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Question

Is it legal to sell my house under a contract for deed when I have a nonassumable VA guaranteed loan, as long as I keep making the payments? If so, then how would taxes and ins. be handled, as they are currently escrowed. I live in Minnesota and my mortgage is through Chase Home Finance.

Submitted: 38 days and 18 hours ago.
Category: Real Estate Law
Value: $40
Status: CLOSED
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State/Country relating to question: Minnesota

Posted by Mary Meaden Esq 38 days and 17 hours ago.

Answer

You must check the language of your mortgage to determine if the transfer of the property is even permitted under the mortgage wjile the mortgage is being paid (let alone whether or not the mortgage is assignable and/or assumable). My bet is that there is language somewhere in the mortgage that states that you cannot transfer the PROPERTY without the mortgage holder's consent, and if you do, that is an event of default and they can ask for the loan to be paid immediately and then foreclose on the loan if you are unable to pay the full mortgage amount. If by chance the transfer is NOT prohibited by the terms of the mortgage, then you can sell the property and continue to pay the mortgage. Taxes and insurance would continue to be escrowed with the mortgage -- the only way you can change this is to apply to the mortgage lender to see if they would be willing to permit the taxes and insurance to be paid outside of the mortgage. Because the loan is non assumable, my bet is that VA/Chase will not entertain any proposals to change the taxes and insurance escrow, but anything is worth asking for. If you fail to make the mortgage payments, the mortgage will still be a lien against the property and the lender can still foreclose -- and if the house sells for less than what is owed on the note, the lender can sue you for any deficiency amount that remains unpais on the note after the sale (although suits by lenders for deficiency amounts are getting rarer these days because of the number of foreclosures they are already dealing with). I hope this gives you the guidance you seek. GOOD LUCK. Please press the GREEN ACCEPT BUTTON so I will receive credit for my time. THANK YOU !

38 days and 16 hours ago.

Reply

Would it make a difference if I did a lease/option on it, with a buyer, contingent on them obtaining financing at the end of that time? Then would it just be a regular sale with my obligation being to pay off my loan?

 

I am retired, over 65, and live on a totally fixed income (SS and VA DIC). I am able to make my payment (just) but not able to do much more than that. I want to move to another state, and still not default on my loan.

 

If the bank should foreclose on this house, how long does that take. My house is my only asset other than 3500 in the bank, If they sue me, can they touch my fixed income?

I only have 2 and 1/2 yrs owning this house, so the equity is not great, and the appraised value far lower than when bought, tho still above loan by about $12,000. Family keeps telling me to just let it go, and file bankruptcy on 28,000 of CC debt. That amount represents 2 CCs at very low interest rates for the life of the loans. I don't carry any other CC debt.

 

I don't want to do either a foreclosure OR bankruptcy, but if I did, I just have no idea of the status of my fixed income. I have no intention of buying another home or applying for any credit, so wrecking my credit doesn't bother me, but being on the streets does.

 

Mainly, I can't maintain the home physically, want to move to be closer to family and also need to be in a warmer climate for health reasons. I am looking for a way to both satisify all obligations and do that.

 

Also, isn't it fraud to intentionally default on a loan, when actually I am paying (actually, them)? Thank you, and I assure you I will pay you. I have used Just Answer before, and paid even when I couldn't be helped. Your initial reply certainly indicated a CD was a bad plan, and I appreciate knowing that up front.

 

 

 

 

 

Posted by Mary Meaden Esq 38 days and 16 hours ago.

Answer

Yes, you could do a lease with an option to purchase so long as the deed is still in your name and the renters obtain financing to pay your loan off at the end of the rental term. This is not a transfer of the property w/o lender consent -- it is simply a lease and THEN a purchase. Your social security and VA benefits are NOT attachable by the court to pay for any deficiency on a house sale or foreclosure, they cannot be attached by credit card creditors and if you declared banktupcy, those income items are exempt from attachment. The only things that SS & VA benefits can be attached for are IRS debts, student loans and child support. Other than that, your creditors are out of luck, and when they find out your source of income, the lender(s) probably will not bother to sue you (I say probably because some might sue thinking that you have some money somewhere to pay them). Regarding a foreclosure -- the entire thing takes 6-9 months depending upon the lender's backload of foreclosures (traditionally, it was about 3-4 months, but with the volume of foreclosures in recent years it can take a lender up to a year to foreclose). I think that answers everything? Please let me know if there is anything I missed or anything else you would like to know. THANKS!

38 days and 16 hours ago.

Reply

Thank you. I didn't get the answer regarding whether or not it is considered fraud to bankrupt CCs or allow a foreclosure when I can pay it at this time. In other words, to do either or both when I am not in arrears? I don't want to get arrested either.

 

Then, two other quick questions. If I am not paying my house payment or CC bills, I obviously would be accruing funds because of not doing so. Even though the funds would be technically from my fixed income, would they count as such?

 

The second question is regarding the $3500 I indicated I do have in reserve in my savings. Is there an income limit I am allowed to keep? I also forgot to mention I do have a car, even though it is paid for.

 

With answers to the above questions, I think I have things clear. The rest is just a moral dilemna for me.

 

I appreciate the time and effort you have spent on these questions. You have been knowledgeable and honest, and that makes a big difference to me. I know I could have asked these same questions of a local Real Estate Person or Lawyer, but they are obviously trying to further their own agendas, and I trust this site for good answers. You are no exception. You have put my mind at ease in many areas, and I feel that I can tackle this situation with a bit of knowledge ahead of the game. Thank you again.

 

I am willing to pay an extra ten dollars at the end of our sessions, but I'm not quite sure how to do it.

 

 

 

 

Accepted Answer

Typically, prior to a bankruptcy, you should stop paying the CC bills a few months prior to the filing -- but that is something the bankruptcy attorney would advise you about. Obviously, for the house to go to foreclosure you would have to fail to make 2 or 3 months payments. The legal criteria for bankruptcy is that your debts must be greater than your immediate assets (not including what you can pay in your paycheck). That's another conversation that you have with a bankruptcy lawyer. Most consults with bankruptcy lawyers are free, so you should arrange a consult as soon as you can. Regarding fraud and bankruptcy, fraud occurs when you keep the credit cards and use them for 3-6 months prior to the bankruptcy (the court can take a "look back" and make you pay for anything that you charged on the cards in that period prior to the filing). Other than the look back period, there is nothing that would rise to a fraud level that you could even contemplate with your situation. If you leave the funds that are accruing in the bank account where your SS & VA are direct deposited, then that account cannot be garnished because the source of the income is clear cut. Regarding garnishment of anything: this will not happen in bankruptcy, particularly in a CH 7 bankruptcy where the court simply wipes out all of your debts and lets you start "fresh" so to speak. Regarding the money in your account and your car: there are exemptions under the bankruptcy code for items that are necessary everyday living items (one car), and you are allowed to keep a certain amount for household living expenses going forward (the $3500 would fall here - believe the last time I checked the limit was $5,000 cash on hand for household expenses). Ma'am -- PLEASE do not feel like there is something morally wrong with declaring bankruptcy!! In this current economic environment, upwards of 10% of the population is either declaring bankruptcy or contemplating it (its about the same level as the unemployment rate). The law does not want you to starve or be homeless in order to pay CC bills -- and some of those companies can be brutal. Consult with a bankruptcy attorney ASAP -- your financial situation is about right to declare bankruptcy -- and think of the Celebrities and those "wonderful" types who go bankrupt every single day. Those are the people who should be having the moral dilemma over what to do -- NOT you. GOOD LUCK. Please press ACCEPT, and then in order to pay a BONUS for this question, a box will appear after you press ACCEPT and you will be given the choice of whether or not to pay a Bonus & leave Feedback.

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Expert: Mary Meaden Esq
Pos. Feedback: 98.2 %
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Answered: 10/15/2009

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12 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues

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