[Georgia][Mortgage] Deceased joint tenant died without a will.

[vt1966]

[Georgia] Transfer a mortgage from a deceased owner to other joint surviving tenant

My father and I signed the deed for joint tenants with the right of survivorship for a house before he passed away two year ago.

Now the house is still under loan mortgage and I still have been paying off the loan since then even though the bill is under my father's name (say Deceased Jim Cater).

After two years, I decided do something so that the mortgage can be entirely under my name. I called the lender and applied to transfer the entire ownership and mortgage to my name but I was rejected. The lender said since there was no will, there was not anyone authorized to handle his documents. Therefore, the transfer was not possible.

But by the law, the surviving tenant would have the right to the entire property after the other tenant passed away. I explained this to the lender. However, they said that I do have the right to the property but I do not have the right to transfer the mortgage entirely to my name.

I did provide all the documents such as the deed of the joint tenants with the right of survivorship and the certificate of death to the lender but they could not proceed the closure with the reason of missing the will from the deceased owner.

What should I do now?

Sorry for my very bad English. I hope you can understand and give me some legal advice.

Thank you.

 

[OK-LL]

The bank does not have any obligation to transfer the mortgage to you. In fact, the bank has the right as a creditor of your father's estate to open a probate case and petition the court to pay the mortgage; the bank also has the right to foreclose on the mortgage if it contains a "due on transfer" clause, as most mortgages do.

You need to pursue a loan from another lender and payoff this mortgage, since they have already declined you. Or don't rock the boat and just keep making the payments, keeping your fingers crossed that the bank doesn't decide to pursue the other courses described above.

 

[LdiJ]

The bank does not have any obligation to transfer the mortgage to you. In fact, the bank has the right as a creditor of your father's estate to open a probate case and petition the court to pay the mortgage; the bank also has the right to foreclose on the mortgage if it contains a "due on transfer" clause, as most mortgages do.

You need to pursue a loan from another lender and payoff this mortgage, since they have already declined you. Or don't rock the boat and just keep making the payments, keeping your fingers crossed that the bank doesn't decide to pursue the other courses described above.

This would not be a "transfer" in that respect as the original deed was joint tenants with right of survivorship. OP has been on the deed, with an undivided interest, from the get go.

 

[OK-LL]

This would not be a "transfer" in that respect as the original deed was joint tenants with right of survivorship. OP has been on the deed, with an undivided interest, from the get go.

I don't see where you get that idea. He indicated that he "signed the deed for joint tenants with the right of survivorship for a house before he [the father] passed away two year ago." He did not indicate whether his father owned the property solely prior to that, but I suspect that is the case because only the father is named on the mortgage, an unusual situation in joint tenancy.

Moreover, I would assume if anyone signed a deed it was the father. The buyer or transferee doesn't sign a deed, only the transferer. There is some ambiguity in OP's statement. Perhaps he and his father were previously tenants in common (due to his mother's death and his inheritance of her TIC interest, for instance), or some other circumstance of ownership not fully described, resulted in both he and his father signing a deed for joint tenancy. Perhaps OP should clarify.

 

[vt1966]

I don't see where you get that idea. He indicated that he "signed the deed for joint tenants with the right of survivorship for a house before he [the father] passed away two year ago." He did not indicate whether his father owned the property solely prior to that, but I suspect that is the case because only the father is named on the mortgage, an unusual situation in joint tenancy.

Moreover, I would assume if anyone signed a deed it was the father. The buyer or transferee doesn't sign a deed, only the transferer. There is some ambiguity in OP's statement. Perhaps he and his father were previously tenants in common (due to his mother's death and his inheritance of her TIC interest, for instance), or some other circumstance of ownership not fully described, resulted in both he and his father signing a deed for joint tenancy. Perhaps OP should clarify.

My father and I were not previously tenants in common. And yes, my father owned the property solely prior to that but under mortgage.

The bank does not right to open a probate case and petition the court to pay the mortgage because I am automatically the only owner of the property after he died (we signed the deed for joint tenants with the right of survivorship). It's just that the mortgage cannot be transferred over to me.

I think it would best to consult from a estate lawyer for further steps. Thanks for your help.!

 

[STEPHAN]

So the deed was transferred partially to you without permission of the mortgage company?

 

[FlyingRon]

So the deed was transferred partially to you without permission of the mortgage company?

Why would he need the permission of the mortgage company?

The answer is the same here as on the other forum you asked. You need to go to the courthouse (or whoever handles land records there) and do what they need to satisfy that the joint owner is dead.
An attorney (real estate or one specializing in title/closings) there can do it easily.

Once you are the sole owner, you can attempt to refinance.

STEPHAN: Why would he need the permission of the mortgage company?

 

[STEPHAN]

STEPHAN: Why would he need the permission of the mortgage company?

IF the deed was transferred while dad was alive and IF he had a mortgage at that time, dad would most likely have violated his agreement with the bank.

 

[vt1966]

IF the deed was transferred while dad was alive and IF he had a mortgage at that time, dad would most likely have violated his agreement with the bank.

I would doubt that. As now, the bank already knew about the deed.
And I'm not sure what you meant by "the deed was transferred." Did you mean "the deed was signed"?

 

[STEPHAN]

I would doubt that. As now, the bank already knew about the deed.
And I'm not sure what you meant by "the deed was transferred." Did you mean "the deed was signed"?

So the deed was signed while he had a mortgage? Look at the mortgage agreement, I guarantee you that this violates the agreement.

 

[vt1966]

So the deed was signed while he had a mortgage? Look at the mortgage agreement, I guarantee you that this violates the agreement.

Can you quote from any where?

I actually have been attempting to look at the mortgage agreement and could not find any statement that says signing a deed while on a mortgage is violating the agreement.

 

[justalayman]

The bank does not have any obligation to transfer the mortgage to you. In fact, the bank has the right as a creditor of your father's estate to open a probate case and petition the court to pay the mortgage; the bank also has the right to foreclose on the mortgage if it contains a "due on transfer" clause, as most mortgages do.

You need to pursue a loan from another lender and payoff this mortgage, since they have already declined you. Or don't rock the boat and just keep making the payments, keeping your fingers crossed that the bank doesn't decide to pursue the other courses described above.

even if there was a due on sale clause prior to the son becoming a co-tenant, it cannot be called because the transfer was to a child. There are laws prohibiting such an action by the lender.


While they might try to petition to have the mortgage paid off by the estate, it cannot be required. The son steps into the father's shoes upon the father's death and as such, the son has all rights to continue the payment schedule in place.

beyond that, the law also prohibits the lender from calling the mortgage due based on the death of the borrower since the son was a joint tenant.

 

[justalayman]

So the deed was signed while he had a mortgage? Look at the mortgage agreement, I guarantee you that this violates the agreement.

I guarantee it doesn't. The laws in place specifically preclude the lender from calling the mortgage due if the grantee in a transfer is a child of the grantor.

and to support that, here is an excerpt from the Garn-St. Germain act speaking to a due on sale clause.

(d) Exemption of specified transfers or dispositions
With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon—

(1) the creation of a lien or other encumbrance subordinate to the lender’s security instrument which does not relate to a transfer of rights of occupancy in the property;

(2) the creation of a purchase money security interest for household appliances;

(3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety;

(4) the granting of a leasehold interest of three years or less not containing an option to purchase;

(5) a transfer to a relative resulting from the death of a borrower;

(6) a transfer where the spouse or children of the borrower become an owner of the property
;
(7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property;

(8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or

(9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board.

#4 applies to the current situation and #6 applies to the prior transfer