Legal Question in Wills and Trusts in Florida

This is for a Florida attorney familiar with foreclosures and probate. My mother, whom I had no relationship with (estranged) passed away with no job, a negative balance in her bank account and behind on a mortgage on a house with no equity. Nobody bothered to go through formal probate so as to document that the estate is completely insolvent and just assumed the bank would take the house in due process.

Now we (named surviving children and unknown heirs) are served a summons by the bank asking for foreclosure and right to pursue a deficiency claim. I know that heirs cannot be held personally liable and that the only claim can be against the estate. However, there is no legal documentation (probate) to present to the court and ask for dismissal. It just seems a waste of money and time to go through a formal probate just to clear this case. What are the recommended next steps?

I would like to think that there is some room for negotiation with the bank to present them with some documentation that there really is no money in the estate (and hence a waste of their money to later seek deficiency). Perhaps we simply ask that they put in writing they will not seek deficiency claim if we agree to not challenge the foreclosure. However, there are also liens on the house. Once from the city for taking care of the lawn and am told there may be tax liens on the house also (although did not personally check this). So there are some longer term concerns about other potential legal messes.

Would really appreciate some suggestions on what to do next and what we should be looking for in terms of legal representation in this.


Asked on 6/08/16, 9:27 pm

2 Answers from Attorneys
Ronald Jones Ronald A. Jones, PA

Without seeing the documentation I cant' give you specific legal advice; but as a general rule heirs are not personally liable for either deficiency judgment or any outstanding liens; unless one of the heirs agreed to pay the loan or mortgage or such. Frequently the foreclosure complaints are rather confusingly drafted; they'll ask for deficiency judgment but it's not immediately apparent whether they are asking for one against the estate or against the heirs; it takes a very close reading of the complaint to figure out what they're asking for. There may also be a problem in their asking for a deficiency judgment against the estate without an estate being open; this gets complicated but as a general rule any 'money' claims against an estate require the opening of an estate and the filing of a claim in the estate proceeding; as a creditor the bank could petition to open an estate but in my experience they very rarely do so.

I would find either a probate, or probably a real estate attorney, to review the paperwork; it might cost you a bit of money for a consultation but the lawyer should be able to give you definitive answers.

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Answered on 6/09/16, 5:43 am
Barry Stein De Cardenas, Freixas, Stein & Zachary

File a response in the foreclosure case and state what you wrote, heirs only not signators on the loan and cannot be responsible for deficiency. Assuming all you say is accurate, than your issues with the deficiency are done. I agree it would be better if you had all your paperwork reviewed by an attorney.

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Answered on 6/10/16, 3:27 pm


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