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In foreclosure, final judgement entered. I found that when refi'd Title was released not mortgage. Took to Judge but ignored! ??

Miami, FL |
Filed under: Real estate

The recorded Release of Mortgage actually refers to the Title Affadavit (Doc #, Book and Page) and NOT the first mortgage when purchased the home. Ameriquest who I refinanced with is the foreclosing lender. I believe that Option One Mortgage still owns this mortgage. A final judgement was entered and saw online that sale set for May 31. No letter sent in mail yet. Thinking of entering an Appeal. Do I have grounds based on this finding?

Attorney Answers 3

Posted

If I understand your question, when you refinanced the home, the release of the prior mortgage (where Option One was mortgagee) was not properly released. So your claim is that the foreclosing mortgage company (Ameriquest, mortgagee when you purchased the home) does not own the mortgage.

If the mortgage for Option One was not properly released it does not remove or destroy the mortgage with Ameriquest. It just means that Ameriquest falls in line behind Option One. Since Option One was fully satisfied at the refinance of the property (my assumption), then after the property is sold at the foreclosure auction, there will be nothing payable to Option One and the proceeds will go to Ameriquest. I don't think the problem you raise creates any type of actionable claim on your part.

You could think of it this way: You purchase the house with a mortgage of $120,000. There are no other mortgages on the house. During the real estate boom you take out a second mortgage of $100,000 so that you now have two mortgages totaling $220,000. You eventually pay off the first mortgage and have just the second mortgage outstanding at $100,000. First mortgage company never filed a release of mortgage. Second mortgage company forecloses and at foreclosure sale the house is sold for $100,000. Although first mortgage company has not filed a release of mortgage they have no claim against the proceeds because they were paid off and second mortgage company gets the full amount of $100,000.

No attorney-client relationship is created by answering questions in this public forum. If you wish to create an attorney-client relationship, you must contact me directly, not through this public forum.

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Contact Marjory Golant on Avvo.

Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship.

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Posted

This is not something you are likely to be able to sort out yourself. If there is a sale date set, unless something appropriate is done to vacate the judgment and cancel the sale, it will go forward, and the mess will become messier. Not sure what you mean by "took it to judge" - the only way to address this properly would be with the correct motion, and a HEARING.

You need to obtain assistance from a knowledgable foreclosure litigation attorney. The foreclosure industry has made such a mess out of the public record, and has filed so many incorrect foreclosure cases, that judges have no way of knowing what is right and what is not. You need, with the help of a knowledgable attorney, to sort out the facts, put them before the court, and have a hearing BEFORE May 31, or at least to get an order postponing the sale until such time as this can be straightened out.

Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.

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