Real Estate Law

Have Real Estate Law Questions? Ask a Real Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Real Estate Law
This answer was rated:

My husband and I owner financed a condo to a young lady and

her mother signed a guarantee...
My husband and I owner financed a condo to a young lady and her mother signed a guarantee. I collected mortgage payments (principal, interest and taxes) for almost 3 years as she qualified for the 1st time home buyers rebate.
I recently became aware that no POA, HOA or mandatory club dues have been paid since closing, (almost 3 years) My paperwork indicates that the buyer is responsible for mortgage and any assessments on the property. Owner moved out in November 2012 and is now leasing the property. The lawyer we are working with says in order to foreclose, it has to go to auction. WHY? We just want the property back. Buyers guarantor says the buyer is going to file bankruptcy to hold up the process. The HOA is willing to work with me and let me foreclose instead of them. What are my options??? If we hold the note...why does it have to go to auction? Is this a Texas thing?
Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 9 minutes by:
4/24/2013
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 12,567
Experience: JD, MBA
Verified
Hello and thank you for allowing me the opportunity to assist you.

Q: The lawyer we are working with says in order to foreclose, it has to go to auction. WHY?
A: You sold the condo to the buyer, and the condo became collateral for the debt. If the buyer defaults, then the recourse is to foreclose. As you stated, you financed the purchase ... that is what a bank does, and a bank's recourse is to foreclose. Your recourse is, I'm sorry to say, no different. But see below for an alternative approach.

Q: What are my options??? If we hold the note...why does it have to go to auction?
A: If the buyer wants to cooperate, then you could accept a deed in lieu of foreclosure. This would be beneficial to both of you. First, it would help you because you'd get the property back without the time and expense of auctioning the property. Second, it would help the buyer because she'd avoid a foreclosure on her record and a bankruptcy (assuming the possible foreclosure is the only reason she'd file for bankruptcy). She'd still remain personally liable for the HOA fees, but the HOA could still enforce the unpaid dues by foreclosing. Accordingly, there is a very good chance that you'd be stuck paying the HOA fees. If so, then you could sue the girl.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated.

Thank you for using our service!
Ask Your Own Real Estate Law Question
Customer reply replied 4 years ago


We offered to pay all the past fees if she would just give us the deed in lieu of foreclosure and had our lawyer write it up accordingly. She also asked if we qwould do this on June 1st as this would release buyer from having to refund her tax rebate to the government. We agreed and wrote it up. All we asked was that the unit be returned with all like and kind apliances and left in good condition. She did not respond until today and said she was selling the refrigerator, washer and dryer and stove because she bought new ones. The contract shows ALL appliances turned over with the unit. She siad she was going forward with bankruptcy because she didn't believe that we would pay the past dues even though our lawyer wrote it up that way. We have instructed our lawyer to go ahead with foreclosure proceedings but do NOT understand why it has to go to auction and we have to bid on oiur own property. At this point we intend to sue for ALL damages, material, legal and otherwise and if we don't collect from the buyer herselfbecause of bankruptcy, can we go after the guarantor for ALL of this?

Hi again.

Q: We have instructed our lawyer to go ahead with foreclosure proceedings but do NOT understand why it has to go to auction and we have to bid on oiur own property.
A: It sounds like you have a misconception, and that may be why you don't understand. You asked "why ... we have to bid on oiur own property"? That question assumes something which is incorrect: The property is not your property. You sold it. The girl owns the property. You merely have a security interest. In order to enforce a security agreement, a secured creditor must foreclose. Does that help to clarify?

Q: At this point we intend to sue for ALL damages, material, legal and otherwise and if we don't collect from the buyer herselfbecause of bankruptcy, can we go after the guarantor for ALL of this?
A: If the girl files for bankruptcy, then I'm sorry to say that you would be prohibited from going after her for anything. It is unlawful to sue a person who has an open bankruptcy case. Moreover, it is unlawful to sue a person for a discharged debt. But, you could certainly go after the guarantor for everything.
Ask Your Own Real Estate Law Question
Customer reply replied 4 years ago

Are you saying if she files bankruptcy she gets to keep the condo?

Certainly, if she is not living in it, which she is not and has not since November 2012, (they are leasing it) we should be able to get it back?

 

How and when can we expect to get it back. I now understand the foreclosure, but does bankruptcy override and what happens with the foreclosure proceedings? I am very confused....We just want our property back...period. Stil lneed to understand our options. Help!

 

Are you still there? 10:11 EST

Hi again.

No, she would not be able to keep the condo unless she pays you. The bankruptcy can discharge the debt that is owed to you, but it cannot eliminate the lien that you have on the condo. Accordingly, after the bankruptcy you would still be able to foreclose if she is not paying you. However, the bankruptcy does mean that you would not be able to sue her personally for any of the debt.

If I were you, I would continue trying to work out a deed in lieu of foreclosure. I would have your attorney speak with her attorney and try to work out the details so that she is satisfied. That is certainly the easiest thing to do, Even if it means that you have to pay the associations fees. But if that kind of arrangement cannot be worked out, then you should proceed with foreclosure. If the bankruptcy is filed, then you will have to wait until the bankruptcy is closed in order to foreclose. Unless, your attorney files a motion to lift the automatic stay. If such a Motion is filed, and if the judge grants the motion, then you could proceed with the foreclosure even while the bankruptcy is still open.
Ask Your Own Real Estate Law Question
Customer reply replied 4 years ago

If we wait for the bankruptcy to close and then we proceed to foreclose are WE responsible of any of the fees incurred by her? Is there a lien on the property caused by her that we have to pay in order to get clear title? Which way do we proceed to get clear title on the property when we finally DO get it back.


 


We tried everything for deed in lieu of foreclosure, EVEN offered to pay the past due fees and they turned it down.

Hi again.

Unfortunately, there is no way to guarantee that you will have a clear title. The association's fees likely have priority over your lien on the property, and that means even after foreclosure, the association's lien will remain. Accordingly, in order to prevent a foreclosure by the association, you may have to pay those fees. But you should speak to the association to see what they intend to do. It's quite possible that they will not proceed against you because they may think that their recourse is against the current owner.
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 12,567
Experience: JD, MBA
Verified
TJ, Esq. and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now
Ask TJ, Esq. Your Own Question
TJ, Esq.
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 12,567
12,567 Satisfied Customers
Experience: JD, MBA

TJ, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

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

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

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.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, 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!!

ElaineAtlanta, 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.

TonyApopka, 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

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

11,126 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,785 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,559 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,925 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
My HOA is in Florida. We had roof damage from Irma. We got
My HOA is in Florida. We had roof damage from Irma. We got together and voted to get more information before moving ahead with selecting a contractor to fix the roof. The Head of the HOA, later, sent … read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
My HOA provided of Chart of Responsibilities, between HOA &;
Second opinion] My HOA provided of Chart of Responsibilities, between HOA &; Unit Owners.However, the are a few areas, such as Roof, the can be challenged if the roof causes inside (Wall Board, Painti… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
My HOA provided of Chart of Responsibilities, between HOA &
My HOA provided of Chart of Responsibilities, between HOA & Unit Owners. However, the are a few areas, such as Roof, the can be challenged if the roof causes inside (Wall Board, Painting damage) cause… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,785 satisfied customers
An HOA is putting a $2500 lien on an unimproved lot in Lake
An HOA is putting a $2500 lien on an unimproved lot in Lake County CA. My name as recorded is Dale Moore, Trustee. My ex wife is now trustee through a divorce settlement. The change was never recorded… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
My condo HOA said my former tenant damaged elevator around
My condo HOA said my former tenant damaged elevator around 04/20/2017, and asking me to pay for repairing bill, I asked for the repairing invoice for months without getting one; On 11/15/17 condo boar… read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,547 satisfied customers
Florida HOA. Are HOAs still able to enter properties because
Florida HOA. Are HOAs still able to enter properties because their covenants say so, or are they getting trespass warnings?. I was told they are not allowing associations to simply enter property to s… read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,547 satisfied customers
Can the HOA be sued for damages resulting in a rat
Can the HOA be sued for damages resulting in a rat infestation in a single unit that spread to adjoining units? … read more
Lori
Lori
Juris Doctor
312 satisfied customers
Can a HOA association be created and then immediately call
Can a HOA association be created and then immediately call itself inactive for 10 years because no dues or minutes have maintained or for any reason at all?… read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
Do HOAs have to have a Covenants Committee? If yes, do HOA
Do HOAs have to have a Covenants Committee? If yes, do HOA statutes dictate the composition of such a committee? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,403 satisfied customers
Homeowner (me) in dispute with HOA. A tree owned by the HOA
Homeowner (me) in dispute with HOA. A tree owned by the HOA has caused significant damage to my driveway. They acknowledge ownership, but have set a cap on reimbursement for driveway replacement of $5… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,164 satisfied customers
I just had a property damage loss in my condo. The HOA is on
I just had a property damage loss in my condo. The HOA is on the hook for the majority of the claim. My personal insurance co paid the deductible. Since I am not the insured, the HOA is, what leverage… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,403 satisfied customers
HOA association failed to maintain the roof in our
HOA association failed to maintain the roof in our California condo building properly resulting leaks. It took them 3 attemots over 2 weeks to stop the leakage. The HOA repaired and paid for the signi… read more
Damien Bosco
Damien Bosco
3,391 satisfied customers
I was told that for a Georgia HOA letter, the HOA letter
Hi -- I was told that for a Georgia HOA letter, the HOA letter cost was capped by a law. Something like $35 or something like that. But I know the cost for the letters that closing attorneys must orde… read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
18,393 satisfied customers
I have lived in a homeowners association in Florida. The HOA
I have lived in a homeowners association in Florida. The HOA has both long term or residential and short term sections clearly defined. I live in the short term section, we pay more than 3 times the r… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
If there is a first mortgage on a property, can the HOA
If there is a first mortgage on a property, can the HOA foreclose and take title to the property for non payment of dues? … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,871 satisfied customers
I am having a dispute with my HOA over termite damage. I
I am having a dispute with my HOA over termite damage. I have spoke to an attorney who will write a demand letter but I don't have enough money to pursue it further if the HOA doesn't comply. Would th… read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
1,003 satisfied customers
I am a homeowner of a condo in texas, can an hoa association
I am a homeowner of a condo in texas, can an hoa association stop the sale of unit over hoa dues owed, I have under contract now a cash sales fast close, they are trying to forclose, but I have a buye… read more
Ray
Ray
Lawyer
Doctoral Degree
7,559 satisfied customers
I live in HOA community. The landscaping company damaged my
I live in HOA community. The landscaping company damaged my accordion shutter. Who is responsible for the damages … read more
LegalKnowledge
LegalKnowledge
Juris Doctor
28,183 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x