Ask Me Help Desk - Florida mortgage foreclosure, suit against heirs

Florida mortgage foreclosure, suit against heirs

My dad died 2 years ago. He owned a home in Florida and one in another state. I was executor in the other state but never opened probate in Florida because the house was in the red so attorneys in Florida told me to just walk away, don't do anything. So for two years I have done nothing. Then I started to get mortgage statements addressed to Estate of>>>. I threw them away. I then decided to check the county court to see if it had been foreclosed on. Low and behold, I see my name and my sibling's name listed as defendants along with my father's name as a defendant. I don't even know how they got our names. We never filed a Will there in Florida, never opened estate, never appeared, never claimed the house nor wanted to and now, I see this. Not sure what my next step is to do.

I have moved this new question from this old thread.

They cannot get a deficiency judgment against you and your siblings unless you signed the mortgage note (I assume neither you nor your siblings did). You are named in the suit because, for all they know, you claim an interest in the property. Thus they are seeking to "foreclose" (i.e.: end) that interest.

Check the complaint ("Count II" in most Florida foreclosure complaints) and make sure it doesn't ask for a deficiency against you. If it is not clear whether it does nor not, answer the complaint by stating that you aren't personally liable, and so a deficiency judgment agfainst you should not be entered.

I'm wondering here whether you needed to file probate in Florida. Generally you file probate where testator last lived. Doesn't matter where the property is. That means, that your fiduciary responsibility as executor would require listing the FL property and its debt as part of your father's estate. If that is the case (and I'm not positive it is) you could have some liability here.

I'm would consult another estate attorney. You said attorneys in FL, but you didn't say whether they were estate or real estate attorneys.

Quote:

Originally Posted by ScottGem

I'm wondering here whether you needed to file probate in Florida. Generally you file probate where testator last lived. Doesn't matter where the property is. That means, that your fiduciary responsibility as executor would require listing the FL property and its debt as part of your father's estate. If that is the case (and I'm not positive it is) you could have some liability here.

OP is (or was) executor in the other state (presumably the decedent's place of residence). Such an executor would list the asset in the inventory filed in the probate court (where OP is PR). That inventory would show the Florida property as being "under water" (net value zero). It would not be necessary to file an ancillary probate proceeding in Florida because it would have been impossible to liquidate the asset so as to realize any value for the estate creditors or heirs.

I don't see any liability.

Quote:

Originally Posted by ScottGem

I'm would consult another estate attorney. You said attorneys in FL, but you didn't say whether they were estate or real estate attorneys.

All attorneys are expected to know something about both. Actually an attorney practicing probate law will have to know quite a bit about real estate law as well.

And you said there were two properties, what about cash, cars and other items.

They have a claim against the estate, and the estate would have to pay them, prior to paying any proceeds out, so did the other property get sold, what happened to money, if there was any.

Quote:

Originally Posted by Fr_Chuck

...
They have a claim against the estate, and the estate would have to pay them, ...

No, as I read it they never served the estate with a notice of claim.

Quote:

Originally Posted by AK lawyer

OP is (or was) executor in the other state (presumably the decedent's place of residence). Such an executor would list the asset in the inventory filed in the probate court (where OP is PR). That inventory would show the Florida property as being "under water" (net value zero).

So that agrees with what I thought, the problem is I don't know if the OP DID list the Florida property. My read of the original post was that he may not have. That he just "walked away" from it.

Quote:

Originally Posted by AK lawyer

It would not be necessary to file an ancillary probate proceeding in Florida because it would have been impossible to liquidate the asset so as to realize any value for the estate creditors or heirs.

I don't see any liability.

Again, I agree that there was no need to file in FL. But my point is that, the FL property needed to be listed and the mortgage holder informed of the probate proceeding. If this was not done properly, then the fiduciary responsibility as PR was not fulfilled. This may open the OP up for some liability.

It depends upon the law of wherever the estate was probated, but normally notice to creditors would be published. Assuming that was done, the executor (personal representative) would not be labile.

In Florida, when the judge is informed that a mortgage borrower is deceased, an attorney ad litem will be appointed to try to contact the estate and heirs, and to protect their interests.

Quote:

Originally Posted by AK lawyer

It depends upon the law of wherever the estate was probated, but normally notice to creditors would be published. Assuming that was done, the executor (personal representative) would not be labile.

Again, I agree. But my concern here is that the FL property was not listed as part of the estate. And if that was not done, the PR may not have fulfilled their fiduciary responsibility. Hopefully the OP will return and advise.