Phillip William Gunthert

Estate Planning

Guardianship & Conservatorship Estate Administration, Health Care Directives, Trusts, Wills

Probate

Probate Administration, Probate Litigation, Will Contests

Business Law

Business Contracts, Business Dissolution, Business Finance, Business Formation, Business Litigation, Franchising, Mergers & Acquisitions, Partnership & Shareholder Disputes

Real Estate Law

Commercial Real Estate, Condominiums, Easements, Eminent Domain, Homeowners Association, Land Use & Zoning, Mortgages, Neighbor Disputes, Residential Real Estate, Water Law

Elder Law

Consumer Law

Class Action, Lemon Law

• General Practice

• Free Consultation
• Credit Cards Accepted
• Rates, Retainers and Additional Information
  Hourly and Flat-fee $0-$250 hour

Florida

Since 2011

The Florida Bar  # 0087575

Member

Current

Q. Mortgage co says mortgage from inherited property in Florida from Mom can't be assumed by 4 children, must be refinanced

July 27, 2022

A: Generally, and specifically the mortgage company is likely wrong. The federal Garn-St. Germain Depository Institutions Act of 1982 prohibits enforcement of a due-on-sale clause after specific kinds of transactions, like a property transfer to a relative upon the borrower’s death or a transfer from a parent to child. (12 U.S.C. § 1701j-3). So, if the property transfer is covered by the Garn-St. Germain Act, you can keep making payments on the loan—and the transfer can’t be the basis for acceleration and foreclosure. You can also assume the loan if you want. The Consumer Financial Protection Bureau (CFPB) issued an interpretive rule that helps an heir assume a deceased borrower’s mortgage after inheriting a home. (In the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Congress established the CFPB and gave it the authority to adopt new rules to protect consumers in mortgage transactions.) Specifically, after the original borrower dies, the person who inherits the home may be added to the loan as a borrower without triggering the ability-to-repay (ATR) rule. The catch is often that the inheriting person/s relatives must live in the home (The Garn-St. Germain Depository Institutions Act of 1982 gives relatives inheriting a mortgaged home certain rights. If inheriting a mortgaged home from a relative, the beneficiary can keep the mortgage in that relative's name, or assume it. However, relatives inheriting a mortgaged house must live in it if they intend to keep its mortgage in the deceased relative's name. Only related inheritors can keep mortgages in the names of the deceased borrowers). I will note, mortgage company always says it must be refinanced or assumption fee paid, if you inherited it via probate, that simply is not true, fight them on this with the law above brought to their attention. If probate has not been done and home declared homestead or otherwise transferred that also needs to be timely addressed and done.

Q. My husband his brother and their mom inherited a house. If something happens to my husband do I get his share.

July 5, 2022

A: Maybe, if your husband does proper estate planning and or creates a deed naming you, then it is possible. You would have to start by viewing the current deed and how it is titled. Also, it depends on whether you have a prenuptial and or postnuptial agreement. It is not automatic that you would get your husband's share, upon reviewing everything an attorney would be able to make a better assessment on matters. Generally, if a spouse does not keep assets separate, and your husband could keep this asset separate potentially, and based on what the deed precisely says, you may or may not have a right to his share if anything were to happen to him.

Q. What kind of lawyer do I need? And what are the charges?

June 29, 2022

A: If you agree to pay a percentage of recovery you are looking at 33-40% usually if it is a contingency matter at most law offices. If the check is in your LLC name that is closed and no longer exists, you could have an attorney look into opening it up and getting it paid up with the Florida Department of State as an option. Otherwise, you are stuck with a law office attorney hourly fee, depending on the attorney it could be $400-$550 per hour or more potentially and they will likely request a substantial retainer payment. No matter what, an attorney is going to have to review everything and see what needs to be done precisely.

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