HOA foreclosure purchase, lawyers potentially didn't name active duty spouse on title

[Joe Henry]

Well I've got myself into a pickle. It's been a long time since posting here, I hope everybody is well! This is a tough one, I've spoken to lots of investors but this is outside the normal realm of knowledge for most - but I doubt that's the case for bigger pockets members!

Last July I purchased a home from HOA foreclosure auction. It was previously owned by a husband and wife, the husband being active duty military since mid 2000s. It did have a first mortgage of theirs open on it, which they have not made payments on since ~2014, just 6 years after the house was built. A lis pendens from the bank was filed 10 years ago, but the foreclosure was put on hold because of the SCRA restrictions protecting an active duty service member from being foreclosed on. The state is Florida.

I did not consider this first mortgage an issue because I was simply going to live rent and mortgage free in this property myself, rent bedrooms, make good money and recoup my investment in short time (netting 4k income per month if you count not having to pay my current rent). The couple had dragged out the HOA foreclosure for 3 years, and by the time the husband gets out of the military, is served bank foreclosure documents, and the bank foreclosure is finalized, my lawyer said it could be anywhere from probably 3 - 10+ years given all the information.

The catch now is the HOA foreclosure - how was the HOA able to foreclose (beginning 3 years ago) when the husband is active duty? I have been notified that currently the bank is looking into this exact question. But there's more to the story.

What I've gathered from speaking with the previous owners realtors, is that the husband and wife went through a divorce proceeding back around 2014, the husband agreeing to quit claim the property to the wife, in return for her within 1 year refinancing him off the loan.

In a brief conversation with the husband, he seemed to confirm that the quit claim was signed, but by her, because he had given her POA on the house (for which there is public record filed regarding the POA). However, my title search and the cases regarding the divorce and both foreclosures do not contain a quit claim filing at the county clerks office. The bank has also confirmed that he is still on the mortgage, so the wife never refinanced him off.

Stranger still, the HOA foreclosure did not list the husband on the case, only the wife "et al". The bank is informing me that if the HOA foreclosure was done solely against the wife, then the husband is still on the title, and my ownership is subordinate to his. Ouch.

I have my attorney looking into all this, and the ramifications of everything. But bigger pockets I know has combined experience that is not to be topped. 

Some questions:

- What are the ramifications if a quit claim was signed before the HOA foreclosure began, but never filed? Could the wife file it now and have it be valid from the date of signing?
- Is it possible for the HOA to foreclose just on one of the two owners or is this reason to contest the HOA foreclosure? Or was the husband included in the "et al" because he gave the wife power of attorney?
- If the husband still had rights to the home, has the HOA violated SCRA protections by conducting the foreclosure, or did the family need to object for the foreclosure to be halted?
- I've been looking into resale options, however without being in contact with the preivous owners (they are not open to contact) my options are limited. One investor said sometimes you can "pay to sign" and make decisions on someone else's loan, is this really an option? One said I can go direct to the underwriter to get a deal from them regarding the mortgage, since the servicer will not negotiate the payoff (150k+ interest and fees alone) and I don't have the note holders consent to do a proper Subject To deal. I'm unfamiliar with these tactics, it would be helpful to know if there's any avenue there or otherwise any options I'm not aware of.

I know the bank and my lawyer will have their own answers to these questions, but I'm looking for ideas in general. Because of my personal schedule I don't have as much time to fix up the property anymore, so I'm looking for an exit probably as the most preferable outcome. Still, if there's no exit but I can live in the property that would be acceptable too. But if I live there and rent bedrooms, I also don't want the husband to come knocking some time in the future saying "hey, you owe me part of this back rent as I'm a priority owner". 

I'm open to hearing any and all ideas and options that come to mind. Thank you all!

[Chris Seveney]

Quote from @Joe Henry:

Well I've got myself into a pickle. It's been a long time since posting here, I hope everybody is well! This is a tough one, I've spoken to lots of investors but this is outside the normal realm of knowledge for most - but I doubt that's the case for bigger pockets members!

Last July I purchased a home from HOA foreclosure auction. It was previously owned by a husband and wife, the husband being active duty military since mid 2000s. It did have a first mortgage of theirs open on it, which they have not made payments on since ~2014, just 6 years after the house was built. A lis pendens from the bank was filed 10 years ago, but the foreclosure was put on hold because of the SCRA restrictions protecting an active duty service member from being foreclosed on. The state is Florida.

I did not consider this first mortgage an issue because I was simply going to live rent and mortgage free in this property myself, rent bedrooms, make good money and recoup my investment in short time (netting 4k income per month if you count not having to pay my current rent). The couple had dragged out the HOA foreclosure for 3 years, and by the time the husband gets out of the military, is served bank foreclosure documents, and the bank foreclosure is finalized, my lawyer said it could be anywhere from probably 3 - 10+ years given all the information.

The catch now is the HOA foreclosure - how was the HOA able to foreclose (beginning 3 years ago) when the husband is active duty? I have been notified that currently the bank is looking into this exact question. But there's more to the story.

What I've gathered from speaking with the previous owners realtors, is that the husband and wife went through a divorce proceeding back around 2014, the husband agreeing to quit claim the property to the wife, in return for her within 1 year refinancing him off the loan.

In a brief conversation with the husband, he seemed to confirm that the quit claim was signed, but by her, because he had given her POA on the house (for which there is public record filed regarding the POA). However, my title search and the cases regarding the divorce and both foreclosures do not contain a quit claim filing at the county clerks office. The bank has also confirmed that he is still on the mortgage, so the wife never refinanced him off.

Stranger still, the HOA foreclosure did not list the husband on the case, only the wife "et al". The bank is informing me that if the HOA foreclosure was done solely against the wife, then the husband is still on the title, and my ownership is subordinate to his. Ouch.

I have my attorney looking into all this, and the ramifications of everything. But bigger pockets I know has combined experience that is not to be topped. 

Some questions:

- What are the ramifications if a quit claim was signed before the HOA foreclosure began, but never filed? Could the wife file it now and have it be valid from the date of signing?
- Is it possible for the HOA to foreclose just on one of the two owners or is this reason to contest the HOA foreclosure? Or was the husband included in the "et al" because he gave the wife power of attorney?
- If the husband still had rights to the home, has the HOA violated SCRA protections by conducting the foreclosure, or did the family need to object for the foreclosure to be halted?
- I've been looking into resale options, however without being in contact with the preivous owners (they are not open to contact) my options are limited. One investor said sometimes you can "pay to sign" and make decisions on someone else's loan, is this really an option? One said I can go direct to the underwriter to get a deal from them regarding the mortgage, since the servicer will not negotiate the payoff (150k+ interest and fees alone) and I don't have the note holders consent to do a proper Subject To deal. I'm unfamiliar with these tactics, it would be helpful to know if there's any avenue there or otherwise any options I'm not aware of.

I know the bank and my lawyer will have their own answers to these questions, but I'm looking for ideas in general. Because of my personal schedule I don't have as much time to fix up the property anymore, so I'm looking for an exit probably as the most preferable outcome. Still, if there's no exit but I can live in the property that would be acceptable too. But if I live there and rent bedrooms, I also don't want the husband to come knocking some time in the future saying "hey, you owe me part of this back rent as I'm a priority owner". 

I'm open to hearing any and all ideas and options that come to mind. Thank you all!

Some thoughts from my non attorney opinion

Ramifications of QCD signed but not recorded - its worthless. It will not be valid from date it was signed.

The HOA should not have been able to foreclose on this property. Just because she has POA does not mean they did not have to name him in the complaint.

It does appear HOA violated SCRA protections and the foreclosure is invalid.

You cannot make decisions on someone elses loan. 

You technically if you live in the property could be evicted as you are not a tenant or have any ownership, you are a squatter. 

Your attorney may try and overturn foreclosure and get your funds returned to you. 

[Ron S.]

My uneducated two cents:

There are no rules stating that you can't foreclose on active duty military, just that you have to get a court order to foreclose, under SCRA.

An unrecorded quitclaim is still valid but not recording it opens the parties up to challenges and is not advisable.

In some states, collecting rent while a property is in foreclosure, may be frowned upon.

I'd stop getting advice from the "investors" you've been talking to. My opinion would be to sit back and wait for the lawyers to get back with you on next steps.

[Joe Henry]

@Ron S., @Chris Seveney

Thank you both for your replies, here's an update. My lawyer did a deep dive and discovered that it appears the county tax appraiser erroneously removed the husband from the title one year when updating the parcel tax record, probably incorrectly reading the divorce agreement and not actually looking up to see if a quit claim had been signed. After that the HOA was able to foreclose because no military personnel were listed on title. The bank cannot foreclose because the military husband is still on the note and still in the military.

I contacted the husband with this news and he had no interest in getting the property back. As of now I am the owner and live in the property, the note from the previous owners is still open.

[Chris Seveney]

Quote from @Joe Henry:

@Ron S., @Chris Seveney

Thank you both for your replies, here's an update. My lawyer did a deep dive and discovered that it appears the county tax appraiser erroneously removed the husband from the title one year when updating the parcel tax record, probably incorrectly reading the divorce agreement and not actually looking up to see if a quit claim had been signed. After that the HOA was able to foreclose because no military personnel were listed on title. The bank cannot foreclose because the military husband is still on the note and still in the military.

I contacted the husband with this news and he had no interest in getting the property back. As of now I am the owner and live in the property, the note from the previous owners is still open.

 So eventually you will have to pay off that note or they will foreclose on you. You cannot sell the property as it will never have clear title. 

Technically the HOA foreclosure was invalid but that is a completely different issue as you never go off tax record to see who owns a property you go off of recorders office and depending on state have to list junior liens in the complaint. .

[Joe Henry]

Quote from @Chris Seveney:

Quote from @Joe Henry:

@Ron S., @Chris Seveney

Thank you both for your replies, here's an update. My lawyer did a deep dive and discovered that it appears the county tax appraiser erroneously removed the husband from the title one year when updating the parcel tax record, probably incorrectly reading the divorce agreement and not actually looking up to see if a quit claim had been signed. After that the HOA was able to foreclose because no military personnel were listed on title. The bank cannot foreclose because the military husband is still on the note and still in the military.

I contacted the husband with this news and he had no interest in getting the property back. As of now I am the owner and live in the property, the note from the previous owners is still open.

 So eventually you will have to pay off that note or they will foreclose on you. You cannot sell the property as it will never have clear title. 

Technically the HOA foreclosure was invalid but that is a completely different issue as you never go off tax record to see who owns a property you go off of recorders office and depending on state have to list junior liens in the complaint. .

Yes, when they foreclose I'll lose the house. My lawyer said that if the past owner (the husband) is not interested in getting the house back it will be next to impossible to overturn the foreclosure based on that title issue. The husband has told me he got the bank to agree not to come after him for deficiency - not sure if that's true or he just didn't know what he's talking about, he seemed pretty out of the loop on a lot of the information, but he's not interested in getting the house back.