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I am executor to an estate which includes a house which is

 
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  • Answered by:socrateaser
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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?

 

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Country relating to Question: United States
State (if USA): Illinois

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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?

Submitted: 283 days and 10 hours ago.
Category: Real Estate Law
Value: $40
Status: CLOSED

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Expert:  socrateaser replied 283 days and 9 hours ago.

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.

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Category: Real Estate Law
Pos. Feedback: 98.4 %
Accepts: 5408
Answered: 7/4/2012

Experience: Attorney and Real Estate broker -- Retired (mostly)

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