Legal Question in Wills and Trusts in Florida

State: Florida

Problem: Parent passed aware with an inverted mortgage (i.e. owes more than house is worth). Children are being sued in order that bank can foreclose on the property, which the children (heirs) have no interest. No one other than the parents signed the mortgage.

Now, the suit names all the heirs, which I guess is expected. However, section "E" of the complaint has a section for DEFICIENCY JUDGEMENT which has the children concerned.

WHEREFORE, Plaintiff, , prays:

a) This Court take jurisdiction of this cause, the subject matter and the parties hereto;

b) The Court determine the amounts due to Plaintiff from Defendants and that such

amounts be declared a lien upon the subject property;

c) The Court enter a judgment foreclosing the mortgage lien, and, upon the

Defendants' failure to pay the amounts due to Plaintiff by a date certain, that this Court order that

said real property be sold in accordance with the law and practice of this Court so that Plaintiffs

mortgage lien is satisfied;

d) The Court determine that the Plaintiffs interest is superior to the rights, title and

interests of the Defendants named herein or any other person or party claiming by or through or

under them since the filing of the Lis Pendens and that the rights, title and interests of said

Defendants be absolutely barred and foreclosed;

e) If the proceeds of the sale are insufficient to pay Plaintiffs claim, the Court grant

Plaintiff a deficiency judgment, unless any defendant who is personally liable shall have been

discharged from liability under the subject note pursuant to the provisions of the United States

Bankruptcy Code;

f) This Court retains jurisdiction of this action to make any and all further orders and

judgments as justice requires, including but not limited to, the issuance of a writ of possession.

The problem is that we dont care of they foreclose, but we dont want a deficiency judgment against us. How is that even possible when it was the parents mortgage and the children never cosigned?


Asked on 1/09/12, 10:36 am

2 Answers from Attorneys
Sanford M. Martin Sanford M. Martin, P.A.

Only those named as holders (including co-signers) of the mortgage will be liable for any deficiency judgment or any other liability related to the foreclosure. Foreclosures often

name any related party including renters, grantees of easements, and others as

part of the foreclosure process. Children might be sued as possible beneficiaries of

an estate which included the property. Regardless, the children should not be

concerned about a deficiency judgment.

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Answered on 1/09/12, 10:59 am
David Slater David P. Slater, Esq.

I would also be concerned.

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Answered on 1/09/12, 11:49 am


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