by civilwarbride » Tue Jul 17, 2012 03:31 am
Okay so here is the situation...Dec 11, 2010 we had a house fire that destroyed the basement and displaced us from our home. It is now 18 months later and we have still not started restoration on the home because we cannot get the mortgage holder to sign the check from the insurance company. They will not sign the check for payment to Servpro for the work they have done as well. The problem is we bought the home through a third party(New line Development) "owner financing" because we lost a house in the housing fall to foreclosure. We could not get a house the "standard way" of financing. The group that we bought the house from was the 2nd lienholder on the property and they foreclosed on the people who lived there before us, the Smiths. GMAC was the primary lienholder with New line development as the 2nd. So the SMith's are no longer in the picture and have not been in the home for over 3 years, because we have owned the home for 3 years, been making all the mortgage payments on time, etc. We have title in our name and GMAC will not sign the check for us to start repairs, because they show the loan still listed in the Smith's name. We just received a letter from GMAC to the Smith's that the loan was not a transferrable loan and if the loan is not paid off immediately or title transferred back to the Smith's that they (GMAC) will start foreclosure proceedings. Can you shed any light on how we can get around the check needing to be made to GMAC as well as us? We are going to lose our house that we have been paying on for the last 3 years due to a policy! I need help and I do not know who to go to that will listen to my story and not try to put me into a box that they can check off or just be a paper in someone's inbox on their desk. Please offer some advice on why the regulation is the way it is and how do I petition someone to make an exemption.
Posted: Tue Jul 17, 2012 04:38 am Post Subject:
I was confused about 1/4 the way in but....
You say the title is in your name. If their was a lien on the property prior to you taking ownership then that lien would either need to have been satisfied prior to the owner being changed or the lien holder would have needed to allow the name on the title to be changed. If the lien holder allowed the name to be changed, why would then have a loan to the person no longer on the title? That seems to be the start of the problem. You are not posting some info regarding this.
I really think your name is not on the title or the title was changed incorrectly/illegally. Sounds to me like GMAC never knew you were taking over ownership of the home and that you have probably been paying the Smiths loan with GMAC (which would make sense if you could not get a loan as you mentioned).
My recommendation is that you hire a real estate attorney to handle this matter for you.
Your situation has nothing to do with insurance.
Posted: Tue Jul 17, 2012 12:35 pm Post Subject:
It is now 18 months later and we have still not started restoration on the home because we cannot get the mortgage holder to sign the check from the insurance company
18 months? You have waited 18 months to ask this question? Depending on the state in which you live, you might have lost your right to sue anyone if the statute of limitations in your state is only 12 months. You didn't have any idea there was a problem 17 months ago when GMAC would not release the insurance claim proceeds? I don't think I'm as confused as tcope was.
we have owned the home for 3 years, been making all the mortgage payments on time, etc. We have title in our name
Other than making the payments on time, none of the rest of this statement is likely to be true. You were probably NEVER on title, and GMAC had no knowledge of the transaction between you and "the Smiths" through New Line Development. But if this New Line Development outfit gave you documents that made it appear as though you had title, they may have committed real estate fraud, and you are the victim. I don't believe you've ever "owned" anything related to the property you've been making payments on.
Again, I can't imagine that you have let 18 months go by on this situation. Where/how have you been living? Paying rent to live someplace and paying on a mortgage that isn't even yours? You are so screwed up here. Paying the same amount of money to a hooker would at least have put a smile on your face.
It appears to me that what you did was obtain an unauthorized loan assumption (i.e., there was NO ASSUMPTION AT ALL). As a result, you may discover that you don't even have proper insurable interest needed to obtain insurance and might not be entitled to the insurance claim at all, which, as tcope said, really does have nothing to do with insurance. It's a contract law matter.
The original mortgage loan contract probably DOES give GMAC the right to demand acceleration of the loan -- but why have they waited all this time to do anything about it? That could be a real problem on their part, too. It could create something known as an estoppel in your favor, because once they received the claim check from the insurance company sometime in early 2011 (or late 2010), they would have known of the problem created by "the Smiths".
You need to hire an attorney highly experienced in real estate law ASAP to sue NEW LINE DEVELOPMENT for fraud and misrepresentation and GMAC for something (probably breach of contract) to obtain something called an "equitable estoppel" -- preventing GMAC from asserting you did not have title to the property. It may also be a criminal matter for the local District Attorney or the State's Attorney General.
Unfortunately, you may not actually have a legitimate claim against GMAC who wants to accelerate/foreclose on the loan because they never agreed to your assumption of the mortgage -- their contract was with "the Smiths", not you. The fact that they have waited over 18 months to consider doing something about it, however, is what could be trouble for them and creates the potential for the estoppel.
At the very least the attorney might be able to recover all of the money you have paid to New Line Development and/or GMAC, possibly even what you have paid to live elsewhere (that's a stretch), plus "damages". Unfortunately, if you win your suit, you will likely lose 30-40 percent of that total amount to the attorney for his services, which rightfully should be on top of your damages, not included in them. (That is, your attorney asks for his fees and expenses IN ADDITION TO whatever the court awards you if you prevail in your suit. The court is not obligated to honor that request.)
Posted: Wed Jul 18, 2012 01:26 am Post Subject:
You need to seek the advice of an attorney, contact your local bar association for a list of attorneys in your area who practice in insurance and or real estate law. Most attorneys will offer free consultations. If you happen to be in the mid atlantic region, please feel free to contact me. As Max noted, there might be an actual time limit to act on your claim (called a statute of limitations) or an artificial time limit (called laches)
Posted: Fri Jul 27, 2012 09:09 am Post Subject:
Fire damage should be included in your home insurance plan, it is the main aspect to consider while looking for complete coverage on issues which will harm you financially, it is all about finding ways to protective modes that will work for you.
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