We sold a home in Florida over 30 years ago where the street address on the deed was correct but the lengthy legal description had a scrivener’s error. The owner is now being sued for foreclosure by Bank of AmerIce. The bank has included us as defendants in the portion of the lawsuit related to deed reformation. The bank’s attorneys have not responded to our request to be removed from the lawsuit. Can we file a corrective deed? We don’t feel like we should have to hire an attorney for something we didn’t catch, nor did BOA when they issued the mortgage. Do we have recourse against the bank? We are concerned it may have a negative impact on our credit.
You can't be removed from the lawsuit because you have a very distant interest in the property/case due to the scrivener's error and the deed reformation. Frankly, there is nothing that you need to do. There's a good chance that the foreclosure will be successful or the case will be settled. If it ends with a foreclosure, the Court will probably correct the scrivener's error as well. As long as you are being sent any pleadings that are filed with the Court and nothing in those pleadings impacts you, I wouldn't worry.
Unfortunately, it is not a good idea to ignore it. You are right that it could impact your credit. If you ignore it, your names will ultimately be included in a final judgment, without any clarification as to why you are included. That will then become an item of public record. "Public record" items are often picked up by credit bureaus without any understanding that you are not included as debtors, and so can well impact your credit.
The error was probably made by the closing agent, and if so, "the bank" would have relied on the closing agent for provision of the correct legal description. If you know who that was, it it was their mistake, and assuming that company still exists, it may be that it would pay for representation for you to get this sorted out. However, if the error was made when the property was deeded to you, that is a different matter.
While potential solutions are not horribly complicated, they do require your retaining counsel to represent your interest in the existing foreclosure case. PLEASE DO NOT ATTEMPT TO RECORD A CORRECTIVE DEED, that will not work and could make matters worse.
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.
Consult with and retain a good local real estate litigator in the County in which the property is located. He or she can expedite the reformation Count in the bank's FC Complaint, perhaps even have the action severed, and have the judge make clear in the Final Judgment of FC (assuming there is one) that your naming and appearance was not as defendant in the foreclosure count, but as a third party for a necessary reformation. You can also add an explanation to your credit report to explain why you were named.
And you can (potentially) sue whomever it was that you paid to prepare the flawed deed (assuming after 30 years they are still around). Your lawyer can determine who that is rather quickly, and if appropriate, send a demand letter.
Hope this helps.
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