Skip to main content
Shawn Michael Yesner

Shawn Yesner’s Answers

232 total


  • Our deed is in the name "Son, a married man, and H and W, husband and wife. H died, does his interest pass to W, his wife ?

    We could not get a mortgage but my son could, so he is on the deed. I would like to put title in son's name and do not want to probate my husbands estate as he has no assets other than his interest in our house.

    Shawn’s Answer

    Under the facts as you describe, yes the interests of H pass to W. The property is owned by 2 "entities," (1) son and (2) H & W as a married couple. When H passes, his title passes to W so now son and W own the property.

    Therefore it sounds like W could convey to son to refi the property. Make sure you consult with a knowledgeable real estate attorney in your area who can review the documents and confirm the documents can be created as you desire.

    See question 
  • Should I file Chapter 7 or chapter 13 bankruptcy?

    My home is in foreclosure and I'm upside down on my mortgage. I have approximately 8,000 dollars in credit card debt. I owe you $6700 on a recent repossession. I am low income. I make 1700 dollars per month that's about the same as the mortgage pa...

    Shawn’s Answer

    I think the answer depends on whether you want to try to keep the home. Although it sounds like the house is unaffordable based on your budget, a loan modification might help you. Therefore if you can modify the loan to an affordable payment then a Chap 7 would eliminate everything else. If you can't modify but can afford to catch up payments over time then a Chap 13 is appropriate (although again it sounds like the house may be unaffordable). If you want to give up the house then file a Chap 7. Of course all of this depends on other facts that you have not listed so before deciding on what to do, consult with a knowledgeable bankruptcy attorney in your area to fully explore all of the facts and your options.

    See question 
  • We signed lease on home in March 2014. Served today with foreclosure papers in name of previous tenant.

    Do we need to notify court we are the current tenants? Do we need to respond within 20 days? Why wasn't this brought to our attention when we looked at home with realtor? We would not have moved in. What are our rights? We signed lease for a year.

    Shawn’s Answer

    There is a law called the Protecting Tenants in Foreclosure Act which will allow you to remain in the house through the term of the lease under certain conditions. However, you may also be able to cancel the lease based on the realtor or landlord withholding facts that would have been material to your decision to lease the house.

    You should not ignore the lawsuit, except that you have few, if any, defenses to a mortgage foreclosure action as the tenant.

    You should speak with a local attorney who understands both foreclosure and landlord/tenant law. Most will provide a free consultation.

    See question 
  • My husband passed away,my name is not on the reverse mortgage. I moved out and now being served with papers. What should I do?

    I moved out because the lender told me I had 2 options buy or vacant the house. So I left and now have been served with papers. Am I liable for anything concerning this mortgage? I only have 20 days to respond to the papers served. Do I need a a...

    Shawn’s Answer

    Most attorneys will give you a free consultation, therefore there is no obligation for you to get some information and answers.

    Most reverse mortgages are non-recourse, which means the lender cannot recover any deficiency from you. The reason you are named in the foreclosure case is likely because you have an interest in the property following your husband's passing.

    My best educated guess is that the bank cannot and will not seek any money from you and named you as a formality, but please check with a local attorney in your area who can review the documents and confirm whether I am correct (or incorrect).

    See question 
  • Is it possible to get a modification w/o the signature of my ex-girlfriend? Why should I have to do a bankruptcy?

    In 2008 my ex-girlfriend left and moved to PR, not once paid any monies for the mortgage. I was able to get a loan modification approved but she refused to sign. I am married now living in the house she abandoned and she still won't sign. I have s...

    Shawn’s Answer

    I assume from your question that your ex-girlfriend also signed the note and/or mortgage. Therefore, in order to modify the loan, all signors on the loan documents should sign. By comparison, if you were able to refinance the loan, the old loan would be gone and your ex would then be completely out of the picture.

    I don't see how a bankruptcy helps you, except that you can use a Chap 13 to catch up the mortgage. Or you can use Chap 7 or 13 to surrender the house. Otherwise, I don't think bankruptcy is the solution that forces the bank to modify the loan and, unfortunately, without the cooperation of your ex, you're stuck.

    I would normally suggest that you consult with an attorney in your area, but it sounds like you have already. Make sure the attorney you're interviewing is knowledgeable in mortgage foreclosures, loan modifications and bankruptcy so they can discuss the pros and cons of all three areas of law and the interplay of each.

    You could also talk to the bank directly and HUD provides free counseling. If none of those options work and you get nowhere with attorneys in the area, you may want to consider filing bankruptcy to eliminate the debt, let the house go, and then use your wife's credit to buy a new house.

    See question 
  • A settlement stipulation was entered into 3/96 with bank 1, that was acquired by bank 2, and then bank two, acquired by bank 3.

    Should I file a motion and declaration to vacate judgment? 2005 a lien was placed on my property. Just discovered it last week. I talked with bank 3 and they asked me to fax the title search and they will remove the lien. I had to fax the pw twice...

    Shawn’s Answer

    You should consult with a local real estate litigation attorney.

    Under FL Rules of Civil Procedure, you may be time-barred to reopen a case that is almost 20 years old to challenge a judgment. Instead, however, if you have all of the proof that the debt or judgment was paid, you can try to file a declaratory action or quiet title action to force Bank 3 to satisfy the lien.

    I am also a little confused as to your last statement - if the house is your primary residence, then a $5,000 credit card debt should not have attached, or can be easily removed by virtue of the homestead status of the house.

    Please contact a local real estate litigation attorney who can review all of the evidence and your options.

    See question 
  • I'm being sued as the remaining heir on a home that my mother failed to pay taxes and mortgage on since 2010 when she died.

    I was never involved, signed, co-signed any paperwork, formal documents, titles, mortgages. My mother left no will, estate, or tangible property of any value.

    Shawn’s Answer

    You should consult with a knowledgeable real estate, foreclosure and/or probate attorney.

    Likely you are being sued only in your capacity as an heir. Technically when someone passes, their property transfers to someone. The effect of a probate is to determine to whom the property transfers. Therefore, as an heir, you may be entitled to some ownership interest in that home and are being sued solely to have the judge order that the plaintiff's rights are superior to yours. It would be highly unlikely in this scenario that they are suing you for money.

    See question 
  • How do I obtain a copy of the tenant's lease agreement? I purchased property at foreclosure auction currently occupied.

    The property is currently occupied with tenants. I'm familiar with the Protecting Tenants at Foreclosure Act and that I'm required to abide by the terms of the lease that is currently in place if I am not going to claim the property as my primary ...

    Shawn’s Answer

    The first most obvious suggestion is to ask the tenants to provide a copy of the lease agreement. If they refuse, then you can hire an attorney, who can send the tenants a letter requesting a copy of the lease pursuant to the Protecting Tenants at Foreclosure Act. If they continue to refuse or ignore you, then wait the 90 days and file an eviction action. The paper trail created by: (1) your first request; (2) your written request; and (3) your attorney's request should help your argument in the event the situation devolves into an eviction. Make sure you work with an attorney in your area familiar with Landlord/Tenant Law, Foreclosure Law, and the Protecting Tenants at Foreclosure Act.

    See question 
  • Is bankruptcy immenent (Florida)

    I own a home that the city has stepped in and gave 30 days to make "major" repairs that I can't afford (huge cracks in the foundation, mold, roof, etc). I have a hearing today with the city that states I am threatened with levy fines (because I co...

    Shawn’s Answer

    • Selected as best answer

    Bankruptcy might eliminate any fines, fees or penalties that you owe up to the date of filing. The bankruptcy, however, cannot fix the condition of the house, nor can it relieve you of the obligation to make the major repairs. Therefore, fees, fines and penalties that are imposed after the Chap 7 is filed would still be personal obligations owed by you.

    Until you get rid of the house, you are responsible for its condition. A major misconception of bankruptcy in Florida is that "surrendering" the house in Chap 7 will cause the title to automatically transfer to the lender. This is false. You must sell the house, or the bank must take the house back (through foreclosure or deed in lieu) before you no longer own it.

    Please speak with a bankruptcy attorney in your area. My thought is that you would be better off to first get rid of the house - through foreclosure, short sale or deed in lieu - and then file bankruptcy to eliminate any remaining debt owed to the City or to the lender. There may be income tax consequences to this course of action, so please discuss and weigh your options appropriately.

    See question 
  • How can we force the 2nd to modify the loan to what we can afford after finding steady work making less money after being unempl

    2nd mrtg refuses to modify loans in Fl. We sought a bk attny who told us to stop making pmnts (we were current and struggling due to pay reduction). The 2nd mrtg is the only reason we were looking at BK. We find we have $21k in equity and a balanc...

    Shawn’s Answer

    It is hard to "monday morning quarterback" another attorney given we likely don't know all of the facts.

    However, before advising any client to stop making payments (which is always risky advice), it would have been wise to confirm the equity in the house versus the first and second mortgages.

    The problem is that if this analysis was done up front, all it would have confirmed is that bankruptcy would likely be a bad option - it would not have helped cure the high mortgage payments.

    If you are still in bankruptcy, there is an option within most FL Jurisdictions to request mediation in order to modify the mortgage. Although the Court can force the mediation, the Court cannot force the modification - however, the risk of your liability being eliminated through a bankruptcy may be enough to get the bank to negotiate.

    You could also consult with another attorney and get a second opinion. Speak to an attorney who has BOTH bankruptcy and foreclosure experience. It may be possible to find technical errors in the inception of the loan that will force the lender to negotiate.

    See question