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Irwin Law
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 4691
Experience:  Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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I am the owner of my house from a Quit Claim Deed and was originally

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I am the owner of my house from a Quit Claim Deed and was originally served with my mother who was the mortgage holder but only listed on the original Lis Pendens. She was never served because she lived at a different location. All correspondence came to my house. She has died and now the new attorney (plaintiff) for Federal Home Loan Mortgage is sending documents to me with only her name on them claiming she was served and never responded trying to receive a default judgement against us. They seem to want the default because my name is XXXXX XXXXX the mortgage note.
I need a precedent ruling in Florida allowing me to represent the fact they have no standing as she was never served so again a lack of proper service. I plan to file an Affidavit of Heirship which i believe might allow me to represent the estate since there was no will or probate.
Are there any precedents in Florida to allow the son to represent his mother and or the property? How can the bank keep this knowledge from the court when I, the Quit Claim owner was originally served and they tried to serve the mortgage holder (mom)at the same wrong address where the Quit Claim owner lived?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Irwin Law replied 1 year ago.

NOTE: THIS IS BEING SUBMITTED AS AN INFORMATION REQUEST AND NOT AN ANSWER.

Hello and thanks for submitting your question to Just Answer. You question is not a difficult one to answer and doesn't require a great deal of legal research - at least not for someone with 40+ years experience in this field. However it is critical to know the following: Was the QC deed to you recorded prior to your mother's passing? Was it recorded prior to the foreclosure suit being filed? I am not clear on whether you were named as a defendant in the foreclosure suit, or just your mother? As soon as you clarify this, I can let you know where you stand.

 

Customer: replied 1 year ago.

It was recorded prior to my mother's death and prior to the foreclosure suit being filed. We were initially both named on the suit and the Lis Pendens was sent to my house and I responded within the 20 days however my mother had a different address and never was served or ever responded. She was the only one on the note. The case has been idle for years and a new attorney group sent documents to my house with only her name on them for a hearing coming up stating service of process has been effected and there was no timely response. I know I can beat this if I have the right to defend because she was never served. I plan to file an Affidavit of Heirship which I believe allows me to represent the real property from the estate. What are your views on this? I need a precedent case which shows the court I have the right to defend this and submit documentation. Can you help? Thanks

Expert:  Irwin Law replied 1 year ago.

Thanks for the additional information. I have been in this situation numerous times. I have often had to instruct the foreclosure attorneys how to process their case because my clients who were the owners just wanted the blasted thing over with. I have one now where my clients have been collecting rent on their mother's home. She died in 2005. We still get certified mail addressed to her. Okay, now let's get to your situation. To begin with, FHLMC does not need your mother in the suit. They can actually dismiss her and just proceed with a non-personal judgment against you. That gives them the right to hold a sheriff's sale and acquire the home. All they lose by not joining your mother is the right to a personal judgment against her, and I'm guessing that's not worth very much now. Of course as a named defendant, you can appear pro se and file any defensive pleadings you wish. I have to stop at this point because I don't know what the botXXXXX XXXXXne is that you wish to accomplish in the long run.
I hope that this information is helpful. Please click on a smiley face so that I will be
compensated for assisting you. If you have a follow up question please send me
back a Reply without entering any rating. Also, be sure to verify this
information with a local attorney who is familiar with your local laws and
procedures. Thanks again for using Pearl.Com- Just Answer. Your business
is appreciated.





Customer: replied 1 year ago.

They have removed me from the documentation not her and she is gone so no money. I need responses to help me not the bank's rights. Are you saying the new attorney using only her name can have a sheriff's sale without my name being mentioned? What precedent do you have that I can submit defenses. That is what i asked for. You say even though she is on the mortgage and never served that's ok?That seems to be an improper service if she is never served, no? Explain?


I have a management conference and hearing coming up and I need to know my defenses are heard. I requested a hearing extension but no answer yet. I have a securitization audit coming and I need to stay in the house till this is heard at trial. Will this be able to be finalized in the hearing or will I at least get a trial?

Customer: replied 1 year ago.
Relist: Incomplete answer.
I would like my questions reviewed by another party who finishes with follow-up answers.
Expert:  Irwin Law replied 1 year ago.

I'm back. Sorry for the delay . I can assure you that I have more experience in this area of law than anyone else here. If you'll be patient I can explain your situation in terms you'll understand and you'll be satisfied with the answer. That is unless you think there is case authority which says get to keep the home free and clear of the mortgage. That will not happen. Case law is not going to help you. Without extensive legal training and experience in this area, you won't understand the technical jargon in them and you won't know if they help or hurt you. I am also not confident that you understand the procedural aspects of the case. I seriously doubt that they have dropped you from the foreclosure suit. They must have you as a defendant because you own the home and without you in the case, they can never acquire clear title through a sheriff sale, and that defeats the whole purpose of a foreclosure. You might have to check with the court clerk tomorrow to verify exactly what your status is. As far as your mother's rights are concerned, once she transferred title to you, the lender could opt to proceed against you and the property only and simply take the property . They would give up on getting a personal judgment against your mother. Therefore arguing about whether she was served with summons or not when the case was filed, for you is a waste of time. I suspect that once the attorneys for Freddie wake up to the situation, they will simply move for summary judgment against you and that will be that, because realistically, you have no defense. I have no idea how long it will take them to figure this out. Your best chance of staying in the home long term is to keep as quiet as possible and hope the attorneys keep the case inactive as long as possible. Continuing the case management conference and hearings was exactly the right thing for you to do. Believe me, Freddie's lawyers don't like to work these cases and are often very content to let them die from old age. Let me know if this helps clarify your situation. I may be away from the computer, or assisting others, so if you send a reply, please be patient. It doesn't seem like anything will happen in your case very quickly, P.S. If you do find that you are in fact not a defendant in the foreclosure case that opens a number of doors, legally speaking. But you have to be 100% certain of that.

I hope that this information is helpful. Please click on a smiley face so that I will be
compensated for assisting you. If you have a follow up question please send me
back a Reply without entering any rating. Also, be sure to verify this
information with a local attorney who is familiar with your local laws and
procedures. Thanks again for using Pearl.Com- Just Answer. Your business
is appreciated.





 

 

Customer: replied 1 year ago.

The latest attorney for Freddie only sent documents with my mom's name and says they never received an answer. That's why I stated she was never served. I was originally on the lawsuit with my mom so why can I not respond as an owner or can I?


 


If the loan was never established correctly how can they have standing to take the house with a summary judgement?


That's why I am waiting on the securitization. This will tell if they even set up the trust as per federal law under securitization. What if they don't have the original note which this will show?Also did they record the Lis Pendens. Why as the home owner exactly do I have NO defenses. Aren't these valid reasons? I want to pay you so please clarify.


do i have the right to respond even though I'm not on the original mortgage.

Expert:  Irwin Law replied 1 year ago.

I was originally on the lawsuit with my mom so why can I not respond as an owner or can I.

Yes, you can respond, and if you haven't filed a formal answer denying the complaint, you are in a position to have a default judgment taken. Keep in mind that when the foreclosure was filed, you, not your mom owned the home.

If the loan was never established correctly how can they have standing to take the house with a summary judgement?

What do you mean by "...never established correctly"...?

That's why I am waiting on the securitization.

The securitization defenses are conjured up by some very creative lawyers. They generally succeed in stalling the inevitable foreclosure. But in 99% of the cases, the documents get produced and the courts find against the homeowners.

Also did they record the Lis Pendens.

This is a completely bogus defense. The LP has nothing to do with the validity of a loan. It is merely notice to the public that a lawsuit involving title to property is pending. It is to protect people from buying real estate where title is being contested. Nothing more.

Why as the home owner exactly do I have NO defenses. Aren't these valid reasons?

You took title subject to the mortgage and note. There aren't many defenses to a suit on a note. The most successful on is payment. All that Freddie has to show is that their mortgage was of record prior to your deed and that the note is in default. That will be the basis of their motion for summary judgment. Your only defense to that is to show that the note has in fact been paid which would require a trial on that issue. You can't allege that, so summary judgment will be entered against you foreclosing the mortgage, ordering sale etc... The "defenses" you've mentioned are designed to stall, not to win. What you need to do tomorrow is call the clerk of the court and ask if you are listed as a defendant in the case.

I hope that this information is helpful. Please click on a smiley face so that I will be compensated for assisting you. If you have a follow up question please send me back a Reply without entering any rating. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

 

 

 

Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 4691
Experience: Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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