpark Mortgage Corp. of Needham MA. Dave is licensed to originate in MA, NH and FL. You can visit him at Greenpark Mortgage or through his LinkedIn profile.

The new 2010 RESPA rules are all the rage right now. So I’m especially pleased to have a mortgage industry veteran like Dave to offer his views on the new rules, especially the new Good Faith Estimate (GFE).

So, you thought getting a home loan for purchase or refinance before was confusing? Well, I’ve got GREAT NEWS for you. Your government has heard you and has come to help! (Insert Sarcastic Mental Voice.)  The federal Housing and Urban Development agency (HUD) has dismantled the previous 1 page Good Faith Estimate that itemized most of the settlement charges for your loan and created a new 3 page “simplified” GFE to “help borrowers understand and compare the costs associated with obtaining a mortgage.”

In my opinion, HUD is trying to do at least 2 things for consumers:

1. Protect the consumer from dealing with shady mortgage companies that will disclose certain fees on the GFE, and then charge higher or additional fees at the closing table and

2. Encourage consumers to use the GFE as a shopping tool to ensure a fair deal.

An informed consumer will typically make better choices than an ill-informed one, so the premise behind the changes to the new GFE is a worthwhile one. However, there are several areas where a consumer may not be able to compare the costs of loan programs on an equal basis and thus make the most appropriate loan choice.

Page 1 of the new GFE groups together all of the “Adjusted Origination Charges” (e.g. processing and underwriting fees, points, doc prep, etc.) as one figure and the Charges for All Other Settlement Services (e.g. closing attorney fees, title insurance, recording fees, etc.) associated with closing your loan as another figure and adds them together to come up with the Total Estimate Settlement Charges.

The new GFE also spells out your loan amount, loan term, interest rate and the initial monthly payment for principal interest and any mortgage insurance.

However the new GFE does not include expected expenses for monthly real estate taxes, homeowners insurance, or home owner’s association dues. Nor does it inform the borrower about expected funds needed to close the loan. Because all the origination charges are lumped together, the new GFE is not specific in disclosing the number of points required to close the loan. It also does not include the Annual Percentage Rate, or APR.

Escrow funding for reserves of real estate taxes, home owner’s insurance and mortgage insurance are included on page 1.

However, despite the fact that this total sum should be uniform across lenders, the new GFE allows the lender to quote whatever number of months of reserves they choose, resulting in a variance of hundreds or thousands of dollars when comparing GFEs. This is not a borrower savings from lender to lender. At settlement these charges will be the same for all lenders.  This could result in the borrower unexpectedly bringing additional funds to the closing.  Some mortgage companies will try to gain a competitive advantage by initially disclosing lower escrow totals.  This would be an unfair and deceptive trade practice to the consumer.

Page 2 breaks into sections the charges for All Other Settlement Services which will include such newly disclosed charges as Owner’s Title Insurance, (which is an optional, but recommended purchase) and Transfer Taxes.  In many states, the Transfer Taxes are disclosed as a borrower–related cost, even though the borrower may not be responsible for this cost, thereby inflating the Total Charge Estimate.

Page 3 gives the consumer information about which expense items on the GFE cannot increase at settlement, which one’s can have a total increase of a 10% increase and which ones can change without limit. The origination charges cannot change at settlement.

Lenders who allow borrowers to choose settlement service providers will receive a Page 4 to the new GFE which will list those providers.

Analysis:  Does the new GFE Help Consumers Or Is It Just Another Complicated Form?

I have been in the mortgage industry for many years and have advanced educational degrees. I have passed my required national and state licensing exams and even I find this form to be confusing and not very helpful when comparing loans. My job as a loan consultant is to inform and educate my clients so that we arrive at the best loan program for them with the least costs based on their needs. I use different tools to compare programs, including cost/benefit analysis, total interest paid comparisons, length of loan term reviews, etc., but, with the new GFE rules, I must disclose 1 loan program within 3 business days of collecting 6 points of entry for an application. If I fail to do so, even if the borrower and I have not determined the best program for them yet, I am in violation of the law. I do not see how this helps the borrower determine the best loan program.

I will give HUD credit for trying, and as this is now the law of the land it is what we must all work with, however, given the vast departure from the look and feel of the previous form, it is going to take a lot of education on the part of loan officers, realtors and attorneys to establish a comfort level with the borrower’s understanding of the form.

When a borrower chooses a lender, they should be referred by someone they trust, should check out the lender’s and loan officer’s reputation by reviewing its website or other public information and feel comfortable that the loan officer is knowledgeable, understands their needs and has the borrower’s best interests in mind.  Then a GFE received from that company can be viewed as a Good Faith Accurate, and not just a Good Faith Estimate.

Dave, thanks so much for your insightful analysis! This is a great post and a boon for our readers. This underscores why borrowers must have an experienced and knowledgeable loan officer such as David Gaffin on their team.

I have certainly spend a fair amount of time digesting the new changes, but perhaps that is because I am so used to the old forms. The irony may well be that many consumers will be seeing the new GFE for the first time and may not be as confused as some of us industry veterans. Adjusting to major changes to long standing practices is always difficult.

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