All Forum Posts by: Davido Davido

Had troubles getting other sample assignment to load, but you can get the idea from the one above.  After you get the debt, immediately start foreclosure.  If either brother objects they will need to pay the full amount ($24,000 plus interest, plus any taxes and penalties that you paid to preserve your debt. I suspect that neither will even respond to the foreclosure.

2nd. Offer brother Sam a thousand or so for a quit claim deed, that deeds over his interest in the property to you.  Then make the same offer to brother Frank and maybe put to rest Franks concerm by assuring him in writing that you won't pay brother Sam another penny.  A quit claim deed from both of them would allow you to choose between proceeding with probate or (if you were successful  with option 1) foreclosure.  

Note that there is a State statute of limitations on how long the debt is enforceable by court action.  That means, if the debt on the property is beyond the Statute of Limitations, and you buy the debt and start foreclosure, then any party or heir who has an interest in the property could appear (unlikely but possible) and they could claim the debt is beyond the State statute of limitations and therefore the foreclosure must be dismissed.

Conversely, if the debt is beyond the Statute of Limitations, but you did get a quit claim from each of the two brothers, then you could quiet title in your name without paying a cent to the mortgage or lien holder.   Just make sure you, or the brothers haven't made any payments on the debt.  A payment typically restarts the clock on the Statute of Limitations.

Good Luck, Let us know if you can move forward on the property.

Hello Brandon,

Two things.  1st Buy what ever debt/lien is recorded on the property.  Do not pay it off, buy an assignment of the debt to you, so that you become the person that debt is now owed to.  Your intitial post mentions: "

"Owes= $24,000 (Charged Off but are accepting payments to principle)"

If you can get that debt assigned to you then you are in the driver's seat and you have the right to remove the property from tax foreclosure in order to protect your valid lien, whether either brother likes it or not.  Then foreclose against the estate to get both brother's out of the picture.  I recommend calling who ever is currently owed the $24,000 and offer them a few thousand for an assignment of their interest.  Assignments are simple documents.  Here are two sample assignments.

If either wants to

Steve Babiak is talking straight, "...just because you do not consider this "hostile" does not mean that it is not "hostile".  When someone put a fence on your land the law presumptively considers their fence to be evidence that they intended to and did in fact possess the fenced off property.  Courts will typically find that said possession is "continuous", "actual", "open and notorious", and "hostile", -as well as quite arguably "exclusive".  Just by existing on your property, your neighbor's fence could complete all the elements of adverse possession.  Though the law might be different in your state, as a general rule;

To qualify as adverse possession, the trespasser’s occupation of the land must be:

• hostile
• actual
• open and notorious, and
• exclusive and continuous for a certain period of time.

This article discusses each of these elements in-depth.

http://www.nolo.com/legal-encyclopedia/adverse-pos...

@William Hochstedler  Yes, the length of time before the Statute of Limitations can be used is very state specific,

http://www.bankrate.com/finance/credit-cards/state-statutes-of-limitations-for-old-debts-1.aspx  

but the general principle is broadly accepted and a statute of limitations defense is available in every state.

http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html

http://www.americanbar.org/groups/litigation/committees/realestate/news_analysis/news_developments_2015/state-mortgage-foreclosure-statute-of-limitations.html

 Here is a quote from the above link to the American bar association website regarding using the various state Statutes of Limitations in regard to mortgage liens.

Yes, I have used the existence of the WA State Statute of Limitations as a strategy to more aggressively acquire real estate in WA and once to quiet title in WA.  Here Mortgages do fall under the Washington Statute of Limitations.  Our time requirement is 6 years.  I have not used the Statute to actually defend against a foreclosure, only to acquire properties that others avoided because they appear to lack equity.  When you know that the majority of debt on a property either is, or soon will be indefensible, then you can afford to be considerably more aggressive than competing parties who are  unaware.

See also this informative article by a Colorado Lawyer regarding application of the statute there.

http://www.markhofgardlaw.com/Articles/When-is-a-Mortgage-Lien-Extinguished-Through-Expiration-of-the-Statute-of-Limitations.shtml

It is not that you don't owe the money, rather that the courts will no longer enforce the debt if you wait years before atempting to collect it.  Statutes of limitations apply to judicial enforcement of debts.  The limitation on judicial action is put in place as a practical matter.  The older a debt becomes the more difficult and time consuming it becomes for courts to sort out disputes.  Therefore, all states set a practical limit on enforcing debts through the legal system.  In essence, they say if the debt wasn't important enough to for you to attempt to collect on it for X many years, then don't come late to the court and say John Doe owes you money from years ago.

John Doe may in fact still owe the money, but if the lender waited until the debt is beyond the state's Statute of Limitations before attempting to collect the debt, then John Doe is entitled to claim the Statute of Limitations as his defense.  By establishing that a debt is beyond the Statute of Limitations, John Doe can quickly and easily dismiss any suit his lender may file to enforce collection of the debt.  If, the money was owed on a real estate transaction and the debt is beyond the state's Statute of Limitations, then John Doe can also ask the Court to quiet title in his name, (as you mentioned in your post above) so that even a recorded debt is removed from the title.

Again, the Statute of Limitations says nothing about whether John Doe actually owes the money, rather it more a matter of whether a reasonable and timely effort was made to enforce collection.  If you wait to long, the Statute of Limitations becomes a defense to enforcement.

@Luke Carl & @Account Closed  You are right that any property sitting vacant for 5 years is likely to be in bad shape.   "Probably had broken pipes and all kinds of damage by now"

However, the length of time it has gone unoccupied and unpaid can also be to your advantage.  Tennessee has a 6 year statute of limitations, which means that if the bank doesn't foreclose soon, then within about a year Maria Smith can prevent foreclosure by claiming the statute of limitations as a defense.  If you can get a simple quit claim deed from Maria Smith, then you can could likely use the statute of limitations yourself.   Since Maria Smith long ago gave up on the property, you might be able to get her to sign a quit claim deed for a hundred dollar incentive (get her signature notarized).  You could end up with the property free and clear for very little cash out of pocket.  Then resell or keep.  Here is a general comment on statutes of limitations from the legal encyclopedia Nolo.com

The Statute of Limitations in the Current Real Estate Market

Most lenders currently have a backlog of delinquent loans for which they have not yet filed foreclosure actions. It may be months or even years between the time that the borrower stops making payments and the lender initiates the foreclosure process. This means that it's important for borrowers to be aware of the statute of limitations for their particular state. It may become a valid defense in a foreclosure action."

Good luck to you.

@Mark Poulton,   The bigger mystery for me, is how is it that the county has not filed a property tax foreclosure action -with 14 years of property taxes outstanding?

However, if you can find the owner of record, and bargain with the owner to sign over his/her remaining interest in the property to you via a quit claim deed, then you would greatly increase your position in the property against HSBC while also eliminating the need to adversely possess the property.  If the note has indeed been in default for 12 years, then it is beyond the NC statute of limitations for debt collection.  HSBC's mortgage is already unenforceable.  No need to buy it or do a short sale.  I'm pretty sure, an adverse possessor would not have standing to use the statute of limitations to defend the property against any future HSBC foreclosure action.  But the owner of record certainly would.  I suspect it would be easier and more profitable to locate and work with the owner , -or heirs, than with HSBC.

http://research.lawyers.com/north-carolina/north-carolina-statute-of-limitations.html

Good luck with it.   Please post again on this thread if there are new developments.

Thank you, Mike!

@Ahmed Souissi in the Zombie Title thread mentioned above.