Q: Can a lender foreclose a mortgage against the "estate" without having a person associated with the estate.
Borrower died 9 years ago. I own the property. I foreclosed the HOA lien. Took subject to the mortgage. Now mortgage company foreclosing but no estate has ever been raised and no personal representative named. They advertised for constructive service but they then filed an affidavit stating no family resides in Florida. Doesn't the bank still need personal jurisdiction? even if in rem?
A: As you stated, you took the property to the first mortgage. Holder of the first mortgage can foreclose upon the property. Most often, mortgage holders will open an estate. To get personal service by publication, they need to file an affidavit of good faith efforts to serve a party, which may not exist if there is no estate open. You are right, the action is in rem. They want to get personal service by publication. The better procedure may be to open an estate as an interested party. However, may be more work and costly.
A:
As others have stated, the answer is yes.
The lender has some options on how to proceed to foreclosure on the home. You acquired the home through a foreclosure sale by the HOA. The mortgage still outstanding may or may not have priority over the HOA lien. An experienced attorney can research this and tell you.
If the lender has a proper lien then they can foreclose out your interest in the home. There may be opportunities to negotiate with that lender and an attorney can assist you in that regard.
A: There is not enough information to fully answer your question. The encumbrance of the Mortgage is a lien on the property, regardless of the ownership. It's not clear how you obtained ownership, but the fact that the owner and the borrower don't match doesn't make the Mortgage go away. You will want to consult with a Real Estate attorney to review the Complaint to determine if there are any defects or inconsistencies in the pleadings and respond to the Court appropriately in the time prescribed. Best of Luck! Jennifer
A: As pointed out by my colleagues. You took the title via an HOA foreclosure sale and subject to the first mortgage. Under current Florida Law your ability to litigate against and defend the lawsuit is severely limited. You really need to hire an experienced foreclosure defense attorney to handle this matter.
A: Personal jurisdiction is obtained when serving/publishing the heirs. Personal service is not required in rem, only in personam if suing for the money debt. You would need to hire an attorney as regardless, your defenses as the non-borrower are extremely limited.
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