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If I live in a house with my child for which the mortgage is…

If I live in...

If I live in a house with my child for which the mortgage is in my deceased father's name, can I sign a mortgage modification agreement sent in his name without assuming the loan? Also, how can I find out if the house is in foreclosure and what are my rights?

Lawyer's Assistant: Since laws vary from place to place, what state is this in? And has any paperwork been filed?

Ky

Lawyer's Assistant: Has anything been filed or reported?

Such as?

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Answered in 6 minutes by:
6/14/2017
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 42,116
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified

Hello and welcome! My name is ***** ***** I am a KY licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.

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can I sign a mortgage modification agreement sent in his name without assuming the loan?

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No, that would be forgery and mortgage fraud if it were discovered that you did this. And there is always more paperwork that would have to be signed in front of a notary, so it would be found out very quickly..

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Also, how can I find out if the house is in foreclosure and what are my rights?

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If you are paying the mortgage, then the lender wouldn't be foreclosing. However if you are not, then the lender would have to send notices to the house about the foreclosure action which has to go through Circuit Court.. But you can just call the local Circuit Court to see if any case has been filed in father's name.

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thanks

Barrister

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Customer reply replied 1 year ago
What I was referring to is legal information that I'be read which states that if you live in a house that was willed to you, you can make payments without assuming the loan and that any mortgage modification offered to the deceased has to be offered to you.

Ok, what you are referring to is the Garn St Germain Act which states basically that if someone inherits a house the bank is not allowed to call in the mortgage as long as the person who inherits it continues to make the payments on it.

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It doesn't put the loan in your name, it just gives you the right to continue to pay on it while it remains in father's name until you either pay it off or are able to refinance in your name.

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But a mortgage modification is offered to the borrower, not a subsequent person who continued on paying the existing mortgage.

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thanks

Barrister

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But as for a loan modification, you could be considered for it the same as father could have, but it would have to be in your name with everything signed by you..

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Customer reply replied 1 year ago
I would be effectively assuming the loan?
As far as foreclosure, no notice has been sent. The last correspondence received from the servicer was a regular statement. However, my aunt said she saw something posted from an attorney seeking whereabouts of my father and said my uncle went in clerks office then said it was about the mortgage. The mortgager is aware my father is deceased and that my brother is the executor, so that doesn't make since especially since the last correspondence received was a regular statement.

So, I would be effectively assuming the loan?
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Basically yes.

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If any foreclosure action had been filed, they have to send notice to the last known address of the borrower as well as post any notices on the property.. So if you haven't gotten anything, then it is unlikely a case has been filed yet.

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But call the court clerk and just ask them tomorrow..

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Customer reply replied 1 year ago
My uncle said the clerk at the courthouse told him it was foreclosure. My aunt said Court procedures have started because a judge appointed this attorney to take care of it. Jerry said clerk told him they would be putting locks on every door, of every building on the property. I didn't think they could do that right away.

Don't rely on what someone might have told your uncle... call the clerk yourself and get the information first hand.

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But if no one has been paying the mortgage, a lender will typically file a foreclosure lawsuit in around 6 months..

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And no, that is ridiculous..they can't put locks on doors and lock someone out... That is why I think someone is telling you a story to scare you as that is not how a foreclosure happens.

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There is a lawsuit with the sheriff serving a summons and copy of the suit on whoever is living at the property, months later there is a court hearing, and then there is a judgment of foreclosure. Then there is an order for a sale of the property signed off on and it is then posted on the property as well as served on the owner or occupant..

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So if none of that has happened, they are just trying to scare you into moving out so uncle can settle the estate without you living there.

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I would be very suspicious of all this false information you have been getting..

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Customer reply replied 1 year ago
I'm very upset by it. We had received a notice to foreclose, then a trial mortgage mod was offered, which we accepted by just sending the trial payments in for 3 months. They then offered a permanent mod in April, but of course that required a signature, so we weren't able to do that. What recourse might we have? Rather than foreclosure, could we just agree to let them take the house but give us an agreed on time to find another place to live and move everything out? We have tons of stuff not just in the house, but in storage in the garage and barn as well as farm equipment and tools.
Customer reply replied 1 year ago
Also, the loan servicer is Seterus who I've heard don't play by the rules. What recourse is there if they don't?

Ok, if the permanent mod wasn't finalized, then they would be able to pick back up the foreclosure action where they left off.

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But the bank has to foreclose on the property to gain legal possession back unless the executor was willing to sign a deed in lieu of foreclosure back to the lender to avoid the need to foreclosure. But even after they foreclosed, which could take months, they still have to formally evict you after that, which will take around a month after the foreclosure.

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However, in many foreclosures the bank will offer a "cash for keys" for the occupant to avoid having to evict them. You could file for bankruptcy as soon as you were served with an eviction summons and that would then delay any eviction for several months.. So they might just ask you to move out and agree to pay you some amount to do so rather than hiring an attorney to evict for a couple thousand, then you filed BK, and they are stuck for several months until they can get the automatic stay lifted to continue on with the eviction..

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Also, the loan servicer is Seterus who I've heard don't play by the rules. What recourse is there if they don't?

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The estate would have to pay an attorney for a forensic loan audit, which can cost ten thousand, to have them review all the loan docs and see if there were any problems and then sue the lender. But you personally couldn't do anything because it isn't your loan or property, they are both owned by the estate now..

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It was my pleasure to work with you and help with your question. If you ever need me in the future, you can post a new question with "For Barrister" in the caption and the JustAnswer employees will get it to me.

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If you feel I have answered all your questions, I would very much appreciate a 5 star rating by clicking on the rating scale on your screen as that is the only way I receive credit for my work.

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Thanks much

Barrister

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Customer reply replied 1 year ago
Also, before the trial modification, the mortgage servicer was Chase, then it was bought by Seterus. I can't remember if the intent to foreclose was sent by Chase or Seterus. Would that matter?
Customer reply replied 1 year ago
What I meant about them not following legal process, if for example they locked us out before allowed by law. Would we not have a recourse? What timeline are we looking at as far as what would be the soonest we have to have everything moved?
Customer reply replied 1 year ago
I might add we live in a small county, so court proceedings may not take as long as in a larger county with more cases.

If a new lender bought the loan, then they have to start over. But the servicer just takes the money, they don't necessarily own the loan.

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If they locked you out, you call the police who will put you back in possession and then you sue them for an illegal eviction.

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And smaller counties have fewer court dockets so it can actually take longer as he judges travel around..

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Customer reply replied 1 year ago
Also, if my brother the executor agreed to a deed in lieu of, would they allow a reasonable period to move? Would that be recommended over going through the foreclosure process? My brother felt it was best not to accept the house that was willed to us and go through probate because of the amount of debt. However, I'm still considering consulting with a real estate attorney to assess the market value before just letting the house go.

Also, if my brother the executor agreed to a deed in lieu of, would they allow a reasonable period to move? Would that be recommended over going through the foreclosure process?

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It doesn't matter...either they will offer cash for keys or they won't, the way they get the property back doesn't matter.

.

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Customer reply replied 1 year ago
What timeline are we looking at as far having to have everything moved, worst case scenario?

Absolutely no way to know because I have no idea where in the foreclosure process you are and if the lender is in a hurry to foreclose are are taking their time.

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Customer reply replied 1 year ago
Will my credit be hurt as far as living in the house with the loan not being in my name? Especially, as far as the eviction? I've lived here with my son since 4 years before my dad passed away.
Customer reply replied 1 year ago
Also, I'm wondering if it would be to late to get the mortgage modification they offered my dad extended to me and sell the house later down the road?

I am unable to assist further and I am going to have to opt out and open the question to other experts.

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Michael Bradley
Category: Real Estate Law
Satisfied Customers: 1,448
Experience: Owner at The Protection Group LLC
Verified

Your credit will not be hurt by living in the house because it was not in your name. Under no circumstances would you be tied to the negative rating since it is in foreclosure.
You are not going to be able to get the mortgage modification that they offered your father because at this point he has passed away and you are not on the mortgage. The only thing you would be able to do would be to obtain refinancing or financing to put it into your name.

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Customer reply replied 1 year ago
What I was referring to is legal information that I'be read which states that if you live in a house that was willed to you, you can make payments without assuming the loan and that any mortgage modification offered to the deceased has to be offered to you.

At some point, you are going to have to get the mortgage put into your name. The mortgage company is not going to allow to stay in the property and make payments in the name of someone who is deceased. It might make sense to stop trying to resurrect a modification that cannot be brought back because your father is passed away and either think about refinancing it or moving somewhere else.

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Customer reply replied 1 year ago
The mortgage mod was offered quite a while after my father passed away and the servicer has confirmed that I could continue living here while making payments with loan still in my father's name. They wouldn't discuss the modification or any other specifics about the loan with me because I'm not authorized on the loan. I have however read legal information that if heir was already living in a house and a mortgage mod is offered to the deceased, the same mortgage mod would have to be offered to the heir living in the home.

What you are stating is an absolutely different scenario. Yes, if the mortgage is current and up to date, a mortgage company would realistically not foreclose on someone even though the person has deceased. However, as I have said, at some point the deceased person's name needs to be removed from the deed and mortgage. From what you are telling me the mortgage is behind which is a completely different matter. I would suggest not listening to what everyone is telling you and only concern yourself with what you are hearing from a mortgage company representative and get everything in writing.

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In the 25+ years that I had been practicing, I know of no law or statute that states that if an heir is already living in the house and a mortgage modification is offered to the the deceased, that the mortgage company would be required to offer the same deal.
In fact, in my experience I have seen the opposite. Once the mortgage company finds out that the mortgage holder is no longer living, and the mortgage is behind, they initiate foreclosure.

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Customer reply replied 1 year ago
Well, I'm pretty sure a mortgage company feels no obligation to protect the best interests of those affected and will not necessarily inform of rights and protections such as The Garn St Germain Act.

You are correct. The mortgage company has zero interest in the best interest of those that are living on the property. All they care about is being paid. That is your property and my property and everyone else's property.

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Customer reply replied 1 year ago
what isn't making since to me is why they have, what what I saw online, actions filed not just against my dad, but my mother who has been deceased for over 30 years(this is not the original loan, but a refinance done over 20 years her death) and an action against unknown heirs(they know who the heirs are). Could that be some kind of tactic?

The Garn St Germain Act states basically that if someone inherits a house the bank is not allowed to call in the mortgage as long as the person who inherits it continues to make the payments on it. The Mortgage company does not know who is residing in the property 100%. They are not sending someone looking to see who is there. As such, that is why they file their actions against anyone they know including a generic all heirs

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You have to realize that these mortgage companies do not treat these matters on a case-by-case basis they use a law firm that files thousands of these actions. As such, they do not know or remember about specifics regarding your mother's previous passing away, specific names of heirs etc. that is why they just put in anyone that is listed on the property which would include both your parents and then a generic heirs statement so that it includes anyone who we could possibly be.

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Please rate my advice. I strive for five stars. While I do not do this for the ratings, my compensation for my time and advice is tied to the ratings. Thank you. If there's any more questions you may have please contact me.

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Customer reply replied 1 year ago
But a long ago deceased spouse, well established as deceased?

These large mortgage companies have thousands of accounts. When they send these to their law firms they have thousands of accounts. It is just a law firm factory that churns these out and do not look at the particulars of your case. While I know that sounds cold but that is what they do.

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Customer reply replied 1 year ago
Also, why are unknown heirs named as defendants? That concerns me as far my record, credit, etc being harmed. The mortgage is solely in my father's name and there has been no transfer of the deed or title. The only thing in anyone else's name is ***** ***** which is under my name.

As an unknown heir, as I have stated previously, it cannot affect your record or credit. There is nothing in that filing that ties to you. The only way you are involved is because you are residing in the property. Once again, these mortgage companies when it comes to a mortgage holder being deceased, to cover their own liability, list everyone who is attached to the property, both your parents, and anyone else who could be tied to your parents with regards ***** ***** estate, the heirs, that is you.

This happens all the time in mortgage filings when the person holding the mortgage is deceased. They always list any unknown heirs. It is their policy.

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Customer reply replied 1 year ago
I got the warning notice in the mail today. It states that if there is no response to the complaint, "then a judgment may be taken against you without further notice, and your right to appeal any decisions or judgments if the court may be lost." Should we file an answer or is it best not to? It also states that the court has the authority upon issuance of a rule to shorten the 30 day period for the action to proceed. Under what circumstances could the court issue such a rule?

I cannot tell you whether or not you should file an answer. What I can tell you is if you do not file an answer in the mortgage company will get judgment and will start the sheriff sale proceedings. You have personally very limited rights in this case because all you do is live there, you have no ownership interest. Only the estate of your father has an ownership interest.
As I have told you multiple times, what it comes down to is can you refinance the property in your own name and you can continue living there or you will have to vacate the house.

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Customer reply replied 1 year ago
What about the law that says mortgage mods extended to deceased must be extended to heirs who reside on property without having to refinance through own bank? I'll vacate if need be but need to to do so. My understanding is that a foreclosure usually takes at least 3 months. Your response sounds like they sell the property after the 30 day period for an answer to the warning notice.
Customer reply replied 1 year ago
Also, the civil action filed states that the plaintiff is not seeking judgment against estate, if any. No probate has been filed. It also says a title examination reveals that heirs or beneficiaries named as defendants may have or claim an interest in the Real Property by virtue of the laws of intestacy.
Customer reply replied 1 year ago
as I've asked before under what circumstances would the court shorten the 30 day period for the action to proceed upon issuance of a rule and what kind of rule would they issue?

I did not say that they are going to sell the property within 30 days. In fact a sheriff sale probably will not happen for three if not six months from now. The foreclosure and sheriff sale process is quite slow. While it is going on you can still reside at the property.
The civil action is not looking for a judgment against the estate. All they want is possession of the property. That is all any foreclosure is about, not the money but possession of the property.
The court will not shorten the 30 day period. The court will not shorten anything when it comes to a foreclosure. They will make sure that all of the time requirements have been met.
Again, you can stay in that property for a few months at least before you have to leave.

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Customer reply replied 1 year ago
I just wondered about them shortening the 30 day period because the filing said the court had authority to shorten it upon issuance of a rule. Wasn't sure what that meant. I wondered if an instance might be if they thought it had already been vacated?
Customer reply replied 1 year ago
Or can they expedite it if homeowner is deceased?
Customer reply replied 1 year ago
Also, at one point they were given a copy of Will which stated house and all other possessions were to sold and evenly split between my brother and myself. We never transferred the title and filed probate(without house estate is not large enough to require probate) because we weren't sure if house was worth amount of debt. We've pondered for months trying to find ways we can keep it. At any rate the concern with the mortgage company having will in light of this foreclosure case is could we come under fire that we have not probated and have not had sell?

Again, they are not going to shorten the 30 days. They are not going to expedited because it is vacated. That is not something that they do. The mortgage company is not going to care whether or not the will was ever probated. Again, all they care about is the property and taking possession of it. That is why when they filed the suit they included everyone including your both your parents and any heirs.

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Customer reply replied 1 year ago
But why would they say the court could shorten it?

they have the right to request it but they will not in your case

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Customer reply replied 1 year ago
I'm still iffy on the issue of my having to refinance the house to keep it. I've read several times that in a situation like mine the same permanent mortgage offered in my dad's name after I made the trial mortgage mod payments should have been offered to me under the same terms. Just couldn't even get them to talk to me about it. I'm still wondering if I could still arrange that if I could get authorized on the loan.

only if it is current on payments. It is not now so they are foreclosing. When the mortgage gets behind that changes everything. They will not talk to you since you are not on the mortgage. You can not get authorized on the loan since you would need authorization from the mortgage holder who is deceased.

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Customer reply replied 1 year ago
It was current when we completed the trial and permanent mortgage modification was offered. We weren't able to finalize the permanent modification because the mortgage servicer wouldn't talk to me. I've read about inheritance laws and protections that are supposed to protect against that situation that don't seem to be acknowledged. I need a specialist in inheritance law.
Attyadvisor
Attyadvisor, Attorney
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Satisfied Customers: 8,687
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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I am a different Attorney and it will be my pleasure to assist you. I am reviewing your discussion with the prior Attorney.

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You need to respond to the complaint regardless of the situation so there is no default judgment entered. Where are you located so I can provide a link for a local Attorney that provides FREE consultations?

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Customer reply replied 1 year ago
40031
Customer reply replied 1 year ago
Preferably one that deals with real estate, inheritance, and foreclosure.

"Preferably one that deals with real estate, inheritance, and foreclosure." That is what I will provide.

This is a link for Attorney's in the area that provide FREE consultations http://lawyers.findlaw.com/lawyer/firm/real-estate-law/oldham-county/kentucky

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If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating does not impact your right to a refund.

Thank you for using JA! We appreciate your business.

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Are you still online with me?

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Customer reply replied 1 year ago
thank you.

Would you be kind enough to rate my service so I will receive credit from the site for my work and my time? Do you see the rating scale at the top of the page on your end? A positive rating will not impact your ability to obtain a refund.

Attyadvisor
Attyadvisor, Attorney
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I currently hold a Real Estate License and Mortgage License
I currently hold a Real Estate License and Mortgage License in the state of Colorado. I am being told that I am a risk to hire from a local Real Estate Office because hold both. I do not double side a… read more
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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).

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