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HotHoneyVintage · Oct 16, 2011, 12:30 PM

My father passed away this year and I was living with him in his home in the state of NJ. He was ill and I was taking care of him, he used to live on his own for a long time. Anyway, his home (where I am still residing) is in foreclosure since last year, all of these details have been thrust onto me and my brother as the executors of his will. We knew nothing about it. We found out recently the mortgage company is an "injunction" next month, which we're told means they can come lock up everything in the home and sell it through sheriff's sale, since my father passed away and we're not on the deeds. I have no job, no money and no wheres to go. SIGH. I was told by a lawyer he can file bankruptcy on behalf of the estate -- but everything else I've read online says a deceased person nor their executors can file bankruptcy. Which one is correct? We're not trying to keep this house -- but we don't want to come home and it's locked up and all our possessions are inside. We have NO time to move all of our belongings and my father's too :( Please advice. TY.

AK lawyer · Oct 16, 2011, 01:28 PM

Originally Posted by HotHoneyVintage

... We found out recently the mortgage company is an "injunction" next month, which we're told means they can come lock up everything in the home and sell it ...

What do you mean when you say that the company is an injunction? An injunction is a court order prohibiting someone from doing something, so this sentence doesn't make any sense.

And how did you find this out? Did you receive a written notice of some kind? Typically, a process of this nature would involve an application for a court order and then, after giving you due notice, a court order giving the mortgage holder the right to take possession of the house, not it's contents.

ScottGem · Oct 16, 2011, 01:49 PM

I'm assuming you meant HAS an injunction. But that still begs the question of how you were informed about it.

The next question is whether you have gone to probate for the estate. If you have legally been appointed as executor for the property and are also an acknowledged heir then the fact that you aren't on the deed doesn't matter. You are responsible for the property and have a right to use it or designate its use.

That doesn't mean they can't foreclose, but it may mean they can't just lock you out.

HotHoneyVintage · Oct 16, 2011, 04:03 PM

Yes I mean the mortgage company told me that they have an injunction (it was a typo before). They told me over the phone and said this foreclosure business of my father's has been ongoing for 2 years and now they have an order to get their asset back (property). Yes, the property is there's but not the contents -- I was told if the contents are still inside THEIR property when they enact the injunction next month, then it all belongs to them, they can sell the property inside along with the home and don't have to give us access to it anymore. By right my father was the home owner and has passed away, they have no obligation to my brother or me :(

Yes. We have gone to probate for the estate, my older brother and I are the executors and we have the certificates saying this. Yes I read online that we are responsible for the property but again, since the mortgage has fallen behind for a long time they said they have a right to repossess their property back and have a sale to get whatever they can out of it. TY.

ScottGem · Oct 16, 2011, 04:18 PM

Well I've never heard of that. Generally, in a foreclosure an auction is held. If the lender's price is met, the buyer gets ownership and the current resident is given some time to clean out the premises. If the price isn't met, the lender takes possession. But I doubt if a lockout is legal.

I would still move as much as you can into storage as quickly as you can.

HotHoneyVintage · Oct 16, 2011, 04:26 PM

Yes, we are going to move stuff into a storage unit in the coming days. They also said if we are still on the property, the sheriff can come and tell me and my brother to leave or get arrested for trespassing :( There is no equity in the home and there is more owed on it than it is worth at this point. If it gets sold, they aren't going to get what my mother paid for it (in this economy).

ScottGem · Oct 16, 2011, 04:30 PM

Originally Posted by HotHoneyVintage

They also said if we are still on the property, the sheriff can come and tell me and my brother to leave or get arrested for trespassing :(

I think they are trying to scare you. You need to get a copy of the injunction and see exactly what it says.

Fr_Chuck · Oct 16, 2011, 05:46 PM

I agree with Scott, I think they are lying, if all of this was true, they would have served you and the estate paperwork.

Have you went to the court and seen what is filed ?

What they are telling you does not sound right, according to normal and standard foreclosure laws.

HotHoneyVintage · Oct 16, 2011, 05:52 PM

Another person online told my brother to file a "motion for an Injunctive Relief Barring Sale" with the court and get a judge to grant this. Again, we are not looking to keep the home, mortgage company can have it back, we just need a few months to get things in order that my deceased father dropped the ball and left on us. TY.

Fr_Chuck · Oct 16, 2011, 05:55 PM

Has anyone went down to the court house and looked at what is filed ?

Has anyone went down and talked in person and asked to see copies of the paper work

Has anyone even on the phone asked for paper work to be faxed to you ?

ScottGem · Oct 16, 2011, 05:56 PM

You may or may not get that. You might get it to give you time to get your father's affairs in order if the death was recent. But since you have no intention of bringing the loan up to date, you may not.

HotHoneyVintage · Oct 16, 2011, 06:18 PM

Yes his death was recent it was in August. As far as going to the court house no we have not been this all just was told to us over the phone on Friday -- no court house is open on the weekend. Plus, they didn't say they filed an injunction they said "we have an injunction order and we're going to lock up the property one month from (this past Friday) you will not be able to gain re entrance into the home and the contents will belong to us to get sold. If you're still living on the premises, unfortunately you will get charged with trespassing." This is all via my brother who talked to the mortgage company last week, hope things are more clear now.

AK lawyer · Oct 17, 2011, 06:14 AM

Originally Posted by HotHoneyVintage

Yes his death was recent it was in August. As far as going to the court house no we have not been this all just was told to us over the phone on Friday -- no court house is open on the weekend. Plus, they didn't say they filed an injunction they said "we have an injunction order and we're going to lock up the property one month from (this past Friday) you will not be able to gain re entrance into the home and the contents will belong to us to get sold. If you're still living on the premises, unfortunately you will get charged with trespassing." This is all via my brother who talked to the mortgage company last week, hope things are more clear now.

Either they were lying to your brother, or he misunderstood them.

If they in fact have such an order, that raises another couple of issues:

is your brother in fact the executor appointed by the probate court?
if so, was your brother properly served with process?

The contents will not belong to them. They have to let the duly appointed representative of the estate have them.

What you should do is go to the courthouse and ask the clerk of court to let you see the casefile. Read the order (if it exists) for yourself. Then let us know what it says.

HotHoneyVintage · Oct 17, 2011, 03:26 PM

As I said before 'yes' my brother and I are the executor's and we have the certificates stating this... we are going to a real estate lawyer this week, he was recommended by a family friend and his first meeting is free. I will check with the courts as well, then come back and let you all know. Thanks for helping, we appreciate it.