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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: death intestate when NOD filed a few months ago Posted by Kristine-CA on April 14, 2009 at 5:01 PM In Reply to: Re: death intestate when NOD filed a few months ago posted by Melody on April 14, 2009 at 9:51 AM Melody: Rick has given you info per the probate side of things, but I want to take a different angle. First of all, things are not a mess at all (at least regarding this property) if your cousin died but had already deeded away the property to his Brother. This is good news IMO. If there is enough equity in the property the Brother should consider selling it asap. A loan mod is unlikely at this time, regardless of who applied for it. As long as the Brother is not named on the mortgage, he has nothing to worry about. He can sell the property, and the proceeds, if any, are his (because he is the owner). He can choose to do nothing and eventually the property will be sold at trustee's sale, with either the bank taking it back or going to a the highest bidding buyer. I'm concerned about the word "defendant" on what you are calling the Notice of Default. NODs don't have "defendants. Trustee's sale are non-judicial and there is no court case. If indeed that language is being used, I'm wondering if what you are looking at is really an NOD. And if it is, I want to see that doc! I'm wondering if lenders are tweaking the NOD document and adding more threatening language. I am also wondering about the equity, and if there really is any. Could the property be sold today for more than the loan balance and closing costs? Are there other recorded debts for either your deceased cousin or the Brother? I'm not an attorney and this is not legal advice. But I do hate to see people let something go because they don't understand what happens when someone dies. In this case, if the deed to the cousin was properly executed, the Brother is the owner and he may want to consider selling the property or bringing the loan current. Please feel free to post more here or write me off the board. Sincerely, Kristine : : Not sure I understand the facts. Cousin owned property, took out a mortgage then QC Deeded to his younger brother, then died. Along the way, the lender filed NOD last fall. I'm surprised it hasn't already gone to trustee sale. : : We see a lot of properties in foreclosure for which the owners are deceased and for which no probate has yet to be opened. : : You say that your deceased cousin was names as defendant; perhaps you mean that his name was on the Notice of Default as the Borrower (trustor)? : : As for Aunt and Uncle's responsibility, they have no financial responsibility if they did not sign for the mortgage. Also,they have no real obligation to probate cousin's estate. They may feel some since of obligation, however they don't have to do anything if they chose not to. They can even let the property go to sale and wash their hands of the whole matter, if they so choose. : : Then there's the matter of the QC deed, whether it's valid, what the younger Brother expects and so forth. There may not be anything in decedent's estate to fight over, either. : : On the other hand, if cousin's property has a substantial amount of equity, it might be worth the trouble. This really depends on whether he left other unsecured creditors like credit cards, etc. that would eat up much of the cash surplus if the estate were to be probated and the property salvaged and sold. It's hard to tell without knowing the other facts. The simple solution would appear to be to deal with the younger Brother and avoid the whole probate matter. : : : The best place to start is to determine if he has a property and equity worth saving, then determine Aunt and Uncle's wishes, and if they have the resources to resolve the problem. : You say the simple solution would be to deal with the younger brother and avoid probate all together. But my main concern is for the younger brother. If the property was QC Deeded to him, will he now be responsible for the mortgage and thus the foreclosure? He's just starting out, getting his first job, etc. We don't want his credit to be ruined with a foreclosure. We estimate that the house has about $100K in equity. : And yes, under the party info on the NOD where the trustee is listed, it lists the deceased as the 'defendant' which I am assuming is the trustor position. : I am surprised it hasn't been sold yet either but I think that the deceased cousin was working on a loan modification and thus the sale was postponed. We're still sorting thru papers. Everything is a mess. : Thank you for your time. Follow Ups: No worries Rick, the Probate Guy 5:22 PM, 04/14/09 (0) Post a Followup: Name : E-Mail : Subject : Comments: : Melody: Rick has given you info per the probate side of things, but I want to take a different angle. : First of all, things are not a mess at all (at least regarding this property) if your cousin died but had already deeded away the property to his Brother. This is good news IMO. If there is enough equity in the property the Brother should consider selling it asap. A loan mod is unlikely at this time, regardless of who applied for it. As long as the Brother is not named on the mortgage, he has nothing to worry about. He can sell the property, and the proceeds, if any, are his (because he is the owner). He can choose to do nothing and eventually the property will be sold at trustee's sale, with either the bank taking it back or going to a the highest bidding buyer. : I'm concerned about the word "defendant" on what you are calling the Notice of Default. NODs don't have "defendants. Trustee's sale are non-judicial and there is no court case. If indeed that language is being used, I'm wondering if what you are looking at is really an NOD. And if it is, I want to see that doc! I'm wondering if lenders are tweaking the NOD document and adding more threatening language. : I am also wondering about the equity, and if there really is any. Could the property be sold today for more than the loan balance and closing costs? Are there other recorded debts for either your deceased cousin or the Brother? : I'm not an attorney and this is not legal advice. But I do hate to see people let something go because they don't understand what happens when someone dies. In this case, if the deed to the cousin was properly executed, the Brother is the owner and he may want to consider selling the property or bringing the loan current. Please feel free to post more here or write me off the board. Sincerely, Kristine : : : : Not sure I understand the facts. Cousin owned property, took out a mortgage then QC Deeded to his younger brother, then died. Along the way, the lender filed NOD last fall. I'm surprised it hasn't already gone to trustee sale. : : : We see a lot of properties in foreclosure for which the owners are deceased and for which no probate has yet to be opened. : : : You say that your deceased cousin was names as defendant; perhaps you mean that his name was on the Notice of Default as the Borrower (trustor)? : : : As for Aunt and Uncle's responsibility, they have no financial responsibility if they did not sign for the mortgage. Also,they have no real obligation to probate cousin's estate. They may feel some since of obligation, however they don't have to do anything if they chose not to. They can even let the property go to sale and wash their hands of the whole matter, if they so choose. : : : Then there's the matter of the QC deed, whether it's valid, what the younger Brother expects and so forth. There may not be anything in decedent's estate to fight over, either. : : : On the other hand, if cousin's property has a substantial amount of equity, it might be worth the trouble. This really depends on whether he left other unsecured creditors like credit cards, etc. that would eat up much of the cash surplus if the estate were to be probated and the property salvaged and sold. It's hard to tell without knowing the other facts. The simple solution would appear to be to deal with the younger Brother and avoid the whole probate matter. : : : : : The best place to start is to determine if he has a property and equity worth saving, then determine Aunt and Uncle's wishes, and if they have the resources to resolve the problem. : : You say the simple solution would be to deal with the younger brother and avoid probate all together. But my main concern is for the younger brother. If the property was QC Deeded to him, will he now be responsible for the mortgage and thus the foreclosure? He's just starting out, getting his first job, etc. We don't want his credit to be ruined with a foreclosure. We estimate that the house has about $100K in equity. : : And yes, under the party info on the NOD where the trustee is listed, it lists the deceased as the 'defendant' which I am assuming is the trustor position. : : I am surprised it hasn't been sold yet either but I think that the deceased cousin was working on a loan modification and thus the sale was postponed. We're still sorting thru papers. Everything is a mess. : : Thank you for your time. [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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