Freedom of religion is one of the most protected rights in the United States. Among the laws that uphold this right are the

The Purpose of RLUIPA

Congress created RLUIPA to address the need for expanded religious protection in the area of land use. RLUIPA helps to increase the ability of religious institutions to exercise their objectives without facing restrictions when it comes to the use of their property. The lawmakers who made this law argued that religious assemblies are unable to function without a physical space adequate to their needs and religious requirements.

RLUIPA also helps to protect the right to religious exercise for institutionalized people. Because institutionalized individuals were often denied the chance to practice their religious beliefs, Congress wanted to make sure that there is a sufficient number of opportunities to do so.

The Land Use Laws of RLUIPA

RLUIPA prohibits zoning and other land use restrictions that substantially burden the religious exercise of churches as well as other religious assemblies. This prohibition applies in situation in which:

• The state or government entity imposing the burden receives financial funding
• The substantial burden affects interstate commerce
• The substantial burden rises from the state or local government’s formal or informal procedures
• The procedure applies to churches, religious schools, and other religious organizations

The Institutionalized Persons Provision of RLUIPA

RLUIPA’s institutionalized persons provisions are designed to keep officials from placing arbitrary restrictions on the practice of religious beliefs. Prisoners lose certain rights upon their imprisonment, but always maintain First Amendment rights. RLUIPA, however, prohibits regulations that impose a substantial burden on prisoners’ religious exercise. Regulations that are classified as a substantial burden are only permitted if the government is able to meet the standard that the regulations are the least restrictive way to achieve a compelling interest.

How RLUIPA is Applied by Courts

Courts review RLUIPA cases with five principles in mind:

• Religious organizations benefit the public welfare.  
• A refusal exists to second-guess legitimately held religious beliefs.
• Local ordinance boards that are responsible for implementing zoning laws must make sure to follow every effort to accommodate religious use
• Religious use of land can not be prohibited in a residential area; the prohibition of religious use of land in a commercial area is uncertain
• There are many legitimate reasons behind zoning, but taxing is not one of them

Speak with an Experienced Land Use Attorney

If you are part of a religious congregation that is subject to discriminatory zoning laws, you should not hesitate to obtain the assistance of an experienced zoning law attorney. The attorneys at Resnick Law are also prepared to help individuals whose rights have been violated under RLUIPA. Contact our law office today to schedule an initial free case evaluation.

(image courtesy of Isaac Ordaz)

A deed in lieu of foreclosure is a process by which the homeowner signs over his or her interest in a property to the mortgage lender in full settlement of the mortgage loan owed. A deed in lieu of foreclosure is also known as a mortgage release. Once the homeowner signs over the interest, he or she may have to immediately leave the home, unless he or she negotiates an exit plan that allows him or her to stay in the home for a short period of time. In some situations, the homeowner may receive financial relocation assistance.

Unlike a short sale, the homeowner in a deed in lieu of foreclosure gives up equity in the property when he or she signs it over to the lender. This means that the homeowner gives up the right to receive any money made in excess of the mortgage debt owed once the home is sold. This excess money is referred to as surplus, and is usually paid to the homeowner if the home is sold under other conditions.

While deed in lieu of foreclosure transactions generally release the homeowner from all obligations relating to the mortgage loan, the homeowner has to be careful when signing the agreement. In entering the agreement, the homeowner can agree to be responsible for any unpaid part of the mortgage loan after the home is sold. The homeowner should closely read the agreement releasing the homeowner from the mortgage loan carefully. Even if the lender has made verbal promises that the homeowner will be released from a deficiency, the promise has to be in writing.

Homeowners should note that the deed in lieu of foreclosure does not take care of any other underlying debts secured by the home. If the homeowner owes a second mortgage on the home, or another kind of loan that was secured by the property, the homeowner will still be liable for those loans. For this reason, the mortgage lender would have to foreclose on the property in order to get clear title. This may mean that if the property has multiple liens on it, the mortgage lender may be less willing to accept a deed in lieu of foreclosure.

Like with a short sale, the deed in lieu of foreclosure does have a negative effect on the homeowner’s credit history, but it is less damaging than a foreclosure.

Contact Us for Legal Assistance

There are different way in which homeowners can avoid foreclosure if they are facing financial hardship. If you are feeling overwhelmed, and think you can no longer afford to make your mortgage payments, call us at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan. Our experienced attorneys can guide you through different alternatives to avoid foreclosure.

(image courtesy of Gus Ruballo)

When a homeowner is facing foreclosure because of financial problems, and also has other significant debts that are unmanageable, bankruptcy may be the best way forward. However, when a mortgage debt is discharged in a

Reaffirmation of a debt in Chapter 7 bankruptcy means that the person filing for bankruptcy excludes the debt from the debts discharged through the bankruptcy process. The creditor and the debtor agree to waive the debt’s discharge in bankruptcy.

Generally, when a person files for Chapter 7 bankruptcy, there is a period of time known as a stay period, during which creditors are required to stop all collection attempts. If a foreclosure has been started, it has to be put on hold during this stay period. However, the foreclosure action will not be held off indefinitely, and the homeowner has to either reaffirm the mortgage loan or lose the home. In reaffirming the mortgage loan, the homeowner agrees to make on-time payments on the loan and abide by whatever other terms are included in the reaffirmation agreement.

Reaffirmation has to be done before the bankruptcy is discharged, and the mortgage lender has to agree to the reaffirmation. Some lenders may not agree to the reaffirmation because the homeowner has been late on payments or missed payments in the past. If the mortgage lender agrees to the reaffirmation, it could require that the homeowner first make up any missed payments.

Even with a reaffirmation agreement, after the bankruptcy, if the homeowner misses payments on the mortgage or otherwise breaches the reaffirmation agreement, the lender can begin foreclosure proceedings again. If this happens, the homeowner can remain on the hook for any balance after the home is sold. This would be a major disadvantage over dismissing the entire mortgage loan in the bankruptcy.

Before deciding whether to reaffirm a mortgage loan, it is important to discuss this issue with an experienced attorney. While the decision to keep your home after a bankruptcy can be an emotional one, it needs to be approached rationally. If reaffirming the debt will only lead to more missed payments and eventually a foreclosure proceeding, it may not be in the homeowner’s best interest to reaffirm the loan.

It is important to also have an attorney review any reaffirmation agreement to ensure that the homeowner’s interests are well represented, and that the terms are not too difficult for the homeowner to keep up with.

Contact an Experienced Attorney

If you are experiencing financial troubles and foreclosure seems like a possibility, you need to speak with an experienced attorney from a firm that handles both foreclosures and bankruptcy. Our experienced attorneys can discuss the legal issues that will arise with either a foreclosure or a bankruptcy and how they will affect you. Call us at Resnick Law, P.C., in Bloomfield Hills and Detroit, Michigan.

(image courtesy of Eric Parks)

While enacted by locally elected officials, did you know the state Constitution provides that citizens of municipalities in Michigan have the legal right to submit petitions challenging new zoning laws? Even before new zoning laws are enacted, state law requires that certain processes are followed and notices are given to ensure due process is followed. (Two related statutes are the Michigan Zoning Enabling Act and the Michigan Open Meetings Act.)

Generally, a new zoning ordinance or amendment goes into effect seven days after a notice of adoption is published in a newspaper of general circulation in the community. If a citizen wants to challenge a new law, as is any resident’s right, time is of the essence. The process also varies depending on the type of government enacting the restrictions.

Challenging a Township or County Zoning Ordinance

For a township or county zoning ordinance, citizens have seven days to file a notice of intent for a petition challenging the zoning law. With the notice of intent filed and the effective date of the ordinance or amendment on hold, citizens then have 30 days to submit a petition to the clerk with a specified minimum number of signatures. (The amount of signatures must be no less than 15 percent of the total vote cast for governor within the jurisdiction at the preceding general election. The clerk will generally let you know the required number of signatures needed.)

If a petition is filed within 30 days and the clerk determines it meets eligibility, the ordinance or ordinance amendment will then be placed on the ballot for voters to decide at the next regular election, or a special election called for that purpose. Should a majority of voters vote in favor of the ordinance or amendment, it then becomes law; anything less and the amendment or ordinance becomes invalid.

Challenging a City or Village Zoning Ordinance

Known as a protest petition, property owners in a city or village may challenge a new zoning amendment anytime before the municipal legislative body takes final action on the proposed change.

A protest petition must be signed by at least 20 percent of the landowners affected by the proposed change. If a protest petition is received and validated by the clerk, the legislative body can only enact the ordinance with a successful supermajority vote (usually a two-thirds majority, unless a larger vote — not to exceed three-fourths — is required) in favor of the zoning amendment for it to become law.

Not Everything is Challengeable

The one challenge that is beyond an individual citizen’s rights is to undo what has already been done. In other words, there is no statutory authority for Michigan citizens to petition for the repeal of zoning after it has been adopted and become law. What it all means for landowners — and those who demand a say in local land governance within their community — is that you have a voice. If there are proposed zoning restrictions you don’t agree with, you have the legal right to challenge them.