Our office is once again sponsoring a team for the Sharon Triathlon which will be held on August 14, 2011. Our team includes our own Scott Clifford. This year we are raising funds for The Ellie Fund. The Ellie Fund is a Massachusetts based non-profit organization that eases the effects of women suffering from breast cancer by providing transportation, childcare, housekeeping, groceries, and nutritious prepared/delivered meals free of charge to hundreds of women and family members across Massachusetts each year. We hope to raise in excess of $20,000.00 this year for this great cause. If you would like to donate please go to http://www.firstgiving.com/fundraiser/scott-clifford/sharontriathlon2011. If you would like to learn more information please email Scott J. Clifford at sclifford@elclaw.com.

In the case of Wentworth v. C. Becker Custom Building, the Supreme Judicial Court of Massachusetts ruled that a general contractor that pays workers’ compensation benefits to an employee of an uninsured subcontractor is not immune from liability for common-law claims the injured employee may have against the general contractor. Employers are typically exempt from common-law liability under G.L.c. 152, § 23 of the Massachusetts Workers’ Compensation Statute. The general contractor in this case argued that since it was required to cover an injured employee of a subcontractor who failed to maintain workers’ compensation coverage that it should not be exposed to a direct lawsuit by the employee on the employee’s common-law claims (which are typically referred to as third party claims). The SJC concluded that § 23 only applies to employers and employees, and did not apply to a general contractor who may be obligated to provide workers compensation benefits to employees of an uninsured subcontractor pursuant to § 18 of the Statute.

Everyone has seen those catchy ads for auto insurance where you can go on-line and save $500.00 on your auto insurance by picking and choosing your own coverage. The problem is that most of us do not know what we are picking. As an example, I have met with three clients in the last month who all in an attempt to lower their cost of auto insurance chose an $8,000.00 PIP deductible (two of the three did this on-line). Well they certainly saved some money on the cost of their annual auto insurance bill. However, what they did not realize is these minimal annual savings would cost them thousands of dollars in unpaid medical bills if they were involved in an automobile accident regardless of who was at fault. Sure enough, each was involved in an automobile accident and sustained some minor injuries. As a result of their choice of this PIP deductible, each was then required to pay their own medical bills despite the fact that each and everyone one of them had some form of health insurance. Before, you make a change to your automobile insurance coverage contact us at sclifford@elclaw.com to discuss what your short term savings may cost you long term.

I am happy to report that the long awaited overhaul of the Massachusetts Homestead Act is one step closer to becoming reality. While there are several important changes in the current proposal being debated on Beacon Hill, the most significant change is the creation of an automatic level of protection. Currently, unless you file a Declaration of Homestead at the Registry of Deeds the equity in your home is not protected. Under the new proposal, every homeowner would be granted this automatic protection of up to $125,000.00 of equity in one’s home without the need of filing any Declaration at the Registry of Deeds. As is the case now, if you choose to file a Declaration of Homestead at the Registry of Deeds this would this would allow you to obtain higher levels of protection, $500,000.00 for the typical homeowner and $600,000.00 if you qualify as disabled or are over the age of 62. In addition to this significant change, the new Act would eliminate the confusion that has developed over the years due to the typical language you see in a mortgage that terminates a previously filed Declaration of Homestead, allow transfers by family members or tenants in common without the need of filing a new Declaration of Homestead and allow beneficiaries of realty trust to exercise the protection of the Homestead Act. It is anticipated that the bill when it passes will contain the necessary language making these changes retroactive to all homeowners in addition to previously filed Declaration of Homesteads meaning no new filing is required.

As of March 1, 2010, all persons who own or license personal information about a resident of the Commonwealth of Massachusetts must met the minimum standards of 201 CMR 17.00 for the safeguarding of personal information contained in both paper and electronic records. The purpose of the regulation is to protect the security and confidentiality of customer information, protect against anticipated threats or hazards to the security of such information and protect against unauthorized access or use of such information that could result in substantial harm or inconvenience to any consumer.

At the very minimum this requires all businesses that deal with personal information of customers to have a written policy to comply with this regulation. Personal information as defined by 201 CMR 17.02 means “a Massachusetts resident’s first name and last name or first initial and last name in combination with any one of the following data elements that relate to such resident: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; provided, however, that “Personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.”

If you have any questions or concerns regarding your written policy that is needed to comply with this regulation, please do not hesitate to contact sclifford@elclaw.com.

Because of the financial crisis that has hit homeowners over the last two years, a lot of homeowners who have defaulted on their mortgages are attempting to sell their homes in order to avoid foreclosure and salvage their credit. Unfortunately, due to the decline of property values in our area, some homeowners cannot sell their homes for sufficient enough amount to pay off their existing mortgage balances.

As a result, HUD has put into place the Pre Foreclosure Sale (“PFS”) procedure. There are several restrictions, but homeowners who utilize the PFS procedure can sell their homes for the current fair market value which often times is less than the amount they owe to their lender. Under this program, HUD compensates the lender for the difference in the sale price vs. the outstanding balance on the loan.

Please contact us at (781) 829-9100 or sclifford@elclaw.com if you find yourself in this situation and want to know if you meet the criteria necessary to utilize the PFS procedure.

If a person receives SSDI payments as a result of being disabled in a motor vehicle accident and then receives a settlement from the driver responsible for the accident, does Social Security have a lien on a third party settlement?

Based on current regulations and statutes, Social Security does not have a lien, however, pursuant to 42 U.S.C. 1395y(b)(2) (“The Medicare Secondary Payer Act”) provides that Medicare beneficiaries are required to reimburse Medicare for injury-related medical expenses paid by Medicare on a conditional basis for which recovery has been made as legal settlement with a third party. As of January 1, 2010, third party insurers will be obligated to inform Medicare any individual who is seeking a third party settlement who may be entitled to Medicare. Therefore, it is very important to identify at the beginning of a case whether or not their will be a potential Medicare recovery so that we can properly coordinate which Medicare paid medicals are related with the third party insurer and so that proper funds can be paid to Medicare at the time of settlement.

As of January 1, 2010, any application for a mortgage loan will require the Lender to provide the Borrower with the new three page Good Faith Estimate (“GFE”). Mortgage loans are governed by RESPA regulations. After many years of planning and roundtable discussions, in 2008 the Department for Housing and Urban Development (“HUD”) came up with the initial changes to the RESPA Regulations that began on July 1, 2009.

The overall goal of the revisions to the RESPA Regulations was to bring more clarity and transparency to the process. Some of the main components of the changes that became effective on January 1, 2010 include: 1.) a new three page GFE (which is only good for ten days and cannot be changed by the Lender unless there are “changed circumstances”); 2.) Up front disclosure of the Yield Spread Premium (“YSP”) by mortgage brokers; 3.) Tolerance limitations that prohibit any variation to some fees on the GFE while allowing some limited variations to other fees on the GFE that the Borrower is allowed to shop for (the goal here was to hold Lenders accountable for the fees they disclosed on GFE and to encourage Borrowers to shop for their loan); 4.) A new HUD-1 Settlement Statement that now mirrors the GFE to make it easier for borrowers to verify the fees they were quoted and the actual amounts charged; and 5.) Lenders can now disclosure average charges for certain services that are required as part of the loan process.

Since most of these changes are happening at once and are foreign to even people who have borrowed in the past, please call us if you have any questions or concerns on how the new RESPA regulations will effect you or how to understand the new GFE.

As some of you know, the U.S. Government has expanded the homebuyer tax credit so that first time homebuyers are not the only ones eligible to receive the credit. If you previously owned a principal residence for more than five consecutive years in the last eight years, and, you are within the income guidelines, then you can qualify for a credit of up to $6,500.00. You must then own the new home for the next three years or you could be subject to repaying the tax credit.

Some important features of the homebuyer tax credit program include the following:

• The credit amounts to ten percent of the purchase price, up to a cap of $6,500.00;
• You need to sign your P&S Agreement no later than April 30, 2010 and must then close on or before June 30, 2010;
• You must be up to date with your federal taxes to receive the full credit;
• This credit is claimed on your 2010 tax return;
• Those who have not owned a principal residence in the last three years might be eligible for a credit of up to $8,000.00.

There are many more details, including income guidelines; therefore, you should consult the IRS website and/or a tax professional to see if you qualify for all or a portion of the first time homebuyer and/or repeat homebuyer tax credit on your 2010 tax return.

As of April 5, 2010, there will be another change to the smoke detector regulations (527 CMR 32.00 et seq.) that will directly effect those trying to sell homes in Massachusetts. This change to the existing regulation will apply to single and multi-family homes built (or recently renovated) before 1975. The regulations require two different types of smoke detectors to be in place depending upon the location in the home. Smoke detectors within twenty (20) feet of a kitchen or bathroom will be required to use photoelectric technology only. Those smoke detectors outside of the 20-foot kitchen & bathroom zone will be required to have both ionization and photoelectric technology. Homeowners/Sellers can make their homes compliant by either installing dual technology units or by installing separate units. It is very important to note that only photoelectric technology may be used within twenty (20) feet of a kitchen or bath.

If you have any questions or concerns, you can check with your local fire department or contact us.