My dad died 8 years ago and my parents' mortgage was in his name only, the deed however has both of their names on it. The mortgage was on a 15 year balloon which will be up in a few months, the mortgage company is saying they can take the home from her (Wells Fargo) the payments are up to date and have never been late in the last 8 years, is there anything she can do? There was a will leaving everything to her if he died first and vice versa if she died first. We have mailed and faxed a copy of the will to their assumable mortgage department and they are stating the will needs to be signed by a judge? I didn't think a judge needed to sign since its not in probate, that was the purpose of having a will?
The advice she received from the attorney who did the will and took care of things after he passed away was that she wouldn't need to notify the mortgage company that he passed away because they couldn't do anything as long as the payments were current. She does have a small second mortgage on the home from a different mortgage company and they have been aware he is deceased for several years and as long as they have been getting their monthly payment (they have) they didn't care if he was dead or not (his name is also the only one on that mortgage). Additional info the home/land is worth double what she owes on it (she owes around $40,000 with both mortgages) and the area is flooded with bank foreclosed homes for sale so they won't get what is owed much less what is it worth in a sale.
Federal law prevents them from acting to foreclose or accelerate this loan, as long as it is current. They can still force her to pay the balloon, however, so that is something she will need to be aware of. She should stand her ground, and if they persist, she may need to have a lawyer send them a strongly worded letter, reminding them of the law.
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Ethics / Professional Responsibility Lawyer
If the house was in joint names the Will did not need to be probated. Your Mom owns it free and clear. I am not an expert on mortgage finance, but I am well aware that banks make claims all the time that they can't legally pursue and the regulators let them get away with it. If a few of these folks were thrown in jail, they would be more careful. Your Mom's concern should be the balloon that is coming due. She should be looking into a refinance now. Wells Fargo is telegraphing that they won't be interested in offering another mortgage.
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It sounds fairly complex and a consultation with a probate/real estate attorney is certainly in order. I would be happy to discuss it with you.
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State, Local, and Municipal Law Attorney
There are lots of questions that need to be asked before any advise is given. Did your mom predecease your dad? Were the married at the time the mortgage was given. Was the will ever probated? Who are the heirs of the survivor? Were there any other names on the deed? Etc., etc., etc.. The mortgage is due at the end of the balloon period and there is always the question of whether the mortgage was valid in the first place. Call a lawyer with experience in these areas of the law.
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