Bank Claiming Possession

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cascey
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Bank Claiming Possession

Post by cascey » Wed May 13, 2015 8:54 pm

New here as well, don't quite know where to start as I'm originally from the Tampa Bay (Saint Petersburg) area. Though, temporarily visiting family. My situation is this:

I have been sole,full-time, live-in caregiver for adear friend these past ten years until he passed away this past September. With news of his passing, and his mortgage account having fallen behind three months the bank moved in, and is currently claiming full ownership of my home, in Florida. I have been questioning the validity of the banks action, and currently am seeking remedy as the course of action to take. What has transpired so far has been with no Public Notice and nothing having been done through the Court. I've been questioning if the bank even has the original Note, and any possibly constructive fraud against the Estate. Currently, am seeking lawful remedy.

Your attention, consideration, and assistance in this matter are greatly appreciated.
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Re: Bank Claiming Possession

Post by editor » Thu May 14, 2015 3:08 am

Some questions are in order:

1. You say there is a mortgage, so there is probably also a Warranty Deed. Whose name is listed as Grantee on the Warranty Deed?

2. What is the nature of your interest in the home? Are you listed on the deed? Did your friend leave a will, and list you as an heir?

3. Who are the heirs?

4. Do you have a copy of the mortgage? What rights does the bank actually have in the "default clause" of the mortgage? Does the mortgage contract allow for a period of redemption?

These would be the first questions to answer. Depending on the answers, I will probably have more questions.
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cascey
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Re: Bank Claiming Possession

Post by cascey » Sat May 23, 2015 3:24 am

editor wrote:Some questions are in order:

1. You say there is a mortgage, so there is probably also a Warranty Deed. Whose name is listed as Grantee on the Warranty Deed? my friend's name is the only grantee according to the Warranty Deed, though he is deceased as of SEPT2014

2. What is the nature of your interest in the home? Are you listed on the deed? Did your friend leave a will, and list you as an heir? I was his sole carecomapanion the past ten years, it has been my home. Yes there is a will; I am sole beneficiary

3. Who are the heirs? Yes, I am sole beneficiary.

4. Do you have a copy of the mortgage? What rights does the bank actually have in the "default clause" of the mortgage? Does the mortgage contract allow for a period of redemption? From what I am being told there is something about if the mortgage falls behind 90 days the bank takes over ownership.. Though I am beginning to question if the bank has the original note..if not, then?? Trying to navigate my next steps as lawful heir. So, far nothing has been said about a period of redemption. Any attention, consideration, and assistance is greatly appreciated!

These would be the first questions to answer. Depending on the answers, I will probably have more questions.
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Re: Bank Claiming Possession

Post by editor » Sun May 24, 2015 8:19 am

If, there's a will, as you say, it will have to be probated.

In the meantime, since you are the sole heir, it is in your best interest to make the payments to the bank. If the payments are behind, it would be a good idea to catch them up, as quickly as you are able.

Who is named as the executor in the will? Is that also you?

You can post copies of paperwork here if you like. It would help us to help you. Black out some of the info if you want, but remember all this stuff gets filed anyway, with the county recorder for the county in which the property lies; it's all public record.

It would also be a good idea to get a copy of the mortgage, so you can see exactly what rights the bank has, and what they do not.
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cascey
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Re: Bank Claiming Possession

Post by cascey » Sun May 24, 2015 9:45 pm

The estate is the house, and few personal belongings, nothing else. No collections of any sort, no stocks or bonds.. Replies from other law researchers is due to the size and "state" of the estate, as there is no equity to claim the estate (i.e. the house) by affidavit. Also, place a common law lien against the house which the bank said they already changed out the locks.. though to date haven't been able to verify..Senators have replied to other families that are/were in my situation to go back to their homes change out the locks on the bank and squat.. (in my case.. meanwhile doing all the filing of paperwork as mentioned, raising awareness, and legal fund(etc). Also, of interest are the drawing up of "Letters Rogatory", and a Petition of Land Use".. Regarding the Common Law Lien it is understood that the situation is like "Capture the Flag", meaning much depends on how far along the bank is in doing anything.. If the bank hasn't done anything further, that would suggest that there is still time. Does it not?

In December 2014, I was told by a bank representative that they were going to change out the locks within a matter of days.. The bank say they took full ownership on 16FEB2015.. They aren't moving toward foreclosure as the home owner is deceased. So, I'v e been pondering what would the steps be that the bank would have to take.. Next steps, such as Public Notices, etc.

Yes, I am the executor; and sole beneficiary.

Still have a folders of paperwork that I have been sorting through to better understand the situation.. as mentioned earlier.. "what rights the bank has, and those they do not".
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Re: Bank Claiming Possession

Post by editor » Tue May 26, 2015 6:32 pm

Considering the bank's involvement, your best bet in my opinion is to probate the will, as soon as possible.

The first thing I'd do, is file a Notice of Lis Pendens with the Register of Deeds in the County where the house is located. This puts the public on notice there are pending legal proceedings regarding this property, and will prevent the bank from selling it in foreclosure while the probate is open.

Then, immediately thereafter, file your petition with the probate court to admit the will.

Meanwhile, catch the payments up with the bank, so they can have no legitimate complaints.

I think changing the locks and squatting in the house is an excellent idea. Possession is a huge factor in deciding property disputes.
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cascey
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Re: Bank Claiming Possession

Post by cascey » Thu Jul 02, 2015 7:50 pm

editor wrote:Considering the bank's involvement, your best bet in my opinion is to probate the will, as soon as possible.

The first thing I'd do, is file a Notice of Lis Pendens with the Register of Deeds in the County where the house is located. This puts the public on notice there are pending legal proceedings regarding this property, and will prevent the bank from selling it in foreclosure while the probate is open.

Then, immediately thereafter, file your petition with the probate court to admit the will.

Meanwhile, catch the payments up with the bank, so they can have no legitimate complaints.

I think changing the locks and squatting in the house is an excellent idea. Possession is a huge factor in deciding property disputes.
..

I've gotten two separate answers from different law researchers regarding my situation.. here.. you've commented that it is best to open the estate to probate due to the banks involvement.. though due to size of the estate and no equity (etc) the other suggests to claim the estate by affidavit.. I'm in Florida, and uncertain if Claiming the estate by Affidavit works in Florida or not. Also, it has been suggested to file Common Law Lien (in which I'm thinking it is best to state anything anyone might have against the property. How to I defend the estate against constructive fraud?). That, and how to get the bank to prove that there is a mortgage debt (Wanting to know if they have the original Promisary Note and the original mortgage loan.. I forget where I read that one could approach the bank with intent to pay-off the mortgag e loan, discharge the debt whatever it is called with a silver dollar.. if the bank refuseds such payment then the mortgage loan is void (I foprget the Federal Statute information, and where written)..Also recently suggested, here; has been to file the Notice of Lis Pends.. I've asked someone.. a Notary to review the drafts of these documents.. She handed the documents back to me saying she hasn't seem anything like these before. (She has worked in the offices of a law firm and a Local PD) for years. At the moment I 'm feeling at a loss as to sense of direction and what needs to be done. Yes, I am on the Property.. it was left to me by inheritance... Your attention, consideration, and assistance, in this matter are greatly appreciated.
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Re: Bank Claiming Possession

Post by editor » Wed Jul 08, 2015 5:23 pm

The Notice of Lis Pendens is not intended to solve your problem. It is merely a stop-gap measure to prevent the bank from selling, or otherwise encumbering the land, while you figure out how to best proceed. I suggested this as an immediate way to help protect your interest.

I don't recommend trying to use a silver dollar to discharge the mortgage. The friend who told you that may mean well, and may even be technically correct, but it is not (in my opinion) a wise move. When the Montana Freemen started using the same kinds of commercial paper used by the banking cartel, they relied on good research, and all their actions were most-likely technically correct. That didn't stop many of them from being convicted of fraud, and spending five years in a federal pen.

I'm not saying that would happen to you-- such punishments are usually reserved for rabble rousers such as teachers and group leaders. But you'd be walking a very narrow line, and they'd probably find a way to trip you up.

I suggested probate because it is the most conventional way of handling this matter. Since there isn't much equity (meaning there isn't much for the probate judge or the lawyers to steal), you can probably settle the matter for two or three thousand dollars. If you end up with the house-- even a house still subject to a mortgage... well, you'll have to be the one to decide whether it's worth that or not?

The affidavit approach might work, if you know what you're doing. You've already learned you're likely to get as many answers to your questions as the number of people you ask. Ultimately the responsibility for your actions is yours. How much reading, study, and risk are you willing to undertake? I'd suggest you do the math. What do you stand to gain; how much loss can you absorb; what are the odds of success for each strategy?

Meanwhile, a Notice of Lis Pendens will help give you time to decide.
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cascey
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Re: Bank Claiming Possession

Post by cascey » Wed Jul 08, 2015 6:14 pm

I appreciate your input.. And please forgive the way I may come across at times, I've just got so much going on an no assistance locally.. that it is all so overwhelming.. I'd handed draft copies of a Notice of Lis Pends, Affidavit Statement of Facts, Common Law Lien to someone who might have had a bit of understanding of how those documents are drafted and such.. they were handed back to me.. while being told that she hasn't seen anything like this before.. Nobody seems to be saying anything about my filing a lien of any sort.. I'm interested in knowing of all wrongdoing that may have been committed against the estate (constructive fraud).. from what I understand that is where the Common Law Lien does come in.. to date the latest entry in Public Records is and entry made by the Mortgage Electronic Records System (MERS).. with reference that the entry is a mortgage assignment. Once again, I am on the property, as it has been left to me as I am the beneficiary as stated in the Will.. I've also been assured that I am not squatting.. not trespassing for the same reason.. the estate (the house was left to me).

Your attention, consideration, and assistance in this matter are greatly appreciated.
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Re: Bank Claiming Possession

Post by editor » Fri Jul 10, 2015 4:40 pm

Anyone who knows anything about land titles-- any attorney, title researcher, or real estate broker, should know what a lis pendens is. If your guy has never seen one before, then you asked the wrong guy. See this link:

https://en.wikipedia.org/wiki/Lis_pendens
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