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We believe that she was coerced into that process. That money never made it to her bank account. We believe a family member took that money. Is my mother responsible for that loan? She clearly has no idea anymore of finances.
There's another aspect to this scenario that I thought of after posting.
Mortgages are collateralized, i.e., there has to be something of worth that the mortgagee can rely on if the borrower defaults. Typically for a non business entity that would be someone's house, or a car, etc.
Michael, the first mortgagee (lender) would have priority access to the collateral. E.g., if your mother isn't able to keep the loan current, and defaults, the first mortgagee would have priority rights to foreclose on the house.
What would be the second mortgagee's collateral on the house, assuming that the first mortgage also has the house as collateral?
That's a question that's unanswered. Unless there was what's known as a Subordination Agreement, by which the first mortgagee agrees to subordinate its interest in favor of the second mortgagee, the latter may not have recourse to seize any assets. In other words, what incentive does a company have to grant a mortgage and grant funds if it has nothing to rely on in the event of a default?
If your mother is rich and has other properties, or if her home is highly valuable and could be collateral for 2 mortgages, that's a different story.
That's what I've been wondering about. What kind of company would loan money to someone on a property that's already secured by a first mortgage?
Michael, what would your mother be able to offer to get that mortgage? Does she have other property? A large investment portfolio? And if so, why would she need a second loan? I do understand that there may be cognitive issues involved.
Even if she doesn't have a clear concept of financial issues anymore, the lender would. So I think your first priority is to get a copy of the second mortgage, as I mentioned earlier.
You need to verify that the loan in fact was made.
If the county record department is closed, more than likely staff are working remotely, and can arrange for a copy to be e-mailed to you, at a cost. Or perhaps someone can tell you who the mortgage company is and give you pertinent data.
You need this before you go any farther, just to prove the existence of the second mortgage. Then you need to find a good real estate attorney who handles contested issues. Someone whose practice is reviewing purchase and sale agreements wouldn't necessarily have this experience.
And BTW, it would help if you would respond to our posts. Often people just post once and never come back.
She is responsible until u can prove otherwise. Since the money never hit her account I would wonder what account it went to. Was the loan handled in person, by phone or internet.
If you are not her financial PoA then you may need to consult with an elder law attorney who specializes in financial abuse, but like the others have stated, you will need some sort of evidence or proof of the wrongdoing. If you have a medical record that has the date of a cognitive test, this will be vital to an investigation. If you know who the lender is then there must be a paper trail to follow. Even if you're not her financial PoA you may be able to take the medical record to the lender and inform them of your concern and a pending investigation. They may be more forthcoming with helpful info.
This isn't a challenge to your assumption, but what facts, and documentation, do you have to believe that she was coerced? And was this by a family member, or an agent pushing a second mortgage?
There's a question as well of the representative of the second mortgagee (lender). A good bank, or company, would seriously evaluate making a mortgage to someone older w/o doing some research, such as investigating her financial capacity.
Is the second mortgagee a reputable company, or one of the ones that push second mortgages to older people?
As to the type of mortgage, was it a HELOC, or a straight mortgage? It makes a difference b/c the former would be disbursed on drawdown, as opposed to all funds being advanced at closing.
You really need to see the closing statement to get more information on the disbursal of funds. It may be that it wasn't disbursed to her bank account. In fact, I'm wondering why a second mortgage would be made if only to get funds in an account, or were they to pay for some specific aspect of your mother's care?
As to whether or not she's responsible, you'd have to prove that the mortgagee had or should have had knowledge that she lacked capacity to enter the loan. And that won't be easy unless you can also prove that your mother was aware of this and requested a mortgage anyway, or that the mortgagee's rep was aware and either didn't perform due diligence or ignored the dementia diagnosis.
Go to your county recorder's office and get a copy of the second mortgage, then check to verify that it is your mother's signature. That's one starting point. If you know who the realtor is, you could ask for a copy of the closing documents, especially if your mother identified you as proxy under a power of attorney.
Unless you can prove that she wasn't aware of the effects of executing a second mortgage, I think that she would be liable, unless you can find documentation that she was coerced, or manipulated, whether by a family member of the sales person for the mortgage company.
I wish you luck on this; it isn't going to be easy to get the documentation and facts you need.
It seems you need to do a lot of research into this loan, and into what may have occurred. The POA should be able to get documents. If there is no POA for financial I am afraid it will be more difficult to trace down what Mom did or did not do and who she did it with. Wishing you good luck. Your Mom does stand responsible for any loans made by her, signed by her, unless the lender was aware she was incompetent to sign, or should have been. So as I said, a lot of search. I would go first to a real estate attorney. Hope others have some good advice for you.
By proceeding, I agree that I understand the following disclosures:
I. How We Work in Washington.
Based on your preferences, we provide you with information about one or more of our contracted senior living providers ("Participating Communities") and provide your Senior Living Care Information to Participating Communities. The Participating Communities may contact you directly regarding their services.
APFM does not endorse or recommend any provider. It is your sole responsibility to select the appropriate care for yourself or your loved one. We work with both you and the Participating Communities in your search. We do not permit our Advisors to have an ownership interest in Participating Communities.
II. How We Are Paid.
We do not charge you any fee – we are paid by the Participating Communities. Some Participating Communities pay us a percentage of the first month's standard rate for the rent and care services you select. We invoice these fees after the senior moves in.
III. When We Tour.
APFM tours certain Participating Communities in Washington (typically more in metropolitan areas than in rural areas.) During the 12 month period prior to December 31, 2017, we toured 86.2% of Participating Communities with capacity for 20 or more residents.
IV. No Obligation or Commitment.
You have no obligation to use or to continue to use our services. Because you pay no fee to us, you will never need to ask for a refund.
V. Complaints.
Please contact our Family Feedback Line at (866) 584-7340 or ConsumerFeedback@aplaceformom.com to report any complaint. Consumers have many avenues to address a dispute with any referral service company, including the right to file a complaint with the Attorney General's office at: Consumer Protection Division, 800 5th Avenue, Ste. 2000, Seattle, 98104 or 800-551-4636.
VI. No Waiver of Your Rights.
APFM does not (and may not) require or even ask consumers seeking senior housing or care services in Washington State to sign waivers of liability for losses of personal property or injury or to sign waivers of any rights established under law.
I agree that:
A.
I authorize A Place For Mom ("APFM") to collect certain personal and contact detail information, as well as relevant health care information about me or from me about the senior family member or relative I am assisting ("Senior Living Care Information").
B.
APFM may provide information to me electronically. My electronic signature on agreements and documents has the same effect as if I signed them in ink.
C.
APFM may send all communications to me electronically via e-mail or by access to an APFM web site.
D.
If I want a paper copy, I can print a copy of the Disclosures or download the Disclosures for my records.
E.
This E-Sign Acknowledgement and Authorization applies to these Disclosures and all future Disclosures related to APFM's services, unless I revoke my authorization. You may revoke this authorization in writing at any time (except where we have already disclosed information before receiving your revocation.) This authorization will expire after one year.
F.
You consent to APFM's reaching out to you using a phone system than can auto-dial numbers (we miss rotary phones, too!), but this consent is not required to use our service.
Mortgages are collateralized, i.e., there has to be something of worth that the mortgagee can rely on if the borrower defaults. Typically for a non business entity that would be someone's house, or a car, etc.
Michael, the first mortgagee (lender) would have priority access to the collateral. E.g., if your mother isn't able to keep the loan current, and defaults, the first mortgagee would have priority rights to foreclose on the house.
What would be the second mortgagee's collateral on the house, assuming that the first mortgage also has the house as collateral?
That's a question that's unanswered. Unless there was what's known as a Subordination Agreement, by which the first mortgagee agrees to subordinate its interest in favor of the second mortgagee, the latter may not have recourse to seize any assets. In other words, what incentive does a company have to grant a mortgage and grant funds if it has nothing to rely on in the event of a default?
If your mother is rich and has other properties, or if her home is highly valuable and could be collateral for 2 mortgages, that's a different story.
That's what I've been wondering about. What kind of company would loan money to someone on a property that's already secured by a first mortgage?
Michael, what would your mother be able to offer to get that mortgage? Does she have other property? A large investment portfolio? And if so, why would she need a second loan? I do understand that there may be cognitive issues involved.
Even if she doesn't have a clear concept of financial issues anymore, the lender would. So I think your first priority is to get a copy of the second mortgage, as I mentioned earlier.
You need to verify that the loan in fact was made.
If the county record department is closed, more than likely staff are working remotely, and can arrange for a copy to be e-mailed to you, at a cost. Or perhaps someone can tell you who the mortgage company is and give you pertinent data.
You need this before you go any farther, just to prove the existence of the second mortgage. Then you need to find a good real estate attorney who handles contested issues. Someone whose practice is reviewing purchase and sale agreements wouldn't necessarily have this experience.
And BTW, it would help if you would respond to our posts. Often people just post once and never come back.
There's a question as well of the representative of the second mortgagee (lender). A good bank, or company, would seriously evaluate making a mortgage to someone older w/o doing some research, such as investigating her financial capacity.
Is the second mortgagee a reputable company, or one of the ones that push second mortgages to older people?
As to the type of mortgage, was it a HELOC, or a straight mortgage? It makes a difference b/c the former would be disbursed on drawdown, as opposed to all funds being advanced at closing.
You really need to see the closing statement to get more information on the disbursal of funds. It may be that it wasn't disbursed to her bank account. In fact, I'm wondering why a second mortgage would be made if only to get funds in an account, or were they to pay for some specific aspect of your mother's care?
As to whether or not she's responsible, you'd have to prove that the mortgagee had or should have had knowledge that she lacked capacity to enter the loan. And that won't be easy unless you can also prove that your mother was aware of this and requested a mortgage anyway, or that the mortgagee's rep was aware and either didn't perform due diligence or ignored the dementia diagnosis.
Go to your county recorder's office and get a copy of the second mortgage, then check to verify that it is your mother's signature. That's one starting point. If you know who the realtor is, you could ask for a copy of the closing documents, especially if your mother identified you as proxy under a power of attorney.
Unless you can prove that she wasn't aware of the effects of executing a second mortgage, I think that she would be liable, unless you can find documentation that she was coerced, or manipulated, whether by a family member of the sales person for the mortgage company.
I wish you luck on this; it isn't going to be easy to get the documentation and facts you need.