Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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[?]
I hope this is still the place to come for sound advice. And, to that end I would, while all input is much appreciated, I am really at my wits end and would appreciate advice/input based on a solid foundation of law ~ not conjecture. 

Homeowner & spouse (both listed on the complaint), where Homeowner pro se, just recently had the Fraudsters SJ motion denied followed by an order to proceed to trial. [Judicial State].  

A couple of days later Homeowner passed away. Faudsters have already tried to get into the residence!  Homeowners Association mailed a certified letter demanding past due fees with threat to foreclose if not paid w/in 30 days!  I estimate a window of 20-30 days before fraudster files their motion requesting a trial date.

Every day I am monitoring the docket for any motions. Also, I was kept in the loop re: reviewing making suggestions re my friend's motions etc.  He has a strong case for a dismissal w/out prejudice.

1. Can this proceed without having to hire an attorney? If yes, then what would the necessary steps be?

If not then:

2. What steps at this stage can/should be taken, prior to the hiring of an attorney, to protect the homeowners interest: i.e. the preferred option is for the ‘friend’ rather than the spousal defendant to notify the Court, notify the Fraudsters counsel, etc.

If yes, would this be done by a motion to extend time – “A friend of the Court type motion” or ?????

Thanking you all in advance ….

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FlaProSe
The property may have to go through probate if the title is in the name of the deceased. The personal representative of the deceased needs to notify the court as soon as possible of the unfortunate event. Time is of the essence. A probate attorney should be hired.

[This is not a professional nor a legal advice]
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Texas
Agree, Probate
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Hank

Be very, very careful what you do and take care not to do anything until you understand precisely what the statutes and case law for your state says.

If there is already a personal representative (executor or administrator), then there may be a formal process that must be used to name and serve the successor to the decedent in order to obtain jurisdiction over the representative.  If the representative appears in court and files anything, this is probably an appearance which will give the court jurisdiction over the administrator, etc.

The same is true if there is no administration in respect of heirs.  If an heir files something, then that court will have jurisdiction over the heir.

Filing an administration or obtaining letters testamentary might also in some places be the very worst thing to do.  For example, in some states, if there is no administration, then the plaintiff might need to name and serve ALL THE HEIRS.  If you file an administration, then they will ONLY need to name and serve the administrator!

Similarly, if you rush to the plaintiff and TELL THE PLAINTIFF that the defendant has died, then they will begin working right away to move things forward by naming and serving the heirs.  By contrast, if you play your cards closer to your vest, then they will not know of the death and will not necessarily know the identity of the heirs.  Of course, a published obituary can give them a clear roadmap.

If they cannot find the heirs to serve them as substitute defendants, then the suit might not be able to proceed.

Still, it may be necessary for someone to file SOMETHING with the Court in order to put the Court and the plaintiff on notice of the death.  UNLESS there is a specific pending docket deadline, it might be better to file nothing.  PREPARE a notice -- a suggestion of death -- to be filed by someone OTHER THAN AN HEIR.  For example, if the decendent died with a wife and children these are likely to be heirs, etc.  By contrast, a brother, uncle, cousin, etc., is unlikely to be an heir unless there aren't other closer relatives.  Of course, someone can be a legatee without being a relative.

Suppose that John SMITH dies leaving a widow and four children.  Brother Joseph SMITH is not a legatee and hasn't been named as executor or administrator.  Joseph SMITH could wait until the eve of a hearing and then file a suggestion of death, attaching a copy of the death certificate, but otherwise not identifying himself as to relationship.  The suggestion of death will usually bring things to a halt.

The foreclosure mill law firm will then try to identify the heirs.  Let them find and serve all the heirs.  Then file the will or an application for probate.  When an administrator is appointed, they will then need to substitute in the adminsitrator and serve him or her.

Talk to an attorney!  Make sure it is a really capable probate attorney.  Get some good advice first.  But if you engage and pay the lawyer, then he is going to want to run in and file for probate right away because that will lock you in.  Once that attorney has filed for probate and entered an appearance for you, then you are going to be liable to pay the attorney.

It is very important to bear in mind that foreclosure laws and civil rules vary.  Probate law varies.  The same answer may not apply everywhere.

One advantage you now have is the foreclosure mills really do not know probate law.  So they are going to sit back and hope that you make a mistake by rushing in and filing things that will give them jurisdiction.   

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TU

Since [?] stated that the “Fraudersters have already tried to get into the residence [to secure it..right?], it would seem that this part of Hank’s well thought out post would fit the narrative that [?] as a friend of the deceased homeowner would be the best person to file the “Notice to the Court of Suggestion of Death”:

Quote:

“Still, it may be necessary for someone to file SOMETHING with the Court in order to put the Court and the plaintiff on notice of the death. UNLESS there is a specific pending docket deadline, it might be better to file nothing. PREPARE a notice -- a suggestion of death -- to be filed by someone OTHER THAN AN HEIR. For example, if the decendent died with a wife and children these are likely to be heirs, etc. By contrast, a brother, uncle, cousin, etc., is unlikely to be an heir unless there aren't other closer relatives. Of course, someone can be a legatee without being a relative.

Would others agree?

[This is not a professional nor legal advice]

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h
So much depends upon the specifics of law in your state.  But there are also fact based nuances that must be taken into account.

For example, if a couple owns real estate together as tenants by the entirety or if two persons, even unrelated, own property as joint tenants with a right of survivorship, then ownership of the remaining interest may vest immediately upon the death of the decedent without the necessity of any probate.  To the extent that the spouse or joint tenant is already joined in the action, then no further service may be needed.

Contrast the case where a single owner dies either leaving a Will or intestate.  While title might also immediately vest in the heirs or legatees, this is usually subject to an administration.  And these heirs or legaties are not going to be parties. 

In most states, a judgment against a dead person is a nullity.  And if the title immediately vested in someone else, then the decedent had nothing to be foreclosed.  By contrast, the heirs or personal representative would typically take the property subject to existing liens.

Also, bear in mind that the Constitutional due process requirements usually require notice, but the specific requisites of such notice vary widely.  In some places, only notice by formal service will do, while other places may have a more relaxed view that actual notice of the present legal proceeding is enough.  In other words, in some places the heirs cannot be bound unless named and properly served.  In other places, heirs might be bound by a judicial decree if it can be shown that they have actual notice of the action.  Thus, filing anything of record or taking steps which conclusively show that the heirs know about the foreclosure can be problematic.

This may also be reflected in attempts to break in and seize the property.  The banks may employ agents to take extra-legal action to cause the heirs to appear and complain.  Then, they have a very nice "gotcha" because the ignorant heirs have complained to the police, etc., and created a record that they actually know about the foreclosure proceeding.

It is also noteworthy that in some states probate matters are vested in different courts than land related matters.  This is the exception rather than the rule, but probate would more typically take place in a surrogate court in NY (Angelo might explain) or in a statutory Probate Court or County Court in Texas (Texas can explain).

Where there is an administration, sometimes the statutory scheme requires that a purported creditor present a claim to an estate before filing suit.  In these places, it might be necessary for the creditor to completely dismiss a suit and start completely over with a new probate claim.  This can only be done after the appointment of an administrator.  The creditor might be entitled to sue in State Supreme Court (in NY) or District Court (in TX) if the matter was pursued against heirs, but if there was an administration might need to dismiss the suit against the heirs and bring the action against the personal representative in a different court.

If all this sounds complicated, it is.  You could spend tens of thousands of dollars in probate legal fees if you fail to take care to read the laws and cases yourself.  But the creditor could also spend an enormous sum and they have little understanding and experience litigating these cases in most states, so they will try to bluff you into making serious mistakes!

You need to know and understand the statutes, the court rules and the cases on both.  Then you need to be prepared for a very long game of chess!
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[?]

 

 

So much depends upon the specifics of law in your state. But there are also fact based nuances that must be taken into account.

For example
, if a couple owns real estate together as tenants by the entirety or if two persons, even unrelated, own property as joint tenants with a right of survivorship, then ownership of the remaining interest may vest immediately upon the death of the decedent without the necessity of any probate. To the extent that the spouse or joint tenant is already joined in the action, then no further service may be needed.
**
>>>

It is also noteworthy that in some states probate matters are vested in different courts than land related matters. This is the exception rather than the rule, but probate would more typically take place in a surrogate court in NY (Angelo might explain) or in a statutory Probate Court or County Court in Texas (Texas can explain).
**
Where there is an administration, sometimes the statutory scheme requires that a purported creditor present a claim to an estate before filing suit. In these places, it might be necessary for the creditor to completely dismiss a suit and start completely over with a new probate claim. This can only be done after the appointment of an administrator. The creditor might be entitled to sue in State Supreme Court (in NY) or District Court (in TX) if the matter was pursued against heirs, but if there was an administration might need to dismiss the suit against the heirs and bring the action against the personal representative in a different court.
**
If all this sounds complicated, it is. You could spend tens of thousands of dollars in probate legal fees if you fail to take care to read the laws and cases yourself. But the creditor could also spend an enormous sum and they have little understanding and experience litigating these cases in most states,
so they will try to bluff you into making serious mistakes!

You need to know and understand the statutes, the court rules and the cases on both. Then you need to be prepared for a very long game of chess!

 

 

 

 

 

 

>both husband [deceased] and spouse owned the property.  Also, in the State of Florida, property automatically transfers to surviving spouse w/out need for Probate.

 

 

>surviving spouse is listed as a ‘defendant’ in the foreclosure action, thus “no further service may be needed” [correct???]

 

 

>based on the above facts, property automatically goes to surviving spouse & surviving spouse ‘notified’ as she is listed as a co-defendant in the foreclosure case, ??probate would or would not have any effect on the foreclosure proceeding.??????

 

>please reference above ??

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

>parents of deceased spouse are willing to help out ~ but my objective is to prevent them from spend [ing]tens of thousands of dollars in probate legal fees..”

 

>would it be possible for you to elaborate a bit more with some examples?

 

>agreed. I have research rules in fl relating to the filing of “Notice to the Court of Suggestion of Death” and from 2012 article in the Florida Bar Journal the following in part: The rule contemplates that upon the death of one of the litigants, the death should be “suggested upon record by service of a statement of the fact of the death.” Although the rule does not specify who should file the suggestion of death,…” and in part..”The failure to file a suggestion of death may estop the decedent’s estate from,..”

 

Thus, as a friend of the deceased and his spouse I can file the “Notice to the Court of Suggestion of Death” … I am not seeking legal advice just an opinion.

**

 

Once again I would like to express my deepest appreciation for your time and thoughtfulness of your responses!

 

 

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Jacob
I think that Henry and h have covered most of the ground here and it seems to me that the answers to almost all  of your questions are obvious.

Where there is a single owner of a property subject to mortgage and the owner dies, the land usually vests in either the statutory heirs at law or in the legatees of a will, but subject to an administration.  Where a decedent has other debts, the land could be subject to sale to pay such other debts.

Where there are multiple owners, usually a foreclosure could still proceed against the other living owners, while the ownership interest of the decedent could be tied up in probate.

There are several distinct forms of common ownership of land, including tenants by the entirety, tenants in common, joint tenants and joint tenants with a right of survivorship.

When ownership transfers outside of probate and without being subject to other claims of creditors, then the fact of death is almost totally irrelevant.

Suppose that Mr. and Mrs. A own a parcel together as husband and wife (tenants by the entirety) but only Mr. A signs the mortgage.  In such an instance, at Mr. A's death, Mrs. A owns the entire parcel.  In some places, if the mortgage by Mr. A was a purchase money mortgage, the lender might still have a claim on A's interest.  But where Mr. A added the mortgage later on his own, without Mrs. A's participation, usually the lender has no remaining lein at all.  Mr. A could only mortgage the interest which he had, which was his interest subject to the right of survivorship.  When Mrs. A outlived him, she owns the entire property in fee.  To the extent that the lender took the mortgage from Mr. A subject to this ownership interest without Mrs. A's consent, they have nothing to foreclose.

By contrast, when Mr. and Mrs. A both signed the note and mortgage, each is fully responsible for the repayment of the note and each has consented to the mortgage of his and her entire interest, including usually after acquired interest.

When Mr. A dies, Mrs. A now owns the parcel in fee, but subject to the mortgage.  Usually, the lender could simply bring the foreclosure against Mrs. A.

Thus, in such a case, filing a suggestion of death is only a clue to the plaintiff to dismiss Mr. A from the suit and, perhaps, to add some count to include a judicial declaration that all interest in the parcel has been vested in Mrs. A.

The precise mechanics may vary somewhat from state to state.  In some places, the death might create just enough confusion or murkiness to obtain some small delay.  Of course, the lender wants to obtain a good and marketable title through the foreclosure, so if there is any sense that the process might be flawed, they may slow down to dot the "i"s and cross the "t"s.

What Henry and h seem to have described might apply in other circumstances, but probably not under the facts you describe.

By contrast, suppose that Mr. and Mrs. A were killed together in a single auto accident or suppose that Mr. A dies and Mrs. A dies of grief at Mr. A's funeral.  Under these circumstances, the strategies suggested by Henry and h might be quite robust. 

One thing I would agree with in any case is that it is generally better to tell the plaintiff as little as possible about the circumstances until the very last minute.  At the larger foreclosure mills in places with a high volume of foreclosures (e.g. Florida), the expereinced attorneys are likely to know and understand the basic dynamics of foreclosure when a defendant has died.  This is also especially true where there are many elderly folks with underwater mortgages subject to foreclosure.

But a newer attorney for one of these mills or an attorney for a firm which hasn't handled a lot of these cases may need to check the law before proceeding.  If you tell them of the death immediately, they ask around, check and then just roll right over you.  By contrast, if Mrs. A were to file an opposition to the motion for summary judgment and then to show up the morning of the hearing and also then file a suggestion of death for Mr. A, it might very well result in the matter being continued.

This seems to me to most likely buy only days or weeks rather than months, though.  In other  circumstances as Henry suggests, the confusion might very well draw out a matter for years.
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Cabinetmaniac
In Florida there is a right to a life estate for the surviving spouse living in a homestead property.

It is subject to any mortgage, but if she can pay the maintenance, taxes, insurance and mortgage interest then she can maintain the life estate.

http://www.flsenate.gov/Laws/Constitution#A10S04

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.401.html

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[?]
Please elaborate "...expereinced attorneys are likely to know and understand the basic dynamics of foreclosure when a defendant has died."


Thanks! 
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