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Questions Answered by James Clifton
1 Answer | Asked in Foreclosure, Land Use & Zoning and Real Estate Law for Georgia on
Q: I have a property in Georgia that went into bank foreclosure, it sold for significantly more than was owed.

I understand that the surplus is to go to the title holder but I don't understand how to start that process or how to make the motion to have the trustee send the funds to me.

James Clifton
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James Clifton
answered on Jun 1, 2023

The attorney who handled the foreclosure for the bank receives the money on behalf of the bank at the foreclosure sale. Based on the condition of the title, the foreclosure attorney will either release the funds to the former titleholder if there are no other claimants or turn the funds over to the... Read more »

2 Answers | Asked in Real Estate Law for Florida on
Q: Looking to purchase a condo in FL with seller financing. He wants to do a land contract. Who’s name will the title be in

How does this get filed with the state? I want to make sure I’m protected. The interior needs work and I don’t want to put the effort and money in if this isn’t legitimate. We have agreed on terms, what do I need to do to make sure I’m covered?

James Clifton
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James Clifton
answered on May 29, 2023

It is generally unadvisable to purchase property any other way than with a traditional deed and mortgage. Many times people who don't fully understand the implications of financing the sale of their own property think that there are forms like a land contract that somehow protect them more... Read more »

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1 Answer | Asked in Real Estate Law and Probate for Florida on
Q: Is a mortgage with a beneficiaries' property automatically assumed by beneficiary

AS PR, do I have to get assignments to distribute commercial property with mortgages, or does the mortgage go with property automatically?

James Clifton
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James Clifton
answered on May 22, 2023

If the mortgage is in the name of the deceased, it is actually a debt of the estate that should be paid by the estate. If the debt cannot be paid by the estate the property should be sold or if a beneficiary chooses to receive the property subject to the mortgage, the beneficiary should be required... Read more »

1 Answer | Asked in Divorce, Foreclosure and Family Law for Florida on
Q: Can a Judge put a stay on a foreclosure of your homestead property while going through Divorce?

Husband filed a DV Injunction and a Judge gave him temporary possession of the home and put me on the streets and wasn't making payments on the house or the home equity line of credit. I dont know what he told the post office but they returned my mail and anything with both names on it, they... Read more »

James Clifton
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James Clifton
answered on May 22, 2023

The judge in the divorce case cannot put a stay on the foreclosure, generally. However, the judge can order one or both spouses to make payments. If either spouse fails to make payment, the judge can hold that party in contemp of court.

To stop the foreclosure, you need an attorney to...
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2 Answers | Asked in Real Estate Law and Elder Law for Florida on
Q: My daughter was put on my homestead deed. I paid for home and propertry in full. She is now threatening to take it fro

from me. I put her on deed and now she is not adhering to our agreement. She says she can do whatever she wants, it's hers. Help.

James Clifton
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James Clifton
answered on May 19, 2023

I just wanted to add a couple of thoughts in addition to the above answer. If your agreement with your daughter is in writing and she owns the property solely in her name, you may have enforceable rights that would prevent her from excluding you from the property. If it is an oral agreement, your... Read more »

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1 Answer | Asked in Real Estate Law and Landlord - Tenant for Florida on
Q: Would the condo rider overrule the contract? Due to the contract wording "For any reason" am I entitled to the deposit?

I was under contract for the sale of my condo and in the contract that is signed, it states in section 20 under the addendum and additional terms line 5 states that if buyers failed to close for any reason they would forfeit the $30,000. deposit of earnest escrow which was written by their agent.... Read more »

James Clifton
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James Clifton
answered on May 18, 2023

Almost every rider to a contract has the following language, "Where this Rider is in conflict

with the terms of the Agreement, the terms contained in this Rider will govern." This means that if the condo rider has a contingency that gives the buyer the option to cancel the...
Read more »

1 Answer | Asked in Landlord - Tenant, Divorce and Family Law for Georgia on
Q: Which takes presidence the ownership, or the rental agreement

Property is jointly owned, tenneants in common. Mortgage is an individual loan, husband only. Husband and wife are divorcing. Prior to being evicted (she sat his remaining property outside) a rental agreement was signed.

As joint owner, Is she within her rights to change the locks? Or... Read more »

James Clifton
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James Clifton
answered on May 18, 2023

Each owner is entitled to equal use and possession of the property. There can be no rental to someone who is also an owner because their ownership interest is of a higher priority. If the divorce decree awarded the property to the wife, then the ex-husband could be a renter. Under that... Read more »

1 Answer | Asked in Real Estate Law for Georgia on
Q: I had a lien on my house for $92000. Now the lien holder lost the paper work and want release the hold
James Clifton
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James Clifton
answered on May 16, 2023

Even if the paperwork is lost, if the lien has been paid, it can be released by an affidavit prepared in compliance with OCGA 9-13-80. If the lien holder does not release the lien within 60 days, you may be entitled to damages up to $500 and attorney's fees. If you still owe money on the lien,... Read more »

1 Answer | Asked in Foreclosure for Georgia on
Q: A man stopped by my house and told me he bought it in foreclosure sale. I haven't received any notice of this sale.

Another man send me a summons. Is this legal?

James Clifton
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James Clifton
answered on May 15, 2023

You should have received notice of the non-judicial foreclosure by certified mail at least 30 days prior to the sale being conducted. The notice is also published in the newspaper. You can typically check for the foreclosure notice online to see if your house was up for auction. The summons would... Read more »

2 Answers | Asked in Elder Law, Probate and Estate Planning for Georgia on
Q: How do I prove an executor is stealing from the estate?

I requested an accounting of my aunts estate from exec. I got a vague list of transactions and no inventory of the estate. Executor failed to provide inventory or estate value. Executor diverted estate funds to offshore acct in Canada Also withdrew estate funds 300k for 7 days stating that bank... Read more »

James Clifton
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James Clifton
answered on May 14, 2023

You will need to file a formal Petition for Inventory and Accounting. If you are dissatisfied with what is produced, you can challenge the accuracy of the inventory and accounting provided in the pending probate case. You can also request that a new executor be appointed if there is evidence that... Read more »

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1 Answer | Asked in Landlord - Tenant for Georgia on
Q: What happens if a landlord lost in court and she owes me 15,000 judgment. But she says I owe her for past rent.

She refilled for a dispossessory. She didn’t give a demand to pay or quit and waited a month to refile. Does the land have to give me a pay or quit demand letter before filing eviction?

James Clifton
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James Clifton
answered on May 8, 2023

Even though you won the first time, you cannot use the judgment to offset rent due in the future. You have to continue to pay rent. If you don't pay rent, the landlord will succeed in the future eviction. Regarding the judgment, you can file a lien against the property and garnish a bank... Read more »

1 Answer | Asked in Probate for Georgia on
Q: What can I do if the executor of the will has turned off my power, I have kids!! He hasn't probate yet. Idk what to do.
James Clifton
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James Clifton
answered on May 8, 2023

Until the will is filed, there is no executor. If there is no will, the heir of the deceased will need to file for administration of the estate. If you are a tenant, the estate has the same responsibilities as a landlord and cannot wilfully disrupt your utilities. If you were responsible for paying... Read more »

1 Answer | Asked in Real Estate Law for Georgia on
Q: Does ga have a homestead law.

Can I sell a home without my wife’s consent. We both are on the deed .

James Clifton
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James Clifton
answered on May 8, 2023

If you are both on the deed, then you each own a one-half undivided interest in the whole property. You could only sell your one-half interest, which very few people would want to buy. If your wife doesn't agree to sell, you could force the sale through a partition action. To answer the first... Read more »

1 Answer | Asked in Estate Planning, Foreclosure, Real Estate Law and Probate for Florida on
Q: My dad's estate is going through probate without a will in Florida. Can siblings live in the house until it sells?

My sister's were living in the condo with my dad until he died. Are any of all of us allowed to reside here until it sells?

James Clifton
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James Clifton
answered on May 4, 2023

If the siblings are in agreement, then any one of them may stay in the property pending resolution of the estate. If there is disagreement, any sibling residing in the property to the exclusion of the others may be liable to the estate for a reasonable amount of rent. The Florida probate attorney... Read more »

2 Answers | Asked in Real Estate Law, Banking and Probate for Georgia on
Q: What legal obligation would a widow have when mortgage was aquirred before marriage?

Legal way to transfer land ownership after husband dies without a will in GA.

Mortgage before marriage. Land aquirred during the marriage.

James Clifton
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James Clifton
answered on Apr 29, 2023

If the husband died without a will, the wife would need to file for administration of the deceased husband's estate. If there are children from the marriage or if the husband had children from a previous marriage, the wife would share in the inheritance of the land with the children. Any... Read more »

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2 Answers | Asked in Estate Planning, Real Estate Law, Landlord - Tenant and Probate for Florida on
Q: My brother inherited my mom's house 4 years ago and basically abandoned it. I live in the home and now he wants it

This is in Florida. I have lived here more than 10 years and he had my mom sign a quit claim deed 2 weeks before she died, however she was heavily medicated and in hospice. Last week he told me he wants my kids and I to move so he and his new family can have the house. He has never invested a... Read more »

James Clifton
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James Clifton
answered on Apr 29, 2023

First, you can challenge the quitclaim deed from your mother to your brother under the legal theory that your mother was of unsound mind at the time of the execution of the deed. If you are successful, the property would then pass according to your mother's will if she had one or to her heirs... Read more »

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1 Answer | Asked in Estate Planning and Probate for Georgia on
Q: My husband's cousin died by suicide. She lived in Atlanta,, GA. Her beneficiaries on her life insurance policy were her

My husband's cousin died by suicide. She lived in Atlanta,, GA. Her beneficiaries on her life insurance policy were her mom and his mom. Both are deceased. Her mom died a little over a year ago. Does my husband have any claim to the policy because he's his mother heir? Thank you.

James Clifton
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James Clifton
answered on Apr 28, 2023

If the cousin's mother and your husband's mother both died prior to the cousin's death, then the insurance would pass to the cousin's estate either by will or to her heirs if she had no will. If the cousin's mom or your husband's mom were alive at the time of the... Read more »

2 Answers | Asked in Estate Planning and Probate for Florida on
Q: Dad died with a will referencing a trust document. Found several drafts on his computer but nothing signed.

The drafts are AB Living Trust. Nothing is titled in the trust name, however a large investment account and a million dollar home are titled in an LLC in which he and Mom are the only members. They have not conducted any true business from that LLC. The drafts say that all joint and separately... Read more »

James Clifton
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James Clifton
answered on Apr 24, 2023

The will may create a testamentary trust by virtue of the language contained in it. It would be best to have an attorney review the will before moving forward. Consultations are free. The trust drafts will not be enforceable unless you can find a copy signed by your father placing the property... Read more »

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1 Answer | Asked in Real Estate Law for Georgia on
Q: In GA, does an Attorney need to be present in the signing of a HELOC that is produced by an online lender?
James Clifton
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James Clifton
answered on Apr 24, 2023

Yes. The only exception is if an employee of the bank, not an independent contractor who is a notary that comes to your house, explains the documents and notarizes them in your presence. Closings in Georgia can no longer be closed by Zoom, Skype, etc. either. You can contact the Georgia Attorney... Read more »

1 Answer | Asked in Probate for Georgia on
Q: My mother just passed and did not want to be cremated.my Uncle made the decision to cremate and there is enough insuranc

Enough insurance to cover a burial and a funeral but won't change their minds even though I told them her wishes what do I do to fight it

James Clifton
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James Clifton
answered on Apr 23, 2023

If your mother did not leave a will or medical directive stating her final wishes, it would have to be litigated if there was disagreement among the family. You would need to file an injunction to prevent your uncle from completing the cremation and then have the probate court make a final... Read more »

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