December 20, 2017 at 5:22 pm #3877
Is the usufructuary:
1- Able to encumber the property after transferred 100% of their interest without telling mortgage company nor naked owner?
2- Able to terminate their usufruct via certified mail and not notarized?
3- Liable to naked owner if property is foreclosed on because of nonpayment by usufructuary? **Goes w/ question #1**
4- Liable to naked owner for all payments usufructuary stops and/or doesn’t pay relating to property?
Thank you in advance. Your help is greatly appreciated.
December 28, 2017 at 11:25 am #3880
In general terms a usufructuary has no authority to encumber property at any time since they do not own the property.
There is probably a gray area as to what would satisfy a title examiner on terminating a usufruct and what would constitute notice to the naked owner that the usufructuary has terminated their interest. So, if the usufruct is recorded there would definitely need to be an act recorded showing the usufruct is terminated.
A usufruct is controlled by the document creating the usufruct. Absent any specific language, a usufructuary may not generally be responsible for mortgage payments. There are probably cases on the point, but a usufructuary is generally responsible for the “upkeep” and “charges” of the home. Charges would be taxes, but not so sure about mortgage payments. It could boil down to whether the usufructuary was aware of the mortgage obligation and what the understanding of the parties was when the usufruct was created.
As for the last question, it depends on what payments we’re talking about.
December 29, 2017 at 6:18 pm #3883
Thank you for your response. I am the naked owner.
In 2012, my aunt took out a multiple indebtedness mortgage in her name. In 2013, she donated that property to me with the right of usufruct. In 2014, about 5-6 months after donation, she went back to that mortgage company & received more money. (This was done without my knowledge.) As a result, the mortgage company closed the 2012 loan and opened a new loan account in 2014. (She did not inform them about the donation.) Now, she has chosen to stop paying the mortgage company and they are going to foreclose for nonpayment. I’m trying to find out if I’m now responsible for paying this loan I knew nothing about. Please advise. Your assistance is greatly appreciated.
January 2, 2018 at 9:35 am #3886
Was the donation to you recorded? If so, and you need to make sure, then the mortgage company at the point of recordation would have been on notice that you owned the property.
Also, most mortgages have a due on sale clause that basically forbids a transfer without lender approval. If the owner transfers ownership without permission, then the entire debt becomes due.
If the donation was not recorded, then you have a real problem.
You really should see a lawyer at this point to sort all of this out and see if there are grounds to stop any further legal action by the lender.
January 2, 2018 at 11:47 pm #3887
Yes. The donation dated Oct 1, 2013 was recorded in JP Clerk of Court’s conveyance book on Dec 4, 2013. She went to the mortgage company in March 2014 and they gave her more money. (So much for due diligence on their part.)
I understand that if transferred without permission, the entire debt will become due. However, what I need clarification on is whether they would come after me and the house for the $20,000 or if they would solely go after my aunt because of her misrepresentations.
Curious….I noticed that she declared the property in the 2012 original loan documents as being commercial real estate. The property is residential. It’s a house. Does that matter?
I discovered all of this information by doing a simple search on JP Clerk of Court’s website. It wasn’t hidden. Quite easy to find, actually. The only thing it didn’t show me was the remaining balance. I believe I have a leg to stand on; however, I know Louisiana laws are kind of crazy. I know I need to see a lawyer but I’m trying to find out as much as I can before I spend money I don’t have on one. Consultations aren’t free where I live. I’d have to drive towards the city. If you could just share your thoughts with me pertaining to what was mentioned above, it would be greatly appreciated. Thank you very much.
January 8, 2018 at 2:09 pm #3888
It kind of depends on what you are wanting to accomplish.
1) Are you wanting to just walk away from this but be confident you have no liability on the loans?
2) Are you wanting to get the property back into a “clear” status without the debt liability that you did not take part in and with the usufruct terminated?
The first one would probably be fairly easy. The second one would involve a suit against the bank to get the mortgage removed from your property and making it a personal debt only on the part of the person who took out the mortgage.
It is doubtful that the personal versus commercial status of the property is relevant unless that is part of the bank being misled in the valuation for lending purposes. That would probably not be an issue that would involve you directly.
A big issue here is what impact did redoing the loan after the donation have on the legality of the loan. Again, a lawyer needs to review the paperwork and see what the options are.
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