I have lived in California for the last 30 years. Father and mother lived in New York, 7/6/01 Dad purchased a home, VA non assumable mortgage and note. Dad passed away 3/30/02. Mom pursuant to will takes everything. On 9/12/02 Mom sets up irrevocable trust, myself and 2 sisters beneficiaries. Atty who drafted trust sent a letter to lender 11/02 advising that he intends to file and record a transfer of the mortgage and note to the trust which he does on 12/12/02. Lender never responds. Mom and sister reside in home until mom passes away 8/30/12. Sister continues to reside in home.12/12/13 Citimortage assigns INTEREST to US Bank National Association CWMBS ETC. as trustee. Default 06/14 Foreclosure action filed in NY Erie county court and served on me as an heir to trust 11/9/14. 5 days leftThe original lender was First Priority Savings who assigns its interest on the same day my father signs docs to Citi Mortgage for $1.00 in 2001. I have no documentation except a copy of the trust and the exhibits of the note and mortgage my father signed in 2001. the law firm will not agree to continue matter. However in the complaint the affidavit accompanying the Summons says that documents were lost, destroyed or missing and an affidavit by a bank employee of First Priority. The Note and Mortgage copies look like they were manipulated with white out and the type in some sections appear to be different. Handwriting expert is reviewing my fathers signature on the note because it appears as though it was traced over. Home in upstate NY is worth $132.000.00 and $41,000.00 is still owing. What about the lawyers obligation for recording a non-assumable Note and mortgage without advising my mother it's not assumable? Need help please....Michael -
The only way to give you adequate advice is to discuss the entire situation with you in detail. That being said, if the house is worth $132k and the debt is $41k, then there seems to be more than enough equity in the house to justify at least answering the complaint. Certainly it may be worthwhile trying to work out a sale of the house without foreclosure given that voluntary sales tend to bring in much better prices than do foreclosure auctions.
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You should definitely serve an Answer. Voluntarily defaulting is giving up and giving the house to the bank. Since it also appears you have equity, you need to keep your options open. Find a good attorney in your area who specializes in foreclosure defense to assist you in preparing the Answer and dealing with the bank. If you were served with the complaint, you only have 20 days to respond, so you should act quickly.
First and foremost, you should file an Answer. If you're short on time, then make a written request to opposing counsel to get an extension of at least twenty (20) days, and file a copy of that request with the Court so there's something in the record. Make sure you appear in court because by doing so, you will probably be able to keep the case in the Settlement Conference phase to try to resolve the situation. You should also hire an attorney who handles foreclosure defense, which you can find using the "Find a Lawyer" feature on Avvo, or in the alternative, meet with someone from one of the legal aid organizations that are usually present in the Erie County Supreme Court Foreclosure Defense Part when that court is in session.
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