November 2009 Newsletter

1. Press Release. November 1, 2009

Wesoloski Carlson, P.A., a law firm with offices in Miami and New York is opening a satellite office in Key West. “Our law firm is happy to bring our legal services down to clients in the Keys”, reports Erik Wesoloski, principal shareholder of Wesoloski Carlson.

“Residents in Monroe County must trek up to Miami to file a bankruptcy. This trip is onerous and disorientating for many, and we are glad to save them the trip and difficulty by bringing our lawyers to them.” In addition to assisting clients with bankruptcy, Wesoloski Carlson also counsels clients on asset dispositions (aka short sales), foreclosure defense, loan modifications, regular real estate transactions and trust and estates matters.

The Key West office is located in Old Town across the street from the courthouse at 302 Southard Street, Suite 201, with ample parking available on the building premises. The firm will begin taking client appointments every other Friday beginning November 6, 2009. The phone number of the Key West office is 305-517-6589.

Wesoloski Carlson is a full service law firm that concentrates in real estate and business law from its offices in Miami, New York and Key West. Nothing contained in this press release is intended to be a solicitation for legal services and is purely informational in its content.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements or press releases. Before you decide, ask us to send you free written information about our qualifications and experience. Outcome or results are not guaranteed.

2. Documentary Stamp Tax on Short Sales

Florida imposes documentary stamp tax on a deed, instrument or writing that conveys any interest in real property. The tax imposed is calculated based on the “consideration” given for the transfer. Consideration includes, but is not limited, to money paid or to be paid, the discharge of an obligation and the amount of any mortgage or encumbrance. Consequently, when the seller executes the document that transfers real property to the purchaser, it is transferring an interest in real property and, thus, is taxable.

In common real estate transactions, the lender receives full payment of the loan obligation. Once the lender has determined that this obligation is satisfied, the lender then agrees to satisfy its lien on the property. On the other hand, in short sale transactions, there is a partial satisfaction rather than full satisfaction of the loan obligation. The lender has determined that given the circumstances it is willing to take present value dollars in satisfaction of the loan obligation, thus, discounting the amount of the loan by the full or partial cancellation of the amount of loan debt that is not satisfied in the short sale transaction. This cancellation of debt is valuable to the seller; however, it is not consideration for the transfer. The seller’s agreement to satisfy its lien and cancel a portion of the seller’s debt is a separate and unrelated transaction between the seller and the lender. The lender is not related to or controlled by either party and neither the lender nor any of its related parties is receiving an interest in the real property. In essence, the lender has merely evaluated its risk as a creditor and has made the decision to cancel a portion of the debt in return for payment of a lesser amount.

It was unclear whether the Legislature intended to impose a tax on the amount cancelled by the lender as there was no specific provision for or definition of a short sale of real property with regards to the requirements of documentary stamps. Fortunately, current policy of the Florida Department of Revenue exempts short sale transactions. Thus, when the lender cancels indebtedness of the seller, that cancellation of debt is not included in determining the amount of consideration subject to tax under the Florida Statutes.

By Erik Wesoloski
Attorney
Wesoloski Carlson P.A.

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