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Tenants by the entirety in Michigan

Discussion in 'Foreclosure, Repossession, Auctions, Short Sales' started by Donamy, Nov 3, 2013.

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  1. Donamy

    Donamy Law Topic Starter New Member

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    We bought the home in 1999 and 2005 I was quick claimed onto the deed. In 2007 my wife refinanced the home on her own. I never went to the closing and never signed anything.
    She passed in May of 2012. She had the Steven King foundation set up to pay our house payment till October.
    In that time I tried talking to the bank to work something out but they would not talk to me as I'm not on the mortgage.
    The house is $250,000 upside down and I can qualify for the amount owed, $580,000. The are going to foreclose next month. I thought under tenants by the entirety with rights of survivorship I own 100% of the house upon her death and creditors could not force the sale of the property to collect on a debt. One lawyer say I own the home free and clear and one says its a long shot.
     
  2. army judge

    army judge Super Moderator

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    It's a one, big crap shoot.
    Only a court of competent jurisdiction can rule.
    No one need listen to you.
    If you wish to assert a right, privilege, or an affirmative defense; off to the courthouse you must go, file a motion, file a couple motions, or hire a lawyer to file the motions!!!

    In all reality, a quit claim deed is unwarranted and very unreliable.
    On top of that, you lose nothing if the home s foreclosed.
    You have nothing invested via the alleged quit claim deed.
    Finally, her debt wasn't extinguished upon her passing.
    The smarter ploy was for her was to establish a trust.
    It might not have worked either, but it's much more complicated to pierce.
    Alas, that never happened.
     
    Last edited: Nov 3, 2013
  3. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Army judge hit the nail on the head - the issue is that there is still money owed on the home. Your rights in the home are subject to the bank's interest in the home. A quitclaim deed means that you own whatever the person deeding the property to you owns. But discussing deeds (such as a bargain and sale deed) isn't really the issue. The point is that you obviously can't be deeded a home that has a $580,000 debt attached and somehow wipe that away as if it doesn't exist simply by the passing of the person who took out the mortgage and her transfer of her interest in the property to you.

    Have you spoken to the bank about avoiding a forced sale? I don't see why they wouldn't be amenable if they have someone willing to pay and save them a tremendous amount of trouble. I'm not even sure I understand the issue. There is no way you own the home outright and if a lawyer told you that you do, you may want to ask again to make sure you understood what he or she was saying.
     
  4. Donamy

    Donamy Law Topic Starter New Member

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    Is quick claim and quit claim deed the same thing?

    I thought that at the most they can only come after my late wife's interest in the property.
    I am going to be talking to that lawyer soon to the this full thought.
    So the tenants by the entirety means nothing?
     
  5. army judge

    army judge Super Moderator

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    The designation of the type of ownership isn't at issue.

    The property has a lien against it.

    You were quit claimed, but all that gave you was the ownership (or a share) of the person quit claiming you.

    Your wife didn't own the property, she simply was paying off her mortgage.

    You acquired her interest, an upside ownership worth nothing.....

    Quit claim is a mechanism to transfer (or share) ownership to/with another party.

    Quick claim is an improper use of the words Quit Claim.


    http://legal-dictionary.thefreedictionary.com/Quick+claim+deed


    http://qna.mortgagenewsdaily.com/questions/what-is-a-quick-claim-deed



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    Last edited: Nov 3, 2013
  6. Donamy

    Donamy Law Topic Starter New Member

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    We are both on the deed as of 2005. She took the loan and the bank knew we were married but had me sign nothing. Similar case in Pennsylvania where the woman was on the loan but then got taken off of the loan and she got the house free and clear
     
  7. Donamy

    Donamy Law Topic Starter New Member

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    Doesn't Tenants by the entirety state that creditors can't put a lean on the property. The loan was taken on after the date of quite claim of the deed. The lean should of never been on the property.
     
  8. army judge

    army judge Super Moderator

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    I've given you the best information I can.

    The place to make YOUR argument is before a judge in Michigan.

    But, I'd seriously rethink the whole idea.

    Your argument is not only flawed, but potentially could be seen as perpetrating or conspiring to commit fraud.

    A person can only GIFT you (or in this case QUIT CLAIM DEED you) their LEGAL interest in a property.

    Unfortunately, your wife owned nothing, other than a mortgage.

    Her equity was small, or had never accrued.

    As far as a wife's ability to contract, that's long been established.

    Women (a wife) aren't required to seek their husband's approval to obtain a loan.

    Your wife didn't need your permission to undertake the mortgage.

    Nor, would you have needed hers.

    I'm not sure why YOU think a quit claim deed (some archaic form of land bequeath or entitlement) is an escape valve for you to inherit a home, encumbered by a huge mortgage, (the lender takes NOTHING but a piece of paper), just because you were allegedly given a "quit claim" deed?

    I'm sure your argument would also puzzle a court.

    But, file some motions, and have at it, sir.

    Quit claim deeds are notorious in their unreliability.

    That's why they often get challenged, as a well as the circumstances under which the quit claim was given.

    Good luck, but I'd be very careful in fostering your premise beyond the "what if" stage of personal thinking.

    As a legal argument, it holds no weight.

    What you're proposing has long been addressed in the common law, and in various state statutes.

    A Tenancy by the Entirety permits spouses to own property as a single legal entity.
    Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety.

    The last sentence above, notwithstanding, a lien-holder is more than a mere creditor.

    A lienholder (bank, mortgage holder) has the ability to cloud the title/deed to the property.

    Don't confuse the holder of the note with an unsecured creditor.

    The property was under cloud of a lien when she obtained the mortgage.

    Hence, your argument is defective on its face, and if you aren't careful, you could reap some unintended, negative consequences of such a stance.

    A very important difference between a tenancy by the entirety, and a joint tenancy (tenancy in common) is that a tenant by the entirety may not sell or give away his interest in the property without the consent of the other tenant.

    Upon the death of one of the spouses, the deceased spouse's interest in the property devolves to the surviving spouse, and not to other heirs of the deceased spouse.

    This is called the right of survivor-ship.

    The above principle has NOTHING to do with allowing one to avoid a debt.

    A secured debt unpaid, will forever remain a secured debt, unpaid.

    It isn't extinguished upon the passing of the debtor, or in this case, your spouse.
     
    Last edited: Nov 3, 2013
    Betty3 likes this.
  9. Donamy

    Donamy Law Topic Starter New Member

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    Got it, as I look around on a lot of law sites there are a lot of different opinions on this. so confusing.
     
  10. Donamy

    Donamy Law Topic Starter New Member

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    It took over a year to get them to talk to us, us being my lawyer and I.
     
  11. Donamy

    Donamy Law Topic Starter New Member

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    Thanks for all the good information from everyone.
     
  12. Betty3

    Betty3 Super Moderator

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    Donamy, it would be nice if it worked that way (the way you thought) but it's not reasonable/possible.
     
  13. disagreeable

    disagreeable Well-Known Member

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    Interesting that the SKF would get involved in a personal activity they expressly disavow in a state they do not accept solicitation from.
     
  14. army judge

    army judge Super Moderator

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    As one traverses this life, interesting things are revealed with great regularity, Big D.
     
  15. disagreeable

    disagreeable Well-Known Member

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    AJ, Is everything okay in your world? You have become very cerebral and harmonized of late.
     
  16. army judge

    army judge Super Moderator

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    Big D, we're all given a death sentence at birth, my friend.

    None of us are going to get out of this mess alive!!!! LOL

    No sir, I'm not terminal yet, I'm just much calmer these days.

    As I often say to my lovely wife, "living the dream, sweetheart, just living the dream".
     
  17. disagreeable

    disagreeable Well-Known Member

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    LOL. I was just worried about you pard.
     
  18. Betty3

    Betty3 Super Moderator

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    Me too, disagreeable. I'm glad you asked him. I was concerned due to some of his posts such as being old & ready to die ..........

    Glad everything is ok AJ.
     

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