Maximizing Time Prior to Foreclosure
My question involves a mortgage in the state of: Texas
Am seeking advice on a delay strategy maximizing time spent forestalling foreclosure/eviction while balancing legal fees necessary to implement that strategy so that they average out much less than had paying the mortgage been possible. Please reserve commenting on the ethics involved, only the legalities are of interest, we wish to "game" the system to the maximum extent possible under the law, and, if possible play for a "win" if there is any technique that might make that possible. Thank you for any help you can give me in achieving my goal. Details of the situation are as follows.
My father died and there does not appear to be any advantage to incurring the expense to probate his Will as he left behind only a few thousand in cash and a mortgaged house, the current market value of which is only half of what is owed on the mortgage. His grandson resides in the house and has found it impossible to work sufficient unskilled labor hours to both attend college and make the mortgage payment, therefore, the mortgage holder is in the process of proceeding to foreclosure. It is in the grandson's best interest to delay and obstruct the foreclosure/eviction process as long as possible while he occupies the house as opposed to trying to finish college while at the homeless shelter, a place he has been lodged more than once incidentally. There are about $2000 in funds available for legal expenses plus a few hundred more per month. The question is how to apply those funds most efficiently so as to only bringing in the specialized foreclosure attorney for legal filings and court hearings.
I need to digress slightly on an issue that is of significant importance to this process. My readings over the last few years have resulting in the impression that if, and only if, one retains counsel experienced in foreclosure issues, perhaps as many as half of the "parceled out, sold and resold" mortgages from a decade or so ago have a significant probability of being legally unenforceable in court due to the inability of the current mortgage holder to establish legal ownership of the mortgage with anything other than a computer printout. At one time, an estimate of as many as half of such mortgages having that problem was asserted, however, I assume that estimate is too high. The question is, in Texas, is it a viable strategy to try to gamble that the current mortgage holder cannot legally show ownership of the mortgage with an audit trail leading to a manual signature establishing ownership?
I understand that it is helpful if there was some sort of irregularity by the lender and there might be a small one in this case. My father was in his mid-70's when he obtained a 30-year loan backed by no foreseeable additional assets beyond a modest pension. So it was highly probable that he would die before the mortgage could be repaid. He knew that, the lender knew that, all either cared about was that he would send them payments until he died.
If "proof of ownership" is a viable legal strategy currently, my nephew wants to take maximum advantage of it to, even if it should ultimately fail in court, run the clock out as far forward as possible on foreclosure/eviction. Legal funds need to be conserved so it is desired to avoid legal fees until an actual foreclosure action/notice is served. The wolf is at the door and it's cold out, the immediate question is:
Respond to requests from the mortgage holder or not? My inclination is not, limit contact to in writing only and answer no questions, only ask them for documentation that they own the mortgage.
Re: Maximizing Time Prior to Foreclosure
You suggest that the home is still in grandpa's name, and you have not indicated that the mortgage is held by anybody other than grandpa. If that's the case, grandson is in an extremely poor position to try to delay foreclosure.
If grandson wants to play games, I suggest that he retain a lawyer. You're asking us to shoot in the dark, which is a complete waste of time.
Re: Maximizing Time Prior to Foreclosure
since nobody has standing to challenge a foreclosure, nobody can do anything to forestall the foreclosure.
If the house is secured by a deed of trust, the lenders actions are quite simple; they already have a right to sell upon default. If there is a secured mortgage the method is a bit more involved but not so much it would slow the bank down much.
about the only thing that would delay the process would be to open probate but even then, the lender is not required to delay their process anymore than they choose to. You are at the whim of their sympathy.
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Respond to requests from the mortgage holder or not?
it would make no difference since anybody responding would have no legal authority to object to anything or even address it. In other words; they aren't going to care because you don't make a difference in this situation.
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My inclination is not, limit contact to in writing only and answer no questions, only ask them for documentation that they own the mortgage.
so you intend on impersonating your father and intentionally causing the lender damages? Is that what you are suggesting?
Re: Maximizing Time Prior to Foreclosure
Thank you for directing my attention to the matter of standing, most helpful, yes, it certainly sounds like my nephew lacks standing to contest anything. I will direct my studies in that direction.
I'm sorry, but I don't get the whole "impersonating" angle, as best I can tell, no one is impersonating anyone. I'm reasonably sure I sent the mortgage holder a copy of the death certificate, which would really kind of mess up any attempt at impersonation, except maybe on Halloween!
And I assure you, I'm not causing anyone damages or fool enough to make an attributable statement that could be construed as such. My own financial affairs are debt free and have always been properly and legally conducted. I have no control over choices made by the nephew and may even disagree with them, however, to the extent that his actions are within the law, I consider it his right to attempt to take any advantage that the law allows. I am merely attempting to learn more about the law to see if there is some advantage that can be taken within it. I sorta thought that's how the legal system works...
Re: Maximizing Time Prior to Foreclosure
[QUOTE=NeedinHelp;763287]Thank you for directing my attention to the matter of standing, most helpful, yes, it certainly sounds like my nephew lacks standing to contest anything. I will direct my studies in that direction.
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I'm sorry, but I don't get the whole "impersonating" angle, as best I can tell, no one is impersonating anyone.
Your implication when considering ignoring or responding to mailings sent to your father. Otherwise what you do is meaningless since you have no legal standing to do anything at this point.
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I'm reasonably sure I sent the mortgage holder a copy of the death certificate, which would really kind of mess up any attempt at impersonation, except maybe on Halloween!
then it is simple enough; no probate, bank is free to act as they desire.
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And I assure you, I'm not causing anyone damages or fool enough to make an attributable statement that could be construed as such.
intentionally acting to delay them reclaiming their property with no basis other than to delay the process? Hmm, seems like there are intentional actions on your part (or your nephews if you prefer) that could cause damages to the bank.
My own financial affairs are debt free and have always been properly and legally conducted. I have no control over choices made by the nephew and may even disagree with them, however, to the extent that his actions are within the law,
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I consider it his right to attempt to take any advantage that the law allows.
and so to does the bank. Unless nephew can put forth some reasonable argument he has a right to do anything here, he becomes nothing more than a tenant, or if he moved into the home after your father's death, an actual trespasser.
Re: Maximizing Time Prior to Foreclosure
Actually, the word "squatter" comes to mind in my nephew's case! And yes, I certainly see the point about being coy with respect to use of the word "delay", however, it could also be noted that delay is certainly an allowed tactic as long as long as one has a valid reasoning for believing one might have a reasonable chance of prevailing in court. That was my belief when I began this thread, however, as has been sagely pointed out, that is only the belief of a fool ignorant in the law on this particular matter. Though I was such a fool at the beginning of this thread, not so now, if there is something to fashion a delay strategy around, it must be found elsewhere.
And frankly, I don't see any good point at which to begin. Thank you for pointing out that the lender could proceed with foreclosure even if the estate were in probate, the attorney who advised against probate did not mention that. Good info to know.
Re: Maximizing Time Prior to Foreclosure
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NeedinHelp;763307]Actually, the word "squatter" comes to mind in my nephew's case!
if he was there with a right to be there, he cannot be a squatter. He is simply a tenant. If he moved in after your father died, sure, you can call it a squatter but the only difference between that and a trespasser is the spelling
Re: Maximizing Time Prior to Foreclosure
Sorry, forgot to clarify, he resided there before my father's death. I believe the original loan was through the VA, any survivor provisions there?
Re: Maximizing Time Prior to Foreclosure
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Quoting
NeedinHelp
Sorry, forgot to clarify, he resided there before my father's death. I believe the original loan was through the VA, any survivor provisions there?
sure. all you have to do is open do what it takes to transfer title and continue paying on the loan.
Re: Maximizing Time Prior to Foreclosure
Thanks, very interesting, so if that is done and title is transferred to the nephew and he later defaults on the loan, does he then have standing?
- - - Updated - - -
Spoke to the lender, turns out VA assumption to nephew was the way to go before my father died, they'd have probably gone with it, moot point now as the nephew made the mistake of missing a payment thereby establishing that he is not a good credit risk. Shows the value of doing one's research well in advance, there are fewer options available the longer you wait.
As always, my thanks to the ExpertLaw community for their assistance. Over the years, your collective advice has saved me hundreds of dollars of legal fees by allowing me to only visit a lawyer once I have reached a point where I cannot handle something through informed research. And allowed me to ask more pertinent questions and get better quality advice when the clock is running at lawyer's office.