I am executor for my Father's estate.
Upon telling mortgage co. house was vacant (but still being monitored & utilities paid for) they took over house 8 days later & changed locks. Gave me access back but still dont feel right about it. Now Dad's house is set to foreclose in just under a month. He technically owns 2 parcels, but foreclosing on one I believe. Not sure if they can take over both if no lein...
I have been in contact with Mortgage company the whole time & have been trying to work out a 'deed-in-leiu'. However their attorney's office is still sending me letters saying they are foreclosing and have given me a date. Like I mentioned previously~ I'm not sure if they can take the 2nd parcel as 'collateral' but if not, I need to figure out how to put up a defined property line as well so who ever buys house doesnt think 2nd lot comes with it for free! Aside from causing damage to the home upon "securing" their property, they have recently called electric company to cancel service when I had been current on paying all utilities and property taxes! I appreciate any help/feedback!
It is VERY IMPORTANT to review the actual mortgage that was signed at the time the loan was taken. It will tell you FOR SURE if there is one lot or two that has a lien on it. I could help you determine that. If you were trying to give the bank a deed in lieu of foreclosure, you may also want an attorney involved to make sure the deed cancels ALL the debt.
You need a probate/real estate lawyer to help you take care of all facets of this problem. Questions include what is in your father's estate and how to dispose of what there is. Then there is the real estate issue. The mortgage company cannot foreclose of property that is not part of the mortgage and mortgage note. See a lawyer who can help you get the answers you need so you can do the appropriate things.
I am licensed to practice law in Michigan and Virginia and regularly handle cases of this sort. You should not rely on this answer. You should consult a lawyer so you can tell the lawyer the entire situation and get legal advice that is precisely tailored to your case.
I agree with my colleagues. I would simply add that, if the second lot is part of the probate estate, which it appears to be, then there is a chance that the lender can make a claim against it. They cannot foreclose on it, because it is not part of their security. You should hire an attorney to review the entire situation. There may be exemptions and allowances that will shelter some of the estate assets.
It sounds like when you notified them that the house was vacant, they thought you were telling them that the property was abandoned, so they acted to preserve their security.
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Elder Law Attorney
It sounds like the mortgage holder has made some missteps and infringed on the rights of the estate. I agree with my colleagues regarding the approaches suggested. In particular, I second Attorney Frederick's comments about the potential to protect the other estate assets. If a secured creditor such as the mortgage holder does not properly perfect their claim, they can be limited to getting the secured property back even though the balance on the mortgage may be more than the property is worth.
This is a common fact pattern faced in this day and age and a good probate attorney can earn their fee and pay dividends for the estate in this situation. If there is equity in the property, a good attorney can make sure the estate gets its fair share. Not having an attorney can put the PR in a spot where they could have personal liability. Get a lawyer if you don't have one.
This answer is intended to provide legal information, not legal advice. Legal advice should be provided by licensed attorney only after full disclosure of all facts. If you desire a no-obligation consultation to obtain legal advice, please contact me at 586-268-4463.