Question:    I am a real estate closing attorney.  Last week we closed a sale, and paid off the Seller’s mortgage lender exactly as stated in the payoff statement.  A week later the Seller’s lender called, threatening to send back all payoff funds – because they discovered approximately $2,000 of additional fees.  Can the lender do that?
 
Answer:       Let me get this straight:  The Seller’s lender sent you a written statement showing all funds required to satisfy the Seller’s debt….you closed and sent them all funds requested…then, a week later, the lender demands more money.  Sounds crazy.  But, they can actually do this.
 
What they cannot do: threaten to return all the payoff funds. 
 
Massachusetts law allows banks to request additional funds after payoff is made.  However, they must seek payment on a civil basis, like an unsecured creditor.  The same law requires lenders to discharge their mortgage, upon payment of the amount quoted in a written payoff statement. 
 
The lender’s threat is unlawful, and constitutes a likely title insurance claim.  Here, the lender is threatening the good and marketable nature of the title.  This potential harm to the new owner’s ownership, and new lender’s security rights, is often covered by the new title insurance policy.  Seek assistance from the title insurance company, and write a letter demanding that the lender retain the payoff funds and discharge their mortgage.
 
Of course, the whole dispute may be extinguished if the Seller simply pays the additional sum demanded.  (Good luck, there). 
 
Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.  This column is published for informational purposes only and not to be relied on as legal advice, in any manner

Question:         I was my Mom’s Health Care Proxy.  When it was time to make decisions about her end of life treatment, I had little guidance.  We never really spoke about her desires.  I struggled to make the choices she would have wanted.  Are there other options, beside, just a Health Care Proxy document? 

​Answer:           Your Mother trusted your judgment above everyone else.  I am sure you honored her well.  Yet, I understand your desire for more specific directions.  It is not easy making important end of life treatment decisions, without a script.  Fortunately, since 2012, there is an additional form to help fill in the blanks left with a basic Health Care Proxy document. 
A MOLST form, instructs health professionals about a patient’s decision to accept or deny certain life sustaining medical treatment.   MOLST is an acronym which stands for Medical Orders for Life Sustaining Treatment.  Completed together with a physician, physician’s assistant, or nurse practitioner, the form captures a patient’s desires for or against:

• CPR Resuscitation;
• Intubation;
• Ventilation;
• Dialyses;
• Hydration;
• Nutrition;

Unlike a Living Will, which has no legal significance in Massachusetts, a MOLST form signed by the patient and his or her medical professional, will stand as a valid legal directive.  Coupled with a Health Care Proxy form, seniors, or anyone with significant medical needs, will be well represented without any doubts.  MOLST forms can be obtained at your Doctor’s office or online at www.molst-ma.org  

​Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.  This column is published for informational purposes only and not to be relied on as legal advice, in any manner.  

Question:     My favorite television attorney, Saul Goodman, (from “Breaking Bad” and “Better Call Saul”), created Attorney/Client confidentiality by simply getting a dollar from someone.  Is the exchange of money required to create an Attorney/Client relationship? 

Answer:          I remember that episode.  “Put a dollar in my pocket” he screamed to the criminals, in order to be bound to keep their secrets.  Some visitors to my office actually try forcing a dollar bill in my pocket, to have their secrets protected.  It creates an uncomfortable mood for the meeting.  Payment of money, though, is not required to create an Attorney/Client relationship. 
An individual can become a client based on various reasons.  An implied relationship may arise based upon the perception of the individual.  According to an Attorney Risk Management professional, David Grossbaum, Esq., “factors that might lead a court to conclude that the attorney impliedly agreed to provide legal services include”:

• written correspondence between the attorney and potential client,
• payment by the potential client for an attorney’s costs or fees,
• future meetings scheduled or contemplated,
• discouragement of seeking advice from another attorney,
• the potential client’s reasonable reliance on the attorney’s advice.

Looking at this list, and related caselaw, an individual can create an Attorney/Client relationship many ways.  Payment for services is certainly the easiest and most obvious manner.  An attorney who needs to create an Attorney/Client relationship quickly, can do so with the exchange of payment.  Though, an unwilling attorney can likely get around the “dollar in the pocket” trap. 

Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.  This column is published for informational purposes only and not to be relied on as legal advice, in any manner. 

​Question:      My mom just died.  Her will leaves everything equally to my sister and Me.  But, my Mom and I held a joint account together.  This sizable account does not pass through her will.  I am being told the account is now mine.  I don’t know if this was Mom’s intention, or if she wanted me to split this with my sister.  How should I proceed?
Answer:         Parents often hold assets jointly with one child as a matter of convenience.  Joint ownership allowed you to help Mom with her accounts while she was alive, and creates a probate avoidance situation.  You have direct access to the money regardless of your Mom’s death.  But, ask yourself: did your Mom intend for things to stop there, or did she want you to split them with your sister?
You may not have an immediate legal obligation to share your assets with your sister.  But, she may be able to file a lawsuit, seeking half of the jointly held account.  Her argument will rely upon limited provable evidence, such as written language in her will or elsewhere.  Clauses are often used in a will to confirm a parent’s intentions regarding jointly held assets.   
This clause may not be enforceable on its own, but is valuable as evidence in a larger lawsuit.  Obviously, your Mom is not available as the key witness to determine her intentions.  Many folks resolve these issues on a moral basis – vs. a legal one.    
You know your Mom, and your sister, better than most.  You and your sister will need to live with each other for years to come.  If holding the funds to yourself creates a lifelong rift with your sister, assess your personal losses against your financial gains.  Also, consider the cost of defending against a potential lawsuit from your sister. 

​Attorney James Haroutunian practices real-estate law, estate planning and probate at 630 Boston Road, Billerica. He gladly invites questions at james@hlawoffice.com or by phone at 978-671-0711. His website blog is found at www.hlawoffice.com.