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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Mom paid in full I live in, put in living trust future. She

Customer Question

Mom paid in full for home I live in, put in living trust for my future. She is 87, I am 66. She and stepdad have two properties in an LLC. We asked the lawyer if putting the house in my name would keep it safe from bank if she ends up having to foreclose on one of her other properties because of a balloon payment due this Sept. This home is not in their LLC, but he said it didn't matter - the bank would sell it out from under me. This was my retirement, plus I have a business here. I need to retire so I can help them with their failing health. This is state of Oregon. They do not have the money for the balloon payment. They are trying to sell the houses now but no luck so far. Help! Please dot not text my phone, email only. Thanks
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 7 months ago.

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

If you have already consulted with a local attorney it is likely that they have a much better ability to provide you with an idea of what is going on with the finances than I can provide here in a "general information" forum, but I can provide you with what I suspect is going on.

It is likely that your mother is personally liable for these mortgages on the homes in the LLCs (it is rare that banks lend money to small LLCs without also getting a personal guarantee from the members (owners)). So if the homes are foreclosed on, the lender is also able to pursue your mother for any "deficiency" between what the foreclosed property sells for at auction and what is actually owed (the loan balance). (This is called a "deficiency judgment").

If there is a Deficiency Judgment, your mother's other assets (such as the home that you live in, that is held in teh trust (a trust does not protect or shield assets it simply is another way of holding property), is going to be subject to judicial collection by her creditor (the bank).

So, if the property(ies) in her other LLC(s) is very deeply underwater (she owes a lot more than they are worth), and she has no way of paying this balance (between what they sell for at foreclosure and what is owed) the bank may end up pursuing this property that you are living in to enforce a deficiency judgment (this is not a quick process, but it is possible).

Your mother may try doing what is called a "short sale" - where she tries to get the bank to agree to accept a sale of the property for less than what is owed, and get the bank to agree to waive the balance of the loan, if she does try this, I recommend retaining a real estate agent that specializes in short sales as they can not only help market these properties, but also help negotiate with her lending banks to help make the short sale go through (they specialize at negotiating both sides of the transaction).

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