Decedent is Sole Mortgagor, Widower on Title but Not on Mortgage

[dalmatian]

My question involves a mortgage in the state of: Illinois

The short of it is: does the foreclosure process proceed differently, especially in terms of speediness of resolution, if the foreclosure is against an insolvent estate rather than a living person?

The very, very long of it:

My husband's prior wife died almost 3 years ago. When they had refinanced some years ago, they put the mortgage in her name only. He, however, is on the title to the property jointly with her. (In fact, I'm not sure if he filed to amend the title after her death.)

After her death, and apparently before running his credit report, he was told by the bank that he would be able to assume the mortgage. He told me he even has a letter from them stating such (though I have not seen the letter myself.) However, at some point they reneged on letting him assume the mortgage because his income is not sufficient for their standards. He is on a fixed income, and for the last several years I have been a full-time student and unemployed and therefore am of no help in assisting him in obtaining a mortgage right now.

We have been paying the mortgage on time until the July payment. The property is just about worth what the current mortgage amount is, however in this market we haven't been able to find a buyer. Because he is on the title and not the mortgage, our understanding is that he can sign the title back to the bank and walk away from this house with no further legal obligation and no damage to his credit worthiness. After much discussion, in June we decided we would give up the house. We can live more economically elsewhere. Accordingly, we did not make the July or August payments and we have received letters stating that they intend to foreclose if certain amounts aren't caught up by later this month (September).

We chose to do this, planning to relocate to another state. Sadly, in August I discovered some serious breaches regarding our marriage, and I am considering leaving him. I was hoping to stay in the house until spring in order to get my job/financial ducks in a row in order to move on without him. Even in the best scenario with the kind of low paying low-skilled job I could get quickly, I cannot make full payments on the mortgage.

Because of our marital difficulties he has become secretive and I do not believe he is giving me full or correct information about the situation. Where once he agreed with me that the foreclosure process is a lengthy one, and we would likely be able to live here at least 6 months if necessary, now that he knows I am considering leaving him, he has changed his tune. He is saying that because the foreclosure is against an insolvent estate, and not against a living person, that the foreclosure will go very, very quickly and we could be forced out within 2-3 months. I do not know if this is correct or if he is merely trying to manipulate me into staying with him, or just trying to make me miserable since I am completely unprepared financially to support myself right now. (He has an RV he could move to. I, however, have limited options in terms of finding an affordable place to stay until I get a "real" job, and he knows it.)

Is what he is telling me true? Does a foreclosure proceed differently if against an insolvent estate rather than a living person?

I'm sorry this is so terribly lengthy, but I don't have the money to see a lawyer. Since I'm not legally tied to the house, the only things I feel I can do to protect myself are simply to move as fast I can to secure a sub-optimal job and an alternate living space. However, if I do that, it will drive the nails into the coffin of my marriage. (Since we intended to relocate, obtaining a job here is a sign to him that I'm not going to stay in the marriage.) I am not sure I want to give up on him, and we have started marriage counseling, but depending on the speed of a foreclosure process, I may not have the one thing I really, really need to feel even marginally confident about a decision to leave/stay in this marriage: the luxury of time.

- - - Updated - - -

Oops sorry, title should read sole mortGAGOR, not mortgagee! Can only edit body and not title

[Mr. Knowitall]

If the borrower was married at the time the mortgage was issued, the lender will have had the spouse who is not on the mortgage sign a contract agreeing to cooperate in the event of foreclosure. If the surviving spouse wants to avoid being named in a foreclosure action, he can talk to the bank about issuing a quit claim or similar conveyance such that it is not necessary for the lender to take action against him to obtain title and to gain possession of the premises.

The business about his not being allowed to assume the mortgage does not make sense. By virtue of the fact that the bank allowed him to continue to make payments on the mortgage, and took no action until you and he chose to default, pretty much renders that a moot issue, although the procedure followed when the death was brought to the bank's attention could have an impact on the present situation.

I don't know whether an estate was opened three years ago; if one was opened I expect it is presently closed. If the loan continues to be in the name of the deceased spouse, the lender would either have to reopen the estate or (if no estate was previously filed) start one.

If this goes to probate court and your husband cooperates with the surrender of the home to the bank, it's not so much a foreclosure action as it is the disposition of estate assets. Your husband is in a position to make things quite easy for the bank, so if he's actually saying, "I'm going to cooperate fully with the bank such that they can get possession within 2 - 3 months," he may be right about how long it will take. If prior interactions or your husband's present (theoretical) choice to waive his rights take this matter outside of the redemption period, the sale will occur much more quickly than would otherwise be possible.

[flyingron]

While they might not have allowed him to assume the mortgage formerly (though it seems skeptical as to why they wouldn't allow this), they can't foreclose/call the loan on him as long as the payments were made. The foreclosure is proceeding because nobody is paying the mortgage NOT because of any other factor. Yes, he is free to walk away. He has no responsibility to pay the mortgage. The bank will have no problem foreclosing on the property. Having an ownership interest in the property, he will be named in the foreclosure suit, but that is just because he will be losing his interest in the property.