Deed not recorded +15 yr Sellers won’t sign HELP - Posted by Lisa
Posted by Lisa on November 02, 2000 at 09:02:59:
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:
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.
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.
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.
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.)
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!!