What if your judgment debtor lives in the home of your deceased father who appeared to own the home your debtor lives in? What if you can’t find any probate records and the house is still in the parents’ name?
One of the many articles of judgment: I am not a lawyer, and this article is my opinion based on my experience, consult an attorney if you need legal advice.
Of course, you believe that the father left the house to his debtor, however, that is just a hunch. How can you know for sure who owns the home now or will be in the future?
One way to determine ownership of the property is to take the deed at the registrar’s office, then take the debtor to court with a debtor’s examination, to admit that they live there. Perhaps there is a living trust. As long as your debtor pays the taxes, no one will find out, unless someone blows things up in your face.
A shortcut to finding out whose house is owned is to use a professional data service. You provide the APN (appraiser’s parcel number), and certain data services or any title company will show the most recent title transfer.
Some other things you can do to find out who owns the home and increase your chances of getting paid:
1) Is there a completed judgment or property bond summary (with the last 4 digits of the debtor’s social security number or driver’s license) registered in the county where the parents’ home is located? It is important to record a summary, even if the debtor does not own any property, because it will be attached to the future interests of the debtor when title is transferred to them. If a summary is already on file, the debtor may not have changed title yet.
2) Make a copy of the title deed and see who owns it. Is the title in the name of a living trust, or only in the name of the parents, or in the name of more than one person?
3) Did the father live in that house as his primary residence, or did he just own the house?
4) Double check, is there an open probate file in the county where the house is located? Even if the home is transferred to a living trust, there is sometimes an probate file for things that were not deposited in the trust. Did the father also own property elsewhere in another county? There may be a probate file in that county for your primary residence.
5) Living trusts are generally not registered anywhere, so you will have to obtain a copy to see who the successor trustees are. That person is responsible for managing the trust and disbursing the property as stipulated in the trust. That person can be held liable for your actions or not actions.
6) Legal action may be necessary to obtain a judgment on whether your debtor owns the home. Perhaps then you could have the sheriff’s fee on the house (in California, under CPC 700.015), however you must be fully prepared before this is done. If you do this, it is best to obtain an appraisal and preliminary title report before filing the lien; so as not to delay obtaining your court order for the sheriff’s auction.
At the court hearing, all property links must be listed, along with all other relevant information. This will help the court decide to order the sale, if the father is deceased and there is documentation showing that the debtor has an interest in the property.
If the house was not transferred to a revocable living trust (if it had been, it would become irrevocable upon the death of the settlor, for example, the father). If the amount of the judgment is large; Consider hiring an attorney for a limited scope of representation, to petition on your behalf, perhaps to manage the parents’ estate.
In California, section 8461 of the probate code, subdivision (r), gives the judgment creditor a potential right to manage the father’s estate, especially if he has been deceased for some time (at least one year, and a death certificate would certainly help) and no other eligible person named in section 8461 has stepped forward to take charge of ordering the assets of the estate, which would presumably include the home.
Of course, if a court creditor steps in to manage the estate, someone (probably a family member) will yell and one of them will step up and manage the estate, which is all you want them to do anyway.
The family will hire an attorney, get a bond (for example, a $ 300K bond costs about $ 1K per year), and then do whatever you want: gather the assets, sell the house (with or without the consent of the occupant current) and disburse the proceeds. Hopefully, the debtor’s share of the parental estate judgment will cover the amount owed to you for the judgment. The probate surety bond protects you from harm.
It is not good for you to hear: “What else do you have, Mr. Creditor, do you have any proof of your allegation?” In court, you should only bring documents that the parties have signed under penalty of perjury. This is because the court can take judicial note of the existence of a document, but not necessarily of the veracity of the document. Otherwise, the court may decide that your documents are hearsay.
Becoming an estate administrator is not trivial and most people should hire an attorney. If you end up being the trustee of the parents’ estate (and presumably there was no revocable living trust that became irrevocable upon the father’s death), you must obtain unlimited authority to sell the estate’s assets, including the sale of the home (due to the Law of Independent Administration of Assets), so you can use the proceeds of the sale to satisfy your judgment.