Husband Mentally Incapable To Transfer Title.
We were contacted by a wife, whose house is in forclosure. Her husband has an advanced form of disease which effected his mind, to a degree that he cannot even recognize his wife. She wants to sell the house, but was told by her lawyer, that the husband would not be able to sign Transffer of Title. Please, any suggestions in this case. Is there a way to structure this deal?
There are obviously several ways to do this. If he signs that doesn't mean that the title is no good. In fact he can be stark raving mad and title will still pass. Now, if there are kids that may want the property etc. then it might be voidable wi th the help of the attorney. I think I would get the husband to sign however possible, get her signature, and then sell to a buyer who would hold good title regardless of the husbands mental state.
The other ways probably take too long. Attorneys get paid for making things difficult, that is why I use one with my ex wife
[addsig]
I have had some elderly clients in the same unfortunate situation.
A medical power of attorney was obtained. Their medical doctor had to sign. It seemed to take a few days and was not that great of time and expense. It seemed that the title company were requiring a medical power of attorney for signing.
Also talk to an escrow officer at the title company you would want to use and see what & how the title company recommends you for.
Cheryl Lopez
I should clarify, that the wife was told to go before the Judge, for the Judge to declare her husband mentally incapable. Then the Title would transfer to her. She could not do it.... If that is the situation, I wonder if medical power of attorney could be used in this case as Charyl suggested?
Cheryl,
Your suggestion was very helpfull, do you know, in your experience if the person(s) was already declared mentally incapacitated by the courts, before medical power of attorney was obtained? What is the danger if the husband somhow is able to sign?
Thank You.
Your help would be greatly appreciated.
There is another way to do this.
Negotiate with the bank to step into their shoes. Either buy the loan or make up the back payments with an assignment of the note and an agreement to keep it current. Allow the wife to deed her interests in lieu of foreclosure-- even pay her some money. Then foreclose on the husbands interest only. This gets the husband off title but lets the wife move on with things.
to those who said about getting it signed no matter his state or getting a power of attorney. I am a notary public and those documents would need to be notarized. there should be notary public commissioned who would notarize paperwork for a clearly incompetent person. to do so could cause you to loose your commission. he is probably beyond competency and that is why it was suggested to the wife that she have the judge declare him incompetent. if she chooses not to do so (and that rightly is a mghty emotionall burden for her and the kids, if any) I'm guessing there is nothing to be done until he passes away.
Hi, commercialking.
Thanks you for your response.
Regarding:
Either buy the loan or make up the back payments with an assignment of the note and an agreement to keep it current.
Could you please clarify "assignment of the note": does this entail for us to put in a note for the amount of the back payments?
Regarding "agreement to keep it current": would this be an agreement between us and the bank or us and the homeowner?
Thank you very much.
REINATLIE --
I may have gotten which "power of attorney" confused ... if it was durable or medical.
By now you have received so many people's responses and some from out of California which laws different. Print out all responses. Also talk to your Broker or office manager to obtain their advise based on TCI poster's advise.
I would have seller (wife) and yourself go to their attorney with the print outs and obtain the seller's attorney advise.
Get going ... foreclosure clock is ticking away and more expenses get added up. Best to stop the foreclosure actions because words will get out and the lender will be contacted by buyers and then will not be negiotable to work with the seller.
Cheryl Lopez
We decided that we would try to make the loan current, and put 2nd loan in.
We would then foreclose and take deed in lieu of foreclosure from her and foreclose on the husband.
Do we put the loan in first and then payoff the 1st?
How quickly can we get this accomplished?
Also, if we get the Title from the wife, would we still have to go the regular forclosure process, NODs and NTS, our goal is to get the house, not to sell it at the auction.
Thanks in advance.
ReiNatalie.
[ Edited by reinatalie on Date 07/09/2004 ][ Edited by reinatalie on Date 07/09/2004 ]
REINTELE --
A quote from your post
"We decided that we would try to make the loan current, and put 2nd loan in.
We would then foreclose and take deed in lieu of foreclosure from her and foreclose on the husband."
I have a question ... how were you planning on placing a new second, have wife sign off for deed in lieu of foreclosure, and then floreclose on the husband ... that is medically incapable ?
Does not the wife and husband both own the property and are on title?
I thought you were real estate agents getting a listing. Sounds more like investors looking for a good deal.
Cheryl Lopez
Cheryl,
I am confused, where did you get an idea that we are real estate agents looking for listing?
And if we are investors looking for a deal, please look around this board...
I have a question:
How have you decided to place a new second, have wife sign off for deed in lieu of foreclosure, and then floreclose on the husband.
I truly would like to learn from this posting. Please help me to understand this procedure. Probably other posters would like to know too.
Thank you for your response.
Cheryl Lopez[ Edited by cheryllopez on Date 07/09/2004 ]