Real Estate

Q: May I hire a lawyer to remove my ex-husband from the mortgage on my house?

Mitchell’s Answer: In order to remove your ex-husband from the mortgage you must record a new deed transferring title and the lender will require a modification agreement. If your credit is poor, the lender may not be willing to do so.


Q: What if a lien holder is not named as a defendant in a foreclosure action?

Mitchell’s Answer: A lien holder that is not served with notice of the foreclosure will not be foreclosed of its lien interest. Any sale or transfer of the property will be subject to those liens.


Q: A judgement was entered against me several years ago and I am now selling my house. Will I have to satisfy the judgment before closing?

Mitchell’s Answer: If the judgment was docketed with the county clerk where the house is located it will act as a lien and if not satisfied prior to closing, the proceeds of the sale may be used to satisfy the judgment. If the judgment is not a lien, it is possible that the lender or the title company may insist upon satisfaction at or prior to closing. Your lawyer may be able to help you settle for less than the full balance due if the creditor’s lawyer is contacted in advance of the closing.


Q: My mother has a will that leaves her house to her three children. I am currently living in the house with her and for Medicaid purposes it was suggested she transfer the house to me with a Life Estate. Who will inherit the house when my mom passes away?

Mitchell’s Answer: By creating a life estate in a new deed the house will be removed from your mother’s estate and will be your property even while she is alive. The will won’t have any effect on the ownership of the house which would remain in your name alone when your mother dies.


Q: I appeared in court yesterday on my motion to dismiss a foreclosure action against me. The bank’s attorney did not show up. My motion was granted and the case was dismissed. Does this mean I don’t have to pay my mortgage anymore?

Mitchell’s Answer: It does not mean that at all. Your obligation to pay the lender is based upon the note. The mortgage provides for consequences in lieu of monetary damages if you don’t pay. Just because the foreclosure case was dismissed does NOT mean that you no longer have to pay or even that that the mortgage lien on your property has been extinguished.


Q: A Notice of Pendency was filed against my house but I have not been served with a Complaint in over 30 days. Is the Lis Pendens still valid?

Mitchell’s Answer: The answer is, “maybe.” The statute requires that an ACTION BE COMMENCED, not that you be served, within 30 days. The commencement of an action occurs UPON FILING. Thereafter you must be served within 120 days. This is a very serious issue and you should consult with a Real Estate attorney immediately.


Q: I will not be available to attend the real estate closing for the house I am buying. The bank will increase my interest rate if the closing is adjourned until I am available. Can my lawyer sign all the papers for me?

Mitchell’s Answer: In fact, anyone may sign for you via a power of attorney. However, both the lender and the title company will need to approve this in advance to avoid the delay that you can’t afford. There is much signing involved, so you may be asked to pay for this time in addition to the cost for the preparation of the power of attorney.