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Right Of Survivorship


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#1 Pattzy2012_7226

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Posted 07 December 2012 - 08:49 PM





Married couple in West Virginia owns house as joint tenants with rights of survivorship; both of their names are on the deed, but they have no mortgage. Husband then signs for a home equity loan, and wife signs as a non-borrower. Husband falls behind on loan payments while battling cancer. Husband dies. Bank will not discuss anything with the wife pertaining to the loan. Probate clerk refuses to attach husband's death certificate to deed, and puts the house in probate. Bank forecloses without notifying wife by way of a notice on the door, and mailed notification was not received. Wife is evicted. In as much as WV is a Lien Theory state it seems that the wife (particularly as a non- borrower) should not have been responsible to pay the loan?

Wife paid probate fees in cash and later realized that she had been overcharged; when wife asked to be reimbursed for the overpayment the clerk attempted to pay wife with a personal check. Wife refused to accept the personal check, but took a photo of the check (with her cell phone) in as much as the clerk would not reimburse her in the appropriate manner. Wife reported this incident to the police; wife was told that she would, now, have to sue to get a refund.

I would like to find a probate attorney in West Virginia who would take the case.

#2 adjusterjack

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Posted 08 December 2012 - 08:35 AM

Married couple in West Virginia owns house as joint tenants with rights of survivorship; both of their names are on the deed, but they have no mortgage. Husband then signs for a home equity loan, and wife signs as a non-borrower. Husband falls behind on loan payments while battling cancer. Husband dies. Bank will not discuss anything with the wife pertaining to the loan.


That was was when wife made first mistake and everything went downhill from there. I can only conclude that she didn't properly get her papers from the probate court appointing her as administrator of the estate. Those papers, when presented to bank, would give the bank the obligation to discuss the loan with her.


Probate clerk refuses to attach husband's death certificate to deed,


Second mistake. There is no such thing as "attaching a death certificate to a deed." I don't know why you think that's necessary or even possible. With "right of survivorship" the house automatically belonged to the wife at the moment of husband's death and shouldn't have even been mentioned to the probate court.

Bank forecloses without notifying wife by way of a notice on the door, and mailed notification was not received.


Wife was not the borrower. Bank had no obligation to her. And I'll bet the bank has a record of sending the notices. I realize that wife was going through bad times with death of her husband. But, still, self-preservation dictates that she should have known that payments were in default and there would be dire consequence for not addressing it.

Wife is evicted.


No surprise there.

In as much as WV is a Lien Theory state it seems that the wife (particularly as a non- borrower) should not have been responsible to pay the loan?


The wife would not be responsible for paying the loan. But the house was security for the loan and the bank had a right to take it back if the loan didn't get paid. In other words you don't get to keep what you don't pay for.

Wife paid probate fees in cash and later realized that she had been overcharged; when wife asked to be reimbursed for the overpayment the clerk attempted to pay wife with a personal check. Wife refused to accept the personal check,


Another mistake. And a very foolish one. What difference does it make where the money came from?

Wife reported this incident to the police; wife was told that she would, now, have to sue to get a refund.


The police have nothing to do with it. Nobody committed a crime against her. Good luck suing the probate court.



I would like to find a probate attorney in West Virginia who would take the case.


Then you need to google probate attorneys, or use the local yellow pages, and start making phone calls. I seriously doubt that any lawyers are going to read this and jump up and volunteer.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#3 Guest_FindLaw_Amir_*

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Posted 10 December 2012 - 08:05 AM

I would like to find a probate attorney in West Virginia who would take the case.


You may wish to use the West Virginia Probate & Estate Administration Lawyers Directory to locate a local lawyer willing to address your claim.

#4 knort4

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Posted 10 December 2012 - 08:10 AM

How much money are we talking about here? If you have proper documentation to prove your claim, you can explain your case yourself in small claims court.

#5 pg1067

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Posted 10 December 2012 - 08:11 AM

In as much as WV is a Lien Theory state it seems that the wife (particularly as a non- borrower) should not have been responsible to pay the loan?


Despite your use of a question mark, this isn't a question.

Regardless of WV's status as a "lien theory state," the secured lender still has the right to foreclose on the property to recover what is due and owing on the loan. I'm not really sure what it means to "sign[] as a non-borrower," but even if the wife isn't personally liable on the loan, that doesn't mean the lender loses its recourse against the property.


Wife paid probate fees in cash and later realized that she had been overcharged; when wife asked to be reimbursed for the overpayment the clerk attempted to pay wife with a personal check. Wife refused to accept the personal check, but took a photo of the check (with her cell phone) in as much as the clerk would not reimburse her in the appropriate manner. Wife reported this incident to the police; wife was told that she would, now, have to sue to get a refund.


Of course. What you described isn't a crime.


I would like to find a probate attorney in West Virginia who would take the case.


I'm not sure what "case" you're talking about. For the overpayment of a filing fee? How much $$ are we talking about? Is it really worth the cost of an attorney? If that's not what you're talking about, what "case" are you talking about?

#6 pg1067

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Posted 10 December 2012 - 08:14 AM

Wife was not the borrower. Bank had no obligation to her.


That's incorrect. Since the wife was an owner of record, the bank had an obligation to give her notice in the manner required by WV law. Obviously, whether the bank complied with its obligation is impossible to discern from the post. It would hardly be the first time a bank screwed up the foreclosure process.

#7 Fallen

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Posted 12 December 2012 - 08:06 AM

Pattzy, I'm not clear on why the re-quote of adjuster's comments and none of your own.

We cannot know from here whether the bank messed up; very likely if you didn't receive proper notice of foreclosure. Also not clear what you mean by "non-borrower" but if they didn't demand that you be a borrower on the mortgage and wanted to ensure they could foreclose/keep their security interest in property despite the fact that the husband no longer owned an interest in it the moment he died, that would seem to have something to do with it.

I suggest you consult a local real estate attorney with banking law experience.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)





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