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  1. #1
    Join Date
    Jun 2008
    Posts
    9

    Default HELOC in Deceased Spouse's Name, Bank Will Foreclose

    My question involves a mortgage in the state of: Florida

    My sister's home has a HELOC in her deceased husband's name only. He left no estate but a pile of debt. My sister stopped paying the second but has kept current on the first. B of A refuses to discuss the HELOC with her because they said it is in his name only and he "left written instructions that it was not to be discussed with her." She is not eligible for HAMP because it is not Fannie Mae or Freddy Mac.

    Bof A is threatening to foreclose on her home because the HELOC is delinquent and it was used as collaterol on her house, to which she was co-owner with deceased husband. They refuse to discuss refinancing the HELOC (she has spent months jumping through hoops applying for a modification) because it is not in her name. She has been working on this for many months, but really dedicated herself to it since February and this is as far as she can get.

    Is it even legal for B of A to have allowed one party to take out a HELOC without the other party's consent and then to refuse to allow the other party to modify the loan to keep the house? I have never heard of such a thing and doubt it is legal. What do we do now?

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: HELOC in Deceased Spouse's Name, Bank Will Foreclose

    Quote Quoting targetman
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    He left no estate
    Yes, he did.

    His share of the house, his share of the personal property in the house, any cars that have his name on the titles, his share of any bank accounts with his name on it, etc, etc.

    Quote Quoting targetman
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    My sister stopped paying the second
    Bad idea.

    Quote Quoting targetman
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    B of A refuses to discuss the HELOC with her because they said it is in his name only and he "left written instructions that it was not to be discussed with her."
    That's the way it works.

    Quote Quoting targetman
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    Bof A is threatening to foreclose on her home because the HELOC is delinquent and it was used as collaterol on her house, to which she was co-owner with deceased husband.
    That's the way it works.

    Quote Quoting targetman
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    Is it even legal for B of A to have allowed one party to take out a HELOC without the other party's consent and then to refuse to allow the other party to modify the loan to keep the house?
    Yes and yes.

    Quote Quoting targetman
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    What do we do now?
    There's no "we" here.

    What she can do is open probate for "his" estate and get appointed as representative of the estate. She will be issued court papers authorizing her to act for the estate and that should be enough to allow the bank people to discuss the HELOC with her.

    That, unfortunately, will not change things with the loan itself.

    It's still tied to the house.

    Bottom line, she either pays the arrears and brings the loan current or risks losing the house if she can't get the loan refinanced in her own name.

  3. #3
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: HELOC in Deceased Spouse's Name, Bank Will Foreclose

    How was title to the property held between the husband and wife? That will make a difference as to the ability for them to loan on only his share of the property.


    As to what she can do about the loan: as you have found, it not being a conventional mortgage, it changes what she can do with the loan. She does have a right to pay off the loan, if nothing else. She would also be able to continue making payments on the loan. It appears either of those are a problem so it does tend to put her in a tough position.

    Does she even know the total debt? Is the total debt, the cumulative of the first mortgage and the helix, something she would even be able to make payments on if combined into one loan?

    does the total debt on the house exceed the current value?

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: HELOC in Deceased Spouse's Name, Bank Will Foreclose

    The home, we are to infer, is in both your sister's name and that of her late husband? If she was married to her husband when he took out the mortgage, before the lender would issue a mortgage to her husband she would normally (i.e., as a matter of course) have been required to sign documentation agreeing not to oppose foreclosure. If she does not recall that happening, she can ask BoA about providing her with a copy of the paperwork.

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