Deed/Title VS Mortgage: Interest in Real Property

[temple]

Texas
Here is the question for the hearing scheduled Friday in HIS bankruptcy court....Property is a single family home titled and deeded in my name only, as was purchased 1999 prior to knowing him. I lived in the house--met him--became engaged--he and I bought another house (in both names) and referenced property became a rental (contract in my name only) property in 2000. During course of our relationship, in 2002, added him to mortgage during a refinance (done to take advantage of lowering interest rates). Also in 2002 prop went under contract for deed to current renter (in renters and my name only). The only monetary support he can PROVE are 6 months mortgage payments that were pd out of a joint checking acct we shared temporarily. 2005 He filed bankruptcy...because he was on mortgage, he listed house in schedules....because he SAYS he believed he was AUTOMATICALLY added to the deed/title at the refi, he listed property as an ASSET and me as a CREDITOR. 2006 Bankr. estate trustee put a lis pendens on prop. Buyer under contract fled out of fear. This left me with no income on prop and no way to make any due to cloud lis pendens put over title. March 2006 he moves out one day while I am at work, lvg me w/ all financial resp for new home. Also 2006 his bankr is discharged but case not closed. Aug 2007, after motion to sell is filed by bankr court, I met with and showed all docs (title/deed/refi) to bankr trustee and she told me I had to either 1. purchase his interest 2. face mortgage fraud chgs frm the estate due to the refi papers (he signed as owner) 3. she would seize and sell to highest bidder...and I had 72 hrs. At that time, from those choices, I told her I wished to keep my house, and would try to come up with the $ to buy out his interest. Shortly after, was contacted by a lawyer and chose instead to fight for my home, rather than paying her. Estate maintains his ownership and the hearing over it's "Motion to Sell" and my "Motion for Dissolution of Lis Pendens" is Friday. Debtor will testify on behalf of his estate. Am told by my Lawyer we have a case if the court chooses to rule by the LAW, but not all do.....Anyones input here would be appreciated....What do I take to court...all cancelled checks fm my mortage/tax/hoa/utility/insurance past payments, that show my name and indiv bank acct?

 

[justalayman]

What do I take to court...?

whatever your attorney tells you to bring to court. After all, you are paying them for counsel, are you not?

 

[temple]

Lis Pendens=Loss of income

Albiet unfortunate, I do not trust my atty as much...guess that is why I am here! That being said....all advise is greatly appreciated!!!

Pls note that the debtor and I were NEVER MARRIED, if that makes a diff, I think it would be only in the fact that it never became community/marital property. Pls advise if there might be any possibility in asking for loss of income due to the fact that the property became frozen....unable to sell or rent...with the Lis Pendens (over a YEAR) imposed, if ruled that the estate never had the rights by title do so?

 

[justalayman]

with the Lis Pendens (over a YEAR) imposed, if ruled that the estate never had the rights by title do so?

did you immediately contest the lis pendens? It may or may not have been correctly applied but once it was allowed, it was your responsibility to contest it. If you failed to do so, you are responsible for failing to mitigate your damages by having the lis pendens removed sooner.

the fact he was on the mortgage and he filed BK was reason enough for the lis pendens though. It does not sound as if it was improperly applied. Reasoning is, if he signed for the mortgage, the mortgage holder had some sort of lein on the property for his responsibility of the mortgage and rightfully prevented the property from being sold out from under them.

It doesn't matter if he was a title holder or not. The bank has a right to secure it;s interest.

 

[temple]

Motion to Dissolve Lis Pendens

My counsel at the time immediately contested the Lis Pendens (will pm case # for yr assessment). The bank has not filed any claim in the bankr, and has not ever received a late payment...thanks to me. Seems that he(and his estate) would ONLY have an interest, if any, in the DEBT still owed on the property. And although there WAS equity in the property at the time of his filing, I was forced to take a loan on it to cover legal expenses along with upkeep on two homes. The equity in the home at this time is negative, if any. And, yes, I took out the loan AFTER the lis pendens was filed, in my name only, after disclosing EVERYTHING to the bank regarding the status. The estate has no knowledge, as far as I am aware, of the loan. What ramifications does this hve, if any, since the estate is asking to sell free and clear of any mortgages or liens on the prop.

 

[justalayman]

]My counsel at the time immediately contested the Lis Pendens (will pm case # for yr assessment).

Please don;t do that. You benefit from the whole here, not the one. Nobody here will tend to get that deep into a situation. Sthe courts refused to lift the notice, it would remove any liability to the estate unless you could prove it was improperly filed and with intent to harm you.

The bank has not filed any claim in the bankr, and has not ever received a late payment...thanks to me. Seems that he(and his estate) would ONLY have an interest, if any, in the DEBT still owed on the property.

it is not that he has an interest but he does have a debt to the mortgage holder and as such, anything that changes the status of ownersip of the property could adversely affect any possible claim to the property, if any.

What ramifications does this hve, if any, since the estate is asking to sell free and clear of any mortgages or liens on the prop.

they can ask all they want but unless the courts order such an action, it is meaningless. I would doubt that would happen, especially since it would cause the mortgage holder or any leing holder to recieve nothing yet it would still cause you to be liable for the debts. Doubtful.

Simply take any and all financial records you have concerning the house with you so they are on hand should the courts want them.

One other thing to note is, if the trustee filed the lis pendens in good faith and apparently the court refused to lift it at the time of the contesting of it, apparently the courts believed there to be some merit to allow it. Like I said, since the estate would have a liability to the mortgage company that would need to be fulfilled and presumably there is a lein on the property due to the mortgage, it would seem that the actions to date have not been incorrect. The courts may look at this such that since he was a co-debtor of the mortgage, you apparently were considering him to have some claim to the property or there was some sort of deal between the two of you. Most folks don't take the responsibility of a mortgage on their shoulders without some interest in exchange.

 

[temple]

No other advice?!? Court on Friday!

I hve been following these boards for the duration of my case and always took comfort in the advice of "if they are not on the deed, they hve no ownership rights!" Surely there is another angle that I can use to PROVE yrs!

 

[temple]

pleeeeeeeeeease help?

I am so scared I will lose my house! After the legal fees and making all the payments to try and keep two homes out of foreclosure....If I lose this I will be living under a bridge! If anyone could offer any advice I would be grateful....even as simple as what evidence to take...

 

[seniorjudge]

I hve been following these boards for the duration of my case and always took comfort in the advice of "if they are not on the deed, they hve no ownership rights!" Surely there is another angle that I can use to PROVE yrs!

What does "PROVE yrs" mean?

 

[temple]

Deed holder=owner

Thank you for responding! I am only referring to the majority of experts on the board who hold to the theory that the individual on the deed/title is the owner. I did not mean to offend....simply grasping at straws maybe...