All Forum Posts by: Tom Gimer

@Account Closed The lawsuit I mentioned would be to quiet title — whether based upon the unrecorded POA, fraud, error, mistake, adverse possession, and/or anything else a local attorney could come up with that might be successful. You can plead in the alternative.

But I would be somewhat concerned about satisfying a “hostile” element in an adverse possession claim given OP admittedly was unaware of the interest until recently. It’s tough to be hostile against something you aren’t aware of. That’s an issue requiring legal research of local law for sure. 

Another idea perhaps more leverage than anything would be the threat of a forced sale where OP would collect first every dollar put into for the property over the years before the pot is split. 

@Lutfiyya Portier Tough situation for sure but certainly possible to solve. Is court  involvement required? Maybe, maybe not. 

Skip-tracing your "co-owner" is the first step. It sounds like an honest mistake was made years ago and most people when confronted with this type of situation are reasonable and will sign whatever is needed to correct it. Maybe you pay them for their trouble and to avoid the lawsuit. But the problem will not fix itself over time... you have to be proactive.

If the lender doesn't want the deposit(s) shown as a credit to the buyer (after all, these are not funds used to reduce the cash from buyer, they are third-party funds), the new security deposit escrow account can be the line item beneficiary on the seller-side only.

Line ~506: Security Deposit(s) to ESCROW (or similar). Could also be handled POC.

Always confirm the amounts claimed to be held by the seller match the tenant records.

Not happening unless you deal with uneducated lenders. Any subordinate lien could be wiped out in a matter of months once the senior lien holder becomes aware of the transfer.

Sell the property. 

Texas Law: A fundamental rule of equity is that a court will not grant specific performance unless it is shown that no adequate remedy exists at law. Lone Star Salt Co. v. Texas Short Line Railway,  99 Tex. 434, 90 S.W. 863. Where the remedy at law is adequate, equity has no jurisdiction to decree specific performance.

Of course there are cases since carving out exceptions to the general rule as well as what makes money damages "adequate". It is definitely not my intention to take us down that rabbit hole.

But to really answer the question (why it morphed just to TX law I have no idea) you can't  just distinguish a cited case because the facts differ from those in OP's pattern. Because ultimately this is a contract question... and to argue it at all would require the exact contract language. Doing so without the contract is pointless.

Never rely upon a current owner search to determine the true status of a property’s title.

I always wondered how the finest-planned JVs imploded. 

@Sarah Moore This issue is going to be resolved by the law of the state where the LLC was originally formed. Under the laws of most states, when a corporate entity is dissolved, until a court appoints a receiver, the business and affairs of the entity shall be managed under the direction of the trustees of the entity's assets to undertake the acts necessary or proper to liquidate the entity and wind up its affairs.

In the context of LLCs most state laws permit the remaining members (or sole surviving member) of a limited liability company or, if the LLC has no remaining members, the personal representative, guardian, or other successor to the last remaining member of the LLC to wind up its affairs.

The title company needs to do its research and not resort to the "you need to reinstate the LLC" position that many default to.

@Juliet Banks The flip side of that argument is why ruin your own credit when you can allow some random moron to do it for you.

@Robert B. A memorandum of interest (or affidavit of interest, memorandum of contract) is a document or instrument that summarizes the contract or seller’s breach/anticipatory breach of contract and which is recorded among the local land records. It is intended to give the world notice of the buyer’s claim and cloud the title. It’s used to prevent the seller from conveying to some other party or to force the seller to come to settlement. Also to document and support a future suit for specific performance. 

Is everybody who uses this tactic a scumbag? No. Sometimes it’s the seller who is the scumbag.