Deed not recorded +15 yr Sellers won't sign HELP - Posted by Lisa

Real Estate Investing
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Posted by Ron Ohara on November 03, 2000 at 20:48:23:

I am following up with my response that I made to you a day or two ago. In your original question, you indicated that your relative ASSUMED the first and second, which now makes them responsible for the loan. Until the title situation is cleared, your relative will be responsible for the payment of the mortgage. They should keep the payment current for their own credit sake and let due process take it’s course on the remedy of the title situation. Sorry, I did not pass this on with the original response.

Ron Ohara
Capital 500 Funding

2

Deed not recorded +15 yr Sellers won’t sign HELP - Posted by Lisa

Posted by Lisa on November 02, 2000 at 09:02:59:

Dear Reader:

I have a rather convoluted story I would like to share with you. I am hoping you can offer some advice for my family member.

Here is the story. I will give you a short overview first and then the details.

The quick story is my Uncle & Aunt (buyers) assumed a first mortgage and second mortgage on a house 15 years ago. The transaction took place in a Real Estate Office, an attorney drew up the assumption paperwork. My Aunt (buyer) only has copies of the transactions. My Aunt (buyer) does have a copy of the Warranty Deed, Assumption Deed and more. Fifteen years ago when they (seller and buyers)went to sign all of the paper work, the wife (seller)was not present. The wife (seller) had given the husband a power of attorney to sign for her. On all of the paperwork he (seller)signed his name and her (seller)name. When signing her name he also wrote (POA) beside it. The notary notarized each of these occurrences.

The second mortgage that was assumed by my Aunt (buyer)at the time of transfer has since been paid in full.

The loans (VA & the second mortgage) were transferred into my Aunt’s (buyer) name; however, the deed was never recorded. The copies of the paperwork she is holding indicates at the bottom of the Warranty Deed-that once recorded the documents are to be mailed back to the Seller (husband). I am unsure if it was ever mailed back because it was never recorded.

The original paperwork cannot be located by either the attorney (drew up the paperwork)or the real estate office. The attorney maintains it was not her responsibility to record. The real estate office states they don’t keep paperwork that long. It is unclear if there was title insurance.

The buyer (my Aunt) discovered the property was not in her name +1 year ago. Initially neither seller would sign the Deed over. The husband has since signed the deed to my Aunty. Now, they are awaiting for the wife to sign. She refuses to sign.

The property is to be sold on Nov. 7, 2000. The property is located in Houston, TX, Fort Bend County. The property has about 45K left on it and comps in the area go for $80K.

Here are our questions, concerns and objectives:

Question:

  1. If 15 years ago the wife gave the husband power of attorney (to sign over the property, and now the husband has indeed signed the property over to her my Aunty (the buyer)----- Shouldn’t my Aunt (buyer) be able to record this reconveyance now? Is it necessary to have the wife sign at this point? All papers were notarized. FYI: The original power of attorney is lost with the original paperwork.

  2. Because the terms of the loan with VA (15 years ago) was that the property had to be conveyed to the Buyer (my Aunt), and because the terms of the agreement were not fully met (the property was not conveyed), is it legal for them to foreclose in her name (the loan did transfer to her name 15 years ago)?

If she has no other recourse in maintaining her home, then she certainly doesn’t want to ruin her credit considering she is being treated much like a renter vs. an owner.

If foreclosure occurs in her name she will not be able to purchase another home. She is too old to start over.

  1. If the property must go to foreclosure is there a way I can record a second mortgage against the property so she can try to recoup some of her investment in the house? The property has quite a bit of equity.

  2. Legally, is there anyway she can use the copy of the signed Warranty Deed of Trust to record? (Keep in mind we do have an orignal signed Reconveyance right now.)

  3. Can you offer any advice which help my Aunt (buyer) in keeping her home or avoid destroying her credit. She has lived in this house for 15 years. She never had any intention to get this old and discover she was purchasing a home for someone else!!

Thanks.

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Re: Deed not recorded - Posted by JPiper

Posted by JPiper on November 03, 2000 at 11:45:26:

I think Ron below is basically correct. It would appear there is plenty of responsibility amongst the various parties for the lack of recording. A good real estate attorney ought to be able to stir up enough interest to remedy the situation between the title company, closer, real estate company, attorney, etc.

That doesn’t solve your problem right now. You need to stop the foreclosure. Why not bring the note current? Regardless of what happens, the note has to be paid or a foreclosure is going to take place. If you could wave a magic wand and get that deed recorded, a foreclosure is still going to take place if the note isn’t paid. So pay it, then take action with an attorney.

JPiper

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Re: Deed not recorded - HELP - Posted by Ron Ohara

Posted by Ron Ohara on November 02, 2000 at 21:39:37:

I have seen this too many times in which a closer has failed to do his/her job in a sale transaction. I have to assume that since there is a sale to close by 11/07/2000, Title has notified the Sellers that they are not in title and in order to complete the sale, a Warranty Deed will have to be produced and executed by the original Sellers to your relatives.

If the original attorney was hired to handle the sale and closing of the sale transaction, 99.9% of the time, the closer (attorney) is to record the Warranty Deed, Assumption Papers and to make sure the buyer is receiving clear title to the property less what was agreed upon to remain, such as the mortgages.

If the original closing attorney is failing to complete what was originally to take place; the original Sellers refusing to complete what was required back then. I strongly suggest that your relative seek legal counsel and get everyone involved (original attorney; seller and title company, if any). If your legal counsel formally notifies the parties of any type of consequences involved in failing to complete what was to take place over 15 years ago, I believe you will get everyone to participate to make sure everything closes as soon as possible. If your relatives have a copy of either the Real Estate Purchase Agreement, Escrow Instructions, Closing Settlement Statement, copy of the Warranty Deed and anything between Seller and Buyer in the transaction, this will help the attorney out greatly.

I hope everything goes well for your relatives.

Ron Ohara
Capital 500 Funding