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What Happens to a Florida Homeowners Mortgage After They Die?


Florida has some of the strongest homestead protections in the country. This means that unsecured creditors generally cannot force you to sell your primary residence to satisfy a debt. But this protection does not cover a secured debt such as a mortgage. Obviously, if you fail to make your mortgage payments, the lender can–and almost certainly will–foreclose on your home and force a sale.

Fourth District: Mortgage Lender Cannot Do End-Run Around Probate Process

So what happens if the homeowner dies before paying off their mortgage? The debt does not simply disappear. In some cases the Personal Representative of the homeowner’s estate will sell the property during probate and use those proceeds to pay off the mortgage. If, however, the homeowner left the property to someone in their will, or an intestate heir wishes to hold onto the property, they can effectively take over the mortgage. Under federal law, an heir who assumes such a mortgage typically does not have to first prove their “ability to repay” to the lender.

What the lender cannot do, however, is try and foreclose on the property without going through the proper probate process. The Florida Fourth District Court of Appeal recently chided a mortgage lender for just such behavior. In Desbrunes v. US Bank National Association, a property owner (the decedent) died leaving an outstanding mortgage debt. The lender apparently initiated foreclosure proceedings prior to the decedent’s death. After the decedent passed, his attorney notified the court.

In response, the lender added the decedent’s heirs as defendants to the foreclosure lawsuit. As the Fourth District explained, this was “clearly improper.” The correct procedure under Florida law is to add the personal representative of the decedent’s probate estate as a defendant. The Court emphasized, “A decedent’s heirs are not the legal representatives of the decedent.”

The lender–and the trial court–then compounded this mistake by appointing an “administrator ad litem and a guardian ad litem” to represent any “unknown heirs” of the decedent. What the lender should have done in this situation is initiate a probate proceeding and seek appointment of a personal representative. (A creditor is allowed to initiate probate in Florida.)

The decedent’s attorney asked the trial court to abate–pause–the foreclosure litigation until a probate proceeding was initiated. The court refused, instead granting the lender a default judgment of foreclosure. The Fourth District said that was a “legal nullity and invalid.” Since there was no open probate estate and no personal representative, there was no “proper party” who could defend against the foreclosure proceeding. This alone required reversal of the foreclosure judgment.

Contact Mark R. Manceri, P.A., Today

Florida’s probate rules exist to ensure an orderly administration of a deceased person’s assets and liabilities. Attempting to short-circuit this system, as demonstrated in the above case, can significantly impact the rights of a decedent’s estate and heirs. So if you are involved in a similar legal dispute, it is important to seek out timely legal advice from an experienced Pompano Beach estate and trust litigation lawyer. Contact the offices of Mark R. Manceri, P.A., Attorney at Law, today to schedule an initial consultation.


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