My Mother got a foreclosure summons on her home. Seems her grandson who had her Power of Attorney hasn't been making payments. We are working this out, but need to file something with the court to tell them. She doesn't have much money, so if this is something we can do at this step it would help her. Is there anything special we need to do?
Country relating to Question: United States
State (if USA): Michigan
Hello and thanks for asking your question. My name is XXXXX XXXXX X will be assisting you. There are essentially two separate legal issues here. The first is that the lender is not being paid. The second is whether grandson has been breaching his fiduciary duties under the POA by failing to make the payments. You can't really use grandson's failure to make payments as a defense to the Foreclosure - the botXXXXX XXXXXne in the foreclosure case is that lender is not being paid. Under these circumstances, the lender is entitled to pursue payment, through foreclosure or otherwise.
The first step would be to file an "answer" in the foreclosure case on behalf of mother during the time provided for in the summons. That would prevent a default from being entered against mother. Once that is done, it would be important to negotiate with the lender to see if this issue can be resolved. For example, does mother have money available (that you can get from grandson) to get caught up on the Loan? If so, that could be one potential resolution. If mother does not have the money to make payments, keep in mind that grandson (as the POA) has the right to make the decision to stop paying if there are insufficient funds to do so and he needs the limited money to support mother in other ways.
Not a simple matter, but each of the two issues must be addressed separately.
Thanks, XXXXX XXXXX all that, I am just wondering if we can file an reply ourselves? Basically, we are talking to the bank and to another one. I just don;t want to not respond to the summons. Can we file it and what do we need to put on it? I know I have to reply to each thing and address it item by item. I think the bank will work with us but I need to get something to the court also. Is it OK to file something ourselves and is there anything that will keep them from accepting it? Is sending the paperwork certified mail to the bank OK to constitute "service"?
Thanks for the reply and the follow up questions. Someone needs to respond to the suit on behalf of mother. It needs to be someone with the authority to do so. At this point, if mother is competent, she can file an answer. Otherwise, the POA grandson would need to respond on her behalf or hire an attorney to do so.
Can we serve our reply via certified mail? Does format of the response matter? Will they not accept it if it isn;t written by an attorney?
As stated above, the response needs to be filed by mom or her agent. Her agent would be the POA (grandson) or an attorney hired by grandson acting in his capacity as POA. If you file an answer, you risk that your answer is stricken because it is not mom filing it. Service is usually effected by regular mail. You can check local court rules to confirm. The format should be in the form of an answer to the complaint. It should have the case caption and the responses to each numbered paragraph in the complaint. You can find sample "answers" on the Internet to help you structure the format of your answer. Finally, it doesn't have to be written by an attorney, but it will need to be signed at the end by an authorized party.
Corporate, Real Estate, Estate Planning, Probate and General Litigation attorney 14+ years
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