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 Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101594
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
7286322
Type Your Real Estate Law Question Here...
Ely is online now
A new question is answered every 9 seconds

I purchased a home in Buffalo NY I placed 40,000 cash and

Customer Question

I purchased a home in Buffalo NY I placed 40,000 cash and she the owner held the mortgage for 3 yrs ... at the end of 3 yrs she asked me to have my attorney close it out. I agreed he worked the numbers and I informed her I was ready to make payment, she in turn living out if state said she would be in town in a few weeks and would have her lawyer do it, I agreed. During this time my lawyer handed over 79,000 + we thought was over. At this time her attorney sent us a letter we owned $3,000 for a missing payment which is not true and collection of the loan ~ why should I have to pay many collection of loan when she and I have her voice mail saved saying she wil be in to have it taken care of and it was within days of her arrival.. She cashed the check for the $79,000+. Now we are looking to sell the home and we see there are NO liens on nor my husband or I. But we see a New York State section 13 lien law she is not listed anywhere else, not taxes or deed ~ once she accepted the check wasn't that final payment ? Neither she or her lawyer has responded to us or our attorney in over a year my attorney is old now and not as reliable has he was ... Can we sell our home safely.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Once she released the lien in writing, then it is presumed that what was owed to her has been satisfied. If she is not listed on the property anymore as a lienholder or anything else, then then title is (presumably) clear.

Technically, she can still try to file a suit for the money owed. However, this would be a very weak case, since she has already released the lien and stated that everything was paid. She would likely have trouble even finding an attorney to take such a case. So while this is always a possibility which can impact the title of the property, it is highly unlikely based on the facts provided that it would become an issue.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 1 year ago.
I'm sorry maybe wasn't clear she accepted the funds and cashed the check ~but we have nothing other than that .... Her attorney informed my attorney over a yr ago and only once, of these other funds wanted. This was during the time she took payment which we thought was in full. No one has not responded to any of our lawyers calls or letters. She is nowhere on the deed and there are no liens filed on us as of todsy, so are we clear to sell the house... what is this NY state section 13 law in regard to us.
Expert:  Ely replied 1 year ago.

Ah, I see. Thank you for your clarification. Do you mind if I ask two things, then?

1) She does not have a lien listed on the property, but she never did, and simply collected the money. Correct?

2) Is she correct about the $3,000 owed? Or not sure?

Customer: replied 1 year ago.
There is no nor ever was that we can see a lien on the property, she only took payments monthly. Most by direct deposit through Bank of America between accounts. When we bought the house she had collected a months rent $400 from the lower tenant which should have come to us and there was an outstanding water bill of over $500 that wasn't caught at closing but I did send her a copy She claimed her sister should have paid it, told us to deduct both the rent and water bill and we did and sent a short payment which covered the difference. That was during the 1st or 2 months of ownership over 4 yrs ago now ... We never heard of any $ being owed until the payoff time, and then they added $1250 for collection fee for her lawyer, and interest for the month of Oct. and said there were 2 missed payments of totaling $1200 Which would be the tenants rent and the water bill She told us to wait until she got back to NY from FL and I have that message saved on my phone...
Expert:  Ely replied 1 year ago.

Thank you.

This becomes a race notice issue. See HERE and HERE.

NY is a race notice state. This means that one who pays fair value, does not have notice of any other earlier conflicting interests, and records first, wins and will have priority over any later recordings.

As such, technically, since she never recorded it, one can sell it and the buyer would record it and be in superior possession.

However - and this is me being thorough - she may attempt (however unlikely) to try to attach interest to the property claiming that $3,000 was owned and that the buyer knew of this fact (how she'd prove this, I do not know). If she does this, she is likely to fail (because NY is a race notice state), but the buyer can possibly sue you for fraud or seek indemnification in fighting her claim. Chances of this happening are VERY SLIM, but I am being thorough here and am simply wanting to be sure you get every angle of this situation.

If someone in your situation wants 100% guarantee that she won't complicate matters, then I would pay the claimed $3,000 be it a real claim or not, and then get her to sign a QUITCLAIM DEED to you, formally giving away any possible interest in writing.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
We offered to come to a agreement of some sort just to put this to bed last year, her attorney never responded after 3 attempts... This is why we started doing our own searching. My husband went downtown today and the only thing is this NY state section 13. No liens or judgments on either of us...I am my wife's husband who is stepping in, I went to Erie County Clerk earlier today and there are no liens on either of us relating to this property. The deed was filed in 2011 and had language Deed-warranty with lien covenant.Witnesseth, that the part of the first part, in consideration of One and More Dollars ($1.00 & more) lawful money of the US, paid by the parties of the second part, does hereby grant and release unto parties of the second part, their heirs, successors and assigns forever. see attached filesSince the deed indicates it has a lien covenant, but no liens are filed are we free and clear to sell house? What recourse will she have if we do sell house and failed to respond to our resolution requests. Our concern is that she may be a bit sneaky due to the fact the homes in this area have appreciated quite a bit, we got a great deal and have invested 60K in improvements.
Expert:  Ely replied 1 year ago.
I am guessing her name is ***** *****
My answer stands as is, since the facts have not changed:
As such, technically, since she never recorded it, one can sell it and the buyer would record it and be in superior possession.
However - and this is me being thorough - she may attempt (however unlikely) to try to attach interest to the property claiming that $3,000 was owned and that the buyer knew of this fact (how she'd prove this, I do not know). If she does this, she is likely to fail (because NY is a race notice state), but the buyer can possibly sue you for fraud or seek indemnification in fighting her claim. Chances of this happening are VERY SLIM, but I am being thorough here and am simply wanting to be sure you get every angle of this situation.
If someone in your situation wants 100% guarantee that she won't complicate matters, then I would pay the claimed $3,000 be it a real claim or not, and then get her to sign a QUITCLAIM DEED to you, formally giving away any possible interest in writing.

If her attorney is not responding, then it may be prudent to send them a certified letter threatening that the sale will go through regardless unless they respond and settle the matter.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
I am attaching the cover sheet of the deed recording. Where would definitive proof lie that she was no longer on the title and/or deed? We were not going to offer any notice of the sale, since we feel we met our obligations under the original agreement. We have sent certified and regular mail letters through our closing attorney who has not received any responses from Carol's attorney. I sense it is such a small issue and its not a priority to them. Her attorney originally tried to compound what was agreed upon verbally with Carol by adding a variety of fees, interest etc.... It has been a year since we last heard from their side. I hate to just pay the monies we think she is owed and have them respond they want more in line with what they want.Is a quitclaim deed needed in the first place or a lien release? I am attaching the title information which should help.
Expert:  Ely replied 1 year ago.

Both things that you have provided seem to show that Carol gave her interest to you.

Technically, she really has very little chance. I mean like 1%. If that even. However, if one wants to be 100% careful, then one would want her to quitclaim.

A quitclaim is not necessary. All a quitclaim would do here would have her confirm that she is giving up all possible interests. However, it is recommended if one feels that she may try to take action. (Again even if she does, she is unlikely to be successful).

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.