Hello: This is PhillipsEsq. I am a licensed Attorney and I will be assisting you today.we took out a home equity loan on our house to purchase a 2 acre lot with mobile home for a daughter who lived in conn and wanted to move here to n.c. the property in question is paid for by the loan we took out on our home as we couldnt get it on the mobile home property.in good faith and trusting our own daughter we added her name to the deed ,we only had an oral agreement that she was to pay the loan payments until the loan was satisfied.she payed for a few years then sold her house in conn and moved into the trailer with her boyfriend and 2 kids.she stayed for roughly 6 months,left the boyfriend and moved back to conn,,they made 1-3 payments then stopped paying so we r now stuck with 7 more years of making the payments.we hired a older lawyer and wanted to sue for the amount of the loan but he wanted to sue for want and waste,.she filed a motion accusing us of renting it out and not giving her her share of the rent.we filed to have her motion thrown out also as she accused us under the ricco act.anyway the judge denied our want and waste motion and wouldnt throw hers out...surely there is something we can do to get her held responsible for the loan,we currently rent the mobile home to pay the loan thats 325.00 per month plus the taxes each year,taxes that she has failed to pay in 3-4 years now,,it is becoming a burden on us but it is our home thats in jepordy.Response:
Quite regrettably, since the loan is not in her name, you cannot sue her to force her to pay her share of the loan. However, you can sue her to force her to pay her share of the real estate
taxes since you added her name to the deed. With her name not being on the loan, she unfortunately, has nothing to lose since she obviously does not care about what happens to the property. Any unpaid property taxes would go on the property as a lien and the City/County would eventually auction the property if the taxes remain unpaid. The bot***** *****ne is that you cannot sue her for the loan because there is no legal ground for the lawsuit because her name is ***** ***** the loan. Your oral agreement for her to be responsible for the loan will not be enforceable due to Statute of Frauds, which requires that any agreement dealing with real estate transaction to be in writing in order to be enforceable. Eventhough the doctrine of Promissory Estoppel and implied contract theories of Unjust Enrichment
and Detrimental Reliance could be used to overcome the defense of Statute of Frauds, I do not see it being used successfully in this case, regrettably.
Promissory Estoppel is a tool used to defeat an argument that an agreement is not enforceable because it is not in writing. This doctrine is used to obtain an equitable remedy—to argue that it will be unfair not to enforce a verbal agreement with someone because you have already done something/performed your side of agreement and therefore that the Court must not allow the other party to back out of the verbal agreement and that fairness demands that your verbal agreement be enforced.
Using Unjust Enrichment theory, it should be argued that she has already benefited from the use of the property and should not be allowed to benefit and not pay for it.
Using Detrimental Reliance, it should be argued that because you relied on your daughter' promise to pay for the expenses for the mobile home and incurred expenses for the mobile home that you would not have incurred but for the promise that she should be forced to pay for the loan and the real estate taxes.