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Not making house payment

Discussion in 'Buying & Selling a Home or Residence' started by Sharon Hansen, Feb 6, 2019.

  1. Sharon Hansen

    Sharon Hansen Law Topic Starter New Member

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    Jurisdiction:
    Wisconsin
    In 2005, my dad passed away. My mother had a contract drawn up for my brother and his wife to sign to purchase her house. My mom, (not being in her right mind, in my opinion due to being depressed over losing her husband), signed the home over to my brother before they signed the contract. To this day, they still have not signed the contract. They took ownership of the house and have not paid her anything.
    Is there anything she can do?
     
    Last edited: Feb 6, 2019
  2. adjusterjack

    adjusterjack Super Moderator

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    Sure.

    She can consult an attorney and review her options.
     
  3. Sharon Hansen

    Sharon Hansen Law Topic Starter New Member

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    Thanks for answering but I’m on here in hopes of hearing from an attorney with advice. Appreciate it however.
     
  4. Tax Counsel

    Tax Counsel Well-Known Member

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    So your mother transferred the house in 2005 and never got the contract signed and has never in all that time tried to enforce any verbal contract that they may have had? She has several problems here then. The first is that the statute of limitations (SOL) to sue on the contract has elapsed. That would give your brother and sister-in-law a good defense to the lawsuit unless your mother can come up with a good argument for tolling of the SOL.

    The second is that the lack of a signed written contract is a problem. The statute of frauds, which pretty much every state has enacted, requires a contract signed by the other party in the case of real estate transfers. While often there is an exception to this rule for full or part performance of the contract by one party (and here your mother fully performed her part by transferring the home to them) she would still have to prove there was a contract, and in this case that's difficult because a transfer of property from a mother to child can easily be seen to be a gift.

    Your mother made a mistake transferring the property to them without getting a signed contract and mortgage in place to secure the loan she was effectively making to them. She also made a mistake in waiting so long to do anything about this. It may be that those mistakes will prevent her now from successfully suing them over this. But the only way she'll know for sure is to see a civil litigation attorney in the state where the property is located for advice.
     
  5. Sharon Hansen

    Sharon Hansen Law Topic Starter New Member

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  6. zddoodah

    zddoodah Well-Known Member

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    I'm sure she can do lots of things, but you presumably know her abilities better than she does.

    I'm not sure why this is coming up 14 years after the fact, but it sounds like your mother contemplated selling her home to your brother and his wife but decided, instead, to gift it to them. Nothing in your post suggests that your brother and his wife acted improperly or any other basis to undo that after nearly a decade and a half. Of course, I recognize that your short post may not include all relevant facts, but we can only go on what you told us.
     
  7. Sharon Hansen

    Sharon Hansen Law Topic Starter New Member

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    She just moved in with my sister. My sister found the contract that my brother and his wife never signed. My mom said she was upset because they never paid her for the house and honestly, she was probably always afraid to bring it up to him. If we can get him to sign the contract dated 2007, is it still binding?
     
  8. zddoodah

    zddoodah Well-Known Member

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    It would be incredibly foolish for anyone here to opine about the validity of a written contract without reading the contract.
     
  9. Sharon Hansen

    Sharon Hansen Law Topic Starter New Member

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    Thanks everyone. Guess he’s just going to get a free house. Nothing can be done here.
    Appreciate the help.
     
  10. army judge

    army judge Super Moderator

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    You should take mother and all the documents attendant to the house transaction and visit with at least two real estate attorneys.

    The initial visit won't normally cost you anything more than your precious time.
     
    Sharon Hansen likes this.
  11. Richard Marvel

    Richard Marvel New Member

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    This is a mental capacity issue. You would have to claim exploitation of an elderly person, or try and undue the transaction based on your mothers mental capacity. You should contact a Wisconsin attorney immediately. Any evidence that your mother was "not being in her right mind" will be significant. Good luck.
     
  12. zddoodah

    zddoodah Well-Known Member

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    While I virtually never try to dissuade folks from consulting with an attorney (and this situation is no exception), it's worth pointing out that there's a world of difference between being distraught about the death of one's spouse (which is all the original post says) and lacking the necessary mental capacity to execute a deed.

    It's also worth pointing out that the OP never said how old his/her mother was at the time all of this went down. Not that any other state's laws are relevant, but my state's "elder abuse" laws only apply to persons who are 65 and older.

    Finally, there is a massive statute of limitations issue here.
     

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