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    Aug112012

    SETTLING DECENDENTS' DEBT... WHAT YOU MUST KNOW ABOUT YOUR RIGHTS... AND THOSE OF COLLECTORS

    Published 2012

    If your spouse or parent died recently, hopefully bill collectors will leave your family alone for a short time… but they won’t for long.  Whether an outstanding utility bill or an unpaid credit card debt, bill collectors are now more easily able to hassle the family and friends of the deceased customer, thanks to a mandate by the Federal Trade Commission in 2011.

    For your convenience, I have summarized the main points of this Federal Trade Commission fact sheet below:

    When a person dies, collection agents must identify someone they can speak to regarding outstanding balances on a deceased’s accounts.  If an executor or administrator exists, this is the obvious contact.  In examining current industry practice in collecting debt, the FTC found that when an official “executor” or “administrator” does not exist, some collectors resort to alternative methods of identifying the appropriate contact person.  Examples include “cold-calling” relatives and determining “proof of responsibility” by asking questions such as “Are you the person handling final affairs?” “Do you open the decedent’s mail?” or “Did you pay for the funeral?”  Some collectors send letters addressed to “The Estate of…” etc. prompting family members to call collectors to discuss debts.  Further, some collectors imply that a family has moral obligations to settle the deceased’s accounts out of their personal funds (p44917).  This statement not only describes the types of individuals whom debt collectors may contact to collect on deceased accounts, but also explains what collectors may do to locate them, without being subject to FTC enforcement efforts.

    The Federal Register goes on to explain that if collectors are unable to determine who to contact to settle a decedent’s debts, they may communicate with others in a further attempt to identify the appropriate contact person (which is referred to as a "location communication") (p44919).  The FTC does encourage collectors to make “a good faith effort” to seek the information before pursuing the location communication route, and describes “a good faith effort” to be as simple as checking court probate records.  In terms of a deceased debtor, collectors making a location communication may state that they are seeking to identify and locate the person with authority to pay outstanding bills of the decedent, but may not provide any information regarding specific debts (p44920). 

    Opponents of strict laws related to this type of non-disclosure communication argue that written communication addressed to the estate is sufficiently targeted towards the appropriate person handling the estate to constitute a collection communication rather than a location communication (p44920).  Therefore, they maintain that in these initial letters, collectors should be permitted to identify debt owed and request payment (p44920).   The Commission disagrees with this, and believes that such letters are “often opened by individuals who do so in an effort to help out, but who lack the authority to pay the decedent’s debts from the estate’s assets” (p44920)

    The Federal Register continues on, stating that the Commission will not take enforcement action for violating Section804(2) of the FDCPA against a debt collector who includes in location communications a general reference to paying the “outstanding bills” of the decedent out of the estate’s assets, but does caution collectors from using the term “outstanding bills,” and from implying in other ways that the decedent was delinquent on bills (p44921).

    In setting boundaries for these communications with family members after a decedent’s death, some consumers requested the FTC set a designated “cooling-off period” during which collectors must respect the family’s right to grieve before actively pursuing monies owed.  The Commission ultimately decided against setting such a period, as they felt current restrictions, which prohibit collectors from contacting consumers at an “unusual or inconvenient time or place,” were sufficient (p44921).  The Commission further decided against setting an approved list of questions for collectors to use, in an attempt to discourage inappropriate or leading questions (p44922).  The Commission requires that a collection agency not engage in conversations which might mislead consumers into believing that they are personally responsible for paying the decedent’s debt, but does state that there may be some instances in which an individual contacted might be responsible for paying the debts out of his own personal assets or those jointly owned with the decedent (p44922).

    In a concurrence statement, Commissioner Julie Brill writes:

    “In view of the pitfalls of allowing debt collectors to contact family members to identify the person who has authority to pay outstanding bills from the decedent’s estate, the Policy Statement is crafted to limit potential abuses. First, when contacting the family members, the debt collector must include in the statement that he is looking for the person who is responsible for paying the outstanding bills of the decedent “from the decedent’s estate.” Second, until such time as it is established that the debt collector is talking to the person with such authority, the collector cannot reveal that the decedent owes a debt.  This should eliminate any opportunity by debt collectors to make appeals to those without authority to pay bills from the estate’s assets to pay a debt out of a sense of moral obligation.  Third, the Policy Statement makes clear the debt collector’s general responsibility to disclose that the person with authority to pay the debts from the estate is not required to use his individual’s assets to pay the decedent’s debt.  Finally, if the debt collector does reach the person with authority to pay the bills from the estate of the decedent, that person stands in the shoes of the “consumer” and must be given notice that he is entitled to proof of the decedent’s debt and has the right to contest it” (p44923).

    (For the Federal Trade Commission's entire policy statement regarding communication in the collection of decendents' debts, visit http://www.ftc.gov/os/2011/07/110720fdcpa.pdf.)

    If your family has recently lost a loved one, you can be sure a representative will be in contact to settle their accounts.  There is one company that specializes and focuses exclusively on deceased debts:  DCM Services LLC of Minneapolis.  DCM says in its company fact sheet that it "manages collections on more than $1 billion in deceased accounts per year with an extremely low complaint rate" (http://www.dcmservices.com/pdf/DCM_FactSheet.pdf).   In addition to rigorous collection training built around industry best practices, DCM Services provides extensive compassion and sensitivity training for its service representatives.  DCM Services will be persistent in their attempts to collect on debt owed, but you can expect representatives to be polite and respectful. 

    When the time comes to begin settling the accounts of a lost family member, the most important thing you can do for yourself, and your family, is to know your rights.  Don’t hesitate to seek the counsel of a professional who is well-versed in estate settlement to ensure your family's rights are respected by creditors during this sensitive time.

    Friday
    May252012

    IRS Exceptions to Reporting the Sale of Real Estate

    Published 2012

    Over the past eleven years, I have represented sellers of real estate in Virginia and have provided sound legal guidance and assistance with their varying needs.  In my representation of two individual clients recently, I have encountered two different title agencies who (both) were unfamiliar with the IRS regulations on which real estate transactions are exempt from reporting on a 1099-S.  Subsequently, I am now of the opinion that sellers of real estate should hire only attorneys, and they should insist that their attorneys be the reporting agent  for the sale to the IRS on a 1099-S, when required.  This is discussed below.

    The settlement agent for a transaction is listed on the HUD*.  As they are RESA** (Virginia) and RESPA*** certified, they are the responsible reporting entity, or filer to the IRS.  There can be a written designation agreement naming another person designated in the agreement as the person responsible to file.  

    As a real estate attorney who represents sellers in these transactions, I have read the IRS requirements and am able to inform my clients as to whether they will receive a 1099-S from the settlement agent.  When the settlement agent fails to report on a 1099-S to a seller (who is required to report the transaction to the IRS), the seller is not off the hook with the IRS.  The settlement agent really has no fiduciary duty to the seller in the transition or to a purchaser in the transaction, either.  An attorney who is not a settlement agent (and has no other legal conflicts with a title agency, a lender, a financial institution, or the seller) is the only person who can truly represent a purchaser or seller in real estate transaction.  Purchasers and sellers should hire an attorney and not rely solely on a title company to represent their interests.

    If the sellers of real estate are EXEMPT from reporting their sale on a 1099-S, then they provide a Certification of No Reporting to the settlement agent.  This certification of exception is signed under penalty of law by the seller.  The IRS explicitly allows the reporting filer to rely on that signed certification, and not report an exempt transaction and to NOT file a 1099-S in the seller’s name.

    Some settlement agents are in need of a review of the obligations on reporting transactions under the 1099-S rules.  This review can conveniently be found on the IRS 1099-S Instructions form.

    I have taken an excerpt from the IRS Instructions which states the exception:


    Exceptions 

     The following is a list of transactions that are not reportable:

         1. Sale or exchange of a residence (including stock in a cooperative housing corporation) for:

    • $250,000 or less if that such residence is the principal residence (within the meaning of section 121) of the seller and the full amount of the gain on such sale is excludable from gross income under section 121.
    • If the seller is married, the sale may be $500,000 or less.
    • If there are joint sellers, you must obtain a certification from each seller (whether married or not) or file Form 1099-S for any seller who does not make the certification.  The certification must be signed by each seller under penalties of perjury.  You may get the certification any time on or before February 15 of the year after the year of sale.  You may rely on the certification and not file or furnish Form 1099-S unless you know that any assurance on the certification is incorrect.  You must keep the certification for 4 years after the year of sale.  You may keep the certification on paper, microfilm, microfiche, or in an electronic storage system.  You are not required to obtain the certification.  However, if you do not obtain it, you must file and furnish Form 1099-S.

     A title agent is required to provide the seller with either a Form W-9 or an alternate form soliciting the sellers' SSNs, prior to the closing.  These days, most consumers are hesitant to share their social security number.  Since a title agency has a high traffic volume, with many people in and out of the office each day with no fiduciary duty to the sellers, it is better to keep the confidential information in the office of the seller's attorney.

    Going forward, it is my recommendation that every attorney that represents a seller when only a title agent is the settlement agent designate themselves as the reporting agent for the IRS and have that in a written agreement.  

     

    *HUD: Federal Urban Housing and Development.  The HUD-1 Settlement Statement is a standard form required by the Federal government when financing a purchase or refinancing a residence. The settlement agent uses it to itemize services and fees charged to the borrower in the transaction.

    **RESA: Virginia Real Estate Settlement Agents Act, formerly the Virginia Consumer Real Estate Settlement Protection Act

    ***RESPA: Federal Real Estate Settlement Procedures Act

    Exceptions

     The following is a list of transactions that are not reportable:

         1. Sale or exchange of a residence (including stock in a

             cooperative housing corporation) for:

    ·         $250,000 or less if that such residence is the principal residence (within the meaning of section 121) of the seller and the full amount of the gain on such sale is excludable from gross income under section 121.

    ·         If the seller is married, the sale may be $500,000 or less.

    ·         If there are joint sellers, you must obtain a certification from each seller (whether married or not) or file Form 1099-S for any seller who does not make the certification. The certification must be signed by each seller under penalties of perjury.  You may get the certification any time on or before February 15 of the year after the year of sale. You may rely on the certification and not file or furnish Form 1099-S unless you know that any assurance on the certification incorrect. You must keep the certification for 4 years after the year of sale. You may keep the certification on paper, microfilm, microfiche, or in an electronic storage system. You are not required to obtain the certification. However, if you do not obtain it, you must file and furnish Form 1099-S.