How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask evanesq Your Own Question

evanesq
evanesq, Lawyer
Category: Real Estate Law
Satisfied Customers: 957
Experience:  19 years of experience.
24718964
Type Your Real Estate Law Question Here...
evanesq is online now
A new question is answered every 9 seconds

We lost a home in Flathead County to foreclosure in early 2009.

Resolved Question:

We lost a home in Flathead County to foreclosure in early 2009. There was 1st and a 2nd which was a HELOC, both were purchase money loans. Can the second still come back on us?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  evanesq replied 1 year ago.

evanesq :

Good evening- thanks for requesting me.

evanesq :

Are you here?

Customer:

Yes.

Customer:

I'm here.

evanesq :

Welcome back

evanesq :

lol where'd you go?

Customer:

I had a client show up to pick up some papers.

Customer:

To add to my questions...does it make a difference if the 2nd is the parent company of the 1st?

evanesq :

Hello?

evanesq :

Oh there you are

evanesq :

Now you're gone again

Customer:

Yes...I keep responding but you don't seem to be receiving.

evanesq :

And all I see is you coming in and going out lol

evanesq :

ok stay there

Customer:

Let me try a different internet connection.

evanesq :

and he's gone again lol

evanesq :

oh wait

evanesq :

you're there

Customer:

Okay...this should be better. Sorry.

Customer:

Can you see me now!!

evanesq :

I can see you now!

evanesq :

and you're gone again lol

evanesq :

ok

evanesq :

stay there!

Customer:

I'm here the whole time...for what ever reason my connection is in and out so please just go ahead and type and I will respond as quickly as I can. :-)

evanesq :

Okay. Montana is a non-recourse state with respect to purchase money mortgages.

Customer:

Okay.

evanesq :

If you can prove that the HELOC was used totally for purchase money, you should be protected.

evanesq :

Second, Montana is a one-action state.

evanesq :

That means the lender can EITHER foreclose or collect on the note.

evanesq :

If the lenders are the same, I would argue that the one action statute covers both loans.

evanesq :

I think you will be fine.

Customer:

Even if the 1st does business under a different name? (First Horizon vs First Tennessee-parent company)

evanesq :

Its a good question- there's no black and white on that.. but if they do come after you, it's a good argument.

evanesq :

Was the HELOC used for the purchase?

Customer:

Yes, all of it.

evanesq :

Then you should be fine anyway. Purchase money mortgages are non-recourse mortgages.

Customer:

It was a 90-10-10 loan

Customer:

Oops 80-10-10

Customer:

So if my credit report shows it as having been charged off with all three credit agencies why would the 2nd still be inquiring on my credit?

evanesq :

it's a good question. Have they contacted you at all?

Customer:

No. We haven't hear a word from them since the foreclosure proceedings.

evanesq :

If you want to be bold, I suppose you could contact them and ask them why they are pinging your credit when you have no obligations to them. If they say they are waiitng to collect on the second, you will raise your defenses- that the HELOC was a purchase money mortgage and it was foreclosed.

evanesq :

And that the state is a one-action state and they chose foreclosure with respect to their first mortgage.

Customer:

Is there any other way to show proof that they are not due that money because of the foreclosure? We never received a 1099 C from them either, so wouldn't that add to the argument that it was discharged with the foreclosure?

evanesq :

Yes.

evanesq :

Now keep in mind, these are legal defenses that you can raise.

evanesq :

Technically, HELOCs are not afforded anti-deficiency protection, because usually, they are not purchase money mortgages. But your situation is clearly different. When it comes down to it, you may need to hire an attorney to assert these defenses on your behalf.

Customer:

Defenses yes but still no way to provide to proof to a third party (which is why I am asking) I have a third party wanting proof.

evanesq :

Ah. I understand. Yes, that's difficult, especially if no one sent you a 1099C

evanesq :

Well, short of asking them for written confirmation (which is kind of absurd), not sure how you prove that. Maybe you could inquire as to why you never received a 1099C..

Customer:

Is there a statue of limitations on this?

evanesq :

Montana statute of limitations on contracts is 8 years.

Customer:

8 years from origin?

evanesq :

8 years from the time when the right to sue accrued.

evanesq :

Can't you just give your third party a copy of the statute:

evanesq :

71-1-232. Deficiency judgment not allowed on foreclosure of purchase price mortgage. Upon the foreclosure of any mortgage, executed to any vendor of real property or to the vendor's heirs, executors, administrators, or assigns for the balance of the purchase price of the real property, the mortgagee is not entitled to a deficiency judgment on account of the mortgage or note or obligation secured by the mortgage.

evanesq :

If it was a purchase price mortgage, they can't get a deficiency judgment.

Customer:

I have sent them the statute but they still are not satisfied.

evanesq :

Then short of asking the HELOC lender for confirmation, I'm really not sure what else you can give them.

Customer:

I believe you are right. Bummer of a deal. Thank you for your help. I was familiar with much of the information you provided. I was hoping for a legal zinger that would provide the proof they are after but I don't think that is possible.

evanesq :

I'm sorry I couldn't do more for you. Good luck.

Customer:

Thank you for your time. Have a good day.

evanesq :

You as well.

evanesq, Lawyer
Category: Real Estate Law
Satisfied Customers: 957
Experience: 19 years of experience.
evanesq and 10 other Real Estate Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    6227
    20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    4966
    13 years real estate, Realtor. Landlord 24+ years
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    4446
    I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg Ray's Avatar

    Ray

    Lawyer

    Satisfied Customers:

    4030
    Texas Attorney for 29 years dealing in real estate
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    2377
    12+ yrs. of experience including real estate law.
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    2355
    B.A.; M.B.A.; J.D.