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I am executor to an estate which includes a house which is in default. THe mortgage holder has filed a foreclosure suit and named all of the heirs as defendants. None of heirs were parties to the original mortgage. how can i get them dismissed from the suit?
Optional Information: Country relating to Question: United States State (if USA): Illinois Already Tried: I'm thinking that filing an inheritance disclaimer for them should remove them from the action. If so, what is the mechanism to remove them? Do I have to file a motion to dismiss?
Title 735 ILCS 5/2-407 provides that a party may file a motion to have parties dropped for misjoinder at any time during the proceedings as "the ends of justice may require."So, the procedure is to simply file a motion and declare facts to the court showing why the defendants should not be a party to the case -- i.e., because only the personal representative of the estate is authorized to represent the estate in court, and the beneficiaries have no interest in the property until the estate is distributed. Note: The above-described argument may or may not be valid. It's possible that a beneficiary may have some equitable interest that the lender seeks to terminate. But, it would be up to the lender to show that interest. Hope this helps. NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!
Experience: Attorney and Real Estate broker -- Retired (mostly)