Holland, MI asked in Real Estate Law and Civil Litigation for Michigan

Q: My mother & I are both on mortgage. She's principal borrower. She passed. Can/Do I assume the mortgage? Please help! Ken

Mortgage was drawn from her account because she had good credit. But, I have been paying mortgage through her account by check. I insure the home as well. My credit is much better now. It looks as though the mortgage company may just run my credit as to not upset the mortgage. Is this common?

I have been in the house for 7 years and have done substantial improvements interior and exterior which included a home improvement loan that I just began paying.

Since mom's passing, sister wants to take the house from me. It's my house, right? I do not want to loose my home. It's NOT part of the trust. Refinance/purchase was solely between mom and I. I have an 18 page mortgage signed by my mother and I. I need to contact the mortgage company but wanted some information first. What do I do?

Ken K.

2 Lawyer Answers
Brent T. Geers
Brent T. Geers
  • Grand Rapids, MI
  • Licensed in Michigan

A: Being on the mortgage and being on a deed are two different things. If your name is on the deed, then I think you can be reasonably assured of not losing the home to your sister.

As to the mortgage itself, if your name is already on the mortgage, I'm not sure there is anything you need to do other than keep paying it at this point. You could of course refinance it.

Anthony M. Avery agrees with this answer

Peter J. Weinman
Peter J. Weinman pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›

A: I do not necessarily disagree with attorney Geers, who is licensed in your state (where I am not), but your question has two aspects. I think (1) there's a distinction between being a borrower (on the note) and being an owner (and necessarily on the mortgage), and (2) whether your sister has any interest in the house will depend upon how you held title with your mom.

1. If you were not a borrower at the closing and you are on the deed, then you are on the mortgage. (I also note that you called your mom the "principal" borrower, so it's possible you were also a borrower and may have also signed the note). You may not be on the note since you said your mom's credit was used - she may have been the only borrower. A note is like an "I O U" and evidences the personal obligation to repay the loan. The mortgage is separate from the note and it pledges the house as collateral if the borrower doesn't fulfill the obligations under the note. Since your house is being used as collateral for your mom's loan (which is why you must have signed the mortgage and not the note), as long as you continue to pay the loan without interruption, the lender has no reason (or right to) foreclose, and your house (the collateral) should remain yours.

2. Without going into a long discussion about the different ways to hold title in your state (and assuming it's not in a trust, as you stated), depending on how you and your mom held title, suffice it to say that you may have become the sole owner by operation of law or you may have become "partners" with your mom's estate/heirs. This could mean, for the sake of argument (assuming your mom had no will and your sister is your only sibling), that you and your sister share your mom's half and you own the other half - which would make you a 75% owner and your sister a 25% owner.

If your sister inherited an interest in the house, she could bring an action in Partition and force a sale (unless you can buy her out). Without seeing any of the documents and not knowing if your mom left a will, nobody here can really say for sure. You need to contact an attorney in your area to explore this further IN PERSON. Especially since your sister has expressed a desire to take your home. Start your search here: https://www.justia.com/lawyers

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