Co-Landlord Abandoned Property

[Mark5739]

What is the name of your state (only U.S. law)? IL

Hello
My mother, father and auntie bought a 2-flat house 30 years ago. My auntie lived on the second floor for 26 years. For the last 5 years my auntie has been collecting rent from tenants she rented her apartment out to. Our family lived on the first floor. So my auntie has been paying half and my folks paid half all this time.

The problem is my Auntie has disappeared. She has only made two payments (One in Feb and one in Mar) in the last 6 months. And those 2 payments that she did make were both about 60 days late. They were due in Dec and Jan. Her son has been living in the apartment for the last 9 months. He has gave many excuses. First, in Jan he said she did not tell him he was going to have to start paying the rent until the last minute.

Then he would say he gave his sister the rent and but he doesn't know why they took 2 or 3 weeks to send it to the bank. Then in March my mother gave him a 5-day notice and they made a payment so she dropped it. Then in late March he told us he was getting a check at the end of the week from a lawyer due to an injury lawsuit. He said watch for it in the mail. 3-weeks went by then in early April he told me he had paid the money. The bank never got it. He said he was on bad terms with his family and he don't talk to them and don't know what is wrong with them.

In Nov they moved into a more affordable home in a neihboring state, Indiana. They did not give my mom the phone number or address. We ask the son and he claimed he was on bad terms with them and they would not answer his phone calls either. So in Feb my mom said since they take their time sending the money in why don't he give it to her? So the next day he said his sister finally got in touch with him and asked for the payment. He also told my mom he did not want to get in the middle of it so he'd keep giving them the payments instead of giving it to my mom or the bank. So that's when we tried giving him the notice and they paid half of the late rent due.

So in late April he tried to stop us from giving him another 5-day notice by telling us that he paid his mom all the rent from the "money he got from a lawyer." I told him fine just take the notice and if the bank gets the money you can just tear it up. The bank has not received a penny. So now the Sheriff has served him papers and we are suing him for the 2 months worth of mortgage papers since he "don't talk" to his mom. So I am also in the process of writing a loan modification hardship letter.

I wonder can my mother sue this auntie for breach of contract or something? Can the judge give an order where they either have to pay the bank the money or allow my mom to rent the apartment out to somebody herself? More detail will reveal that they act like it is their sole purpose in life to give us trouble. They had bad tenants up there last year, we had to call the police on them about 10 times. The judge told my auntie how unfair it was. They were so ridiculous the judge gave us an order of possession. Her tenants had to leave and thats when her son moved in and started doing a little work on the place. Her daughter buys some big old house all brand new furniture, lost her job and now she lost it in Nov 09. That's not our fault, she should have told her tenants to respect my mom, she should have told them my mom was co-landlord instead of her tenant for that matter.

But if they will not pay the money we are looking to evict her son and get a loan modification to where we can pay the full mortgage until we get a renter up there. Selling right now is not an option. My auntie knows in 2 or 3 years we will have means to by her out. For the last 2 years they have given us a million different excuses to inconvience us, any judge can see that. Any suggestions?

[Ohiogal]

Your aunt is allowed to let anyone she wants live in her apartment -- rent free if she wishes. Do your parents have a rental contract with the person living upstairs? Did they ever?

How does the mortgage read? Because quite frankly it has been 31 years since they bought the duplex. Your aunt lived there 26 years and someone else has lived there the last five. How many times did they refinance? If they did most likely each party is completely responsible for the entire outstanding mortgage. You cannot get a loan modification because you are not a party to this. You also cannot force your aunt off the title without a partition lawsuit.

[Mark5739]

"Your aunt is allowed to let anyone she wants live in her apartment -- rent free if she wishes. Do your parents have a rental contract with the person living upstairs? Did they ever?"

Not necessarily, last year we legally evicted her tenants against her wishes, I know because I did all the paperwork. My parents can easily get an order for possession without ever having a rental contract with her tenant. I'm looking at an order or possession right now that we got against her wishes, my mom had absolutely no contract whatsoever with them. My mom owes the building too. And my aunt will have to come out of her foolish hiding and tell the judge why she haven't paid her half in so long. What is she going to tell the judge? I won't pay the bill because I'm stupid? My mom has just as much right to let anybody she wants live in the apartment, rent free if she wishes, especially since she has to live on the property and my auntie has disappeared without paying the bill for so long.

The mortgage says alot of things I don't know what you are specifically asking.

They refinanced once in 1997. Don't you need to know who is getting the loan modification??? My mom, the bank told us to do this.

The bank said there is a way to get her off the title without a partition suit, that would have been refinancing but my mom don't qualify because my auntie is late. The bank also said when we send in the modification request they were going to look into getting her off the title. I wonder about that.

Say my auntie never pays her half of the mortgage again, what can she be sued for? Common sense tells me the justice system is not going to allow her to do it without awarding my mother some type of judgement against her. Common sense tells me that my auntie is at fault for not informing my mother of what was going to happen. I just haven't translated that into how to handle it in court yet.

It sounds like a form of breach of contract to me. She broke an agreement to pay half the bill. Nobody is going to think there was no agreement to pay half.

I wonder if partician court can give an order where, with her history, she has to keep paying half or if she does this again lose her ownership.

[Mark5739]

Why would my low-income mom have an agreement to pay the full mortgage and just let my higher-income Auntie have use of the apartment for free? Who does that? Obviously there was never such an arrangement.

[Zigner]

Mark - you've got all the answers...why are you here?

One thing I wanted to point out: You can't sue the tenant for the late mortgage payments. Well, you CAN, but you'll lose. "Why", you ask...because the tenant has no obligation to pay the mortgage!

[Mark5739]

What are you talking about I have all the answers? If that is what you want to assume that is fine with me.

Thanks Zig for the info on what I can't do. And thanks Ohiogal for the info on what you thought we could not do. Back to my original post we are interested in what we can do about this situation?

[FlyingRon]

While people may have half ownership in the property, they are each individually fully responsible for the mortgage. As far as the bank is concerned, someone has to pay or you are in default, all your credit will be dinged, and the property is foreclosed, and you will lose all the ownership interest.

Your options are to make the payments, and if you do have an enforceable agreement with Auntie to sue her. Another option would be to file for petition. Both of these are civil actions and unrelated to anything you can do to the tenant. Both will require you to contact a lawyer rather than deal with free advice from internet armchair legal wannabees.

[Zigner]

Originally Posted by Mark5739

What are you talking about I have all the answers? If that is what you want to assume that is fine with me.

Thanks Zig for the info on what I can't do. And thanks Ohiogal for the info on what you thought we could not do. Back to my original post we are interested in what we can do about this situation?

Ok, perhaps YOU would like to explain the theory under which you are suing the tenant for mortgage payments?

[Mark5739]

By the way while this guy is not directly obligated to pay the mortgage he interferred with mothers potential decision to pay the full mortgage several times by promising to pay half the monthly mortgage. He even went so far as to tell us he did pay the mortgage.

[Mark5739]

Zig have a good day. First you assume I have all the answers then you tell me I don't. I don't know what the problem is. Have a nice day sir.

[Mark5739]

Thanks FlyingRon, it never hurts to try free advice first. That's what I'll do find legal help like you say.

[Zigner]

Originally Posted by Mark5739

Zig have a good day. First you assume I have all the answers then you tell me I don't. I don't know what the problem is. Have a nice day sir.

I'm sorry - I missed your answer...why are you suing the tenant for mortgage payments that he's not obligated to pay?

[Ohiogal]

Originally Posted by Mark5739

Why would my low-income mom have an agreement to pay the full mortgage and just let my higher-income Auntie have use of the apartment for free? Who does that? Obviously there was never such an arrangement.

If mommy signed the mortgage that is what she arranged. She is responsible with the bank. And legally auntie can let anyone stay in her apartment that she wants. It is HER property as well. As for what Auntie can be sued for? Google partition lawsuit.

[Ohiogal]

They refinanced once in 1997. Don't you need to know who is getting the loan modification??? My mom, the bank told us to do this.

That will make your mom SOLELY responsible for the mortgage.

The bank said there is a way to get her off the title without a partition suit, that would have been refinancing but my mom don't qualify because my auntie is late. The bank also said when we send in the modification request they were going to look into getting her off the title. I wonder about that.

Nope. The BANK cannot remove her from title. Auntie owns the property and no one but a court can force her off the title if she doesn't want to voluntarily sign over her portion of the property. Hey but take legal advice from banks -- those fine institutions of brilliance that required billions of dollars in bailouts.

Say my auntie never pays her half of the mortgage again, what can she be sued for?

She can be sued for a partition lawsuit to force her off the title.

Common sense tells me the justice system is not going to allow her to do it without awarding my mother some type of judgement against her.

Property agreements require writing. Google statute of frauds.

Common sense tells me that my auntie is at fault for not informing my mother of what was going to happen. I just haven't translated that into how to handle it in court yet.

Nope. Again, statute of frauds.

It sounds like a form of breach of contract to me. She broke an agreement to pay half the bill. Nobody is going to think there was no agreement to pay half.

Yes there will. The statute of frauds governs. Was there a written contract requiring auntie to pay half the mortgage for the entire duration of the mortgage? I can just about bet the mortgage/promissory note from the bank doesn't require that.

I wonder if partician court can give an order where, with her history, she has to keep paying half or if she does this again lose her ownership.

Nope. What contract is she breaking?

[Mark5739]

Please pardon me, I'm not familiar with how to use the quotes button.

Thanks

Originally Posted by Ohiogal

That will make your mom SOLELY responsible for the mortgage.

You mean if she gets a loan modification she will be solely responsible? Or do you mean she is solely responsible because they refinanced in 97?

We have to turn in the loan modification request asap. So if she change her mind before she get it can she cancel the request?


Nope. The BANK cannot remove her from title. Auntie owns the property and no one but a court can force her off the title if she doesn't want to voluntarily sign over her portion of the property. Hey but take legal advice from banks -- those fine institutions of brilliance that required billions of dollars in bailouts.

So the bank is lying to us?

I'm kind of skeptical of the bank. First they said the only way to get her off the lease was to refinance. Mom was not able to refinance. Then they said ok send in information to try to get a loan modification. So at the end of the conversation they come out the blue and said, "ok and well also see if we can get your auntie's name off the home." Does it sound like they are just trying to get my mom obligated to pay the entire mortgage by herself without her know what she is agreeing to?

She can be sued for a partition lawsuit to force her off the title.
Does anybody do this without hiring a lawyer? And from what I've told you, you think that would work? According to what you are describing to me it sounds like my mom will have to get the modification, pay the entire new monthly payment, and sue my auntie to get her name off the house. And do you think my mom would be able to sue for the rent that is currently due but not rent due after the modification?

Anybody know a better way, besides selling? Is there a way we can buy more time with the bank in this situation where mom have been lied to and abandoned?

I wonder why my Auntie just don't sue my mom for partition? She must think she can't win I guess?

Since my auntie is hiding and didn't give my mother notice of this mess does that hurt my auntie's position in such a partition case?

Property agreements require writing. Google statute of frauds.


Nope. Again, statute of frauds.

Yes there will. The statute of frauds governs. Was there a written contract requiring auntie to pay half the mortgage for the entire duration of the mortgage? I can just about bet the mortgage/promissory note from the bank doesn't require that.

Nope. What contract is she breaking?

I'm confused about this last statement here. Are you saying no court has the authority to force such an order.

Or are you saying even with such an order she would still need to be breaking a contract before the order was acted upon?

Thanks,
I appreciate it.