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Help! I’m being foreclosed on, but I never owned the property!

We are occasionally contacted by people who are named in a foreclosure case, but they are not owners to the property and have never been owners to the property. Why were they named as defendants in the foreclosure action, and how do they get removed from the case? If they were never an owner of the property it seems like it would be simple to just contact the plaintiff in the case and have the person removed. This isn’t as easy as it may seem. This person needs to do what is called Disclaiming their rights to the property.

Before I go into the rules around disclaiming interest in property, I should state that only someone who originally had no legal interest in the property can disclaim interest in the property. This means that someone who is on the Note or Mortgage is not allowed to disclaim their interest. However, persons who are not on the Note or Mortgage but are named in the lawsuit, can potentially disclaim interest. These people might be heirs of a deceased party, or someone over the age of 18 that is living on the property. Just as long as you are not on the Note or Mortgage and you follow the statutes, you should be able to disclaim your interest and get removed (dropped) from the case.

Florida Statute 739.104(1) states, “A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment.” This statute allows a person to state that they hold no interest in the property and that they wish to be removed from any possible litigation. Typically, this is done by a person who may have inherited all of or part of a property or someone who may be named in a Will granting them specific property rights. For our purposes we will use this as someone who is named in a Foreclosure case but is not on the Note or Mortgage.

For a person to disclaim any property rights or interest in the property, the Statute lays out specific guidelines as to how it must be done. Florida Statute 739.104(3) states, “To be effective, a disclaimer must be in writing, declare the writing as a disclaimer, describe the interest or power disclaimed, and be signed by the person making the disclaimer and witnessed and acknowledged in the manner provided for deeds of real estate to be recorded in this state.” What this means is that it must be a letter, stating that you are disclaiming interest in a particular property, with the legal description of that property, and it must be signed by you and two witnesses in front of a Notary Public.

Once the disclaimer has been signed and notarized, it then must be recorded with the Clerk of Court for the county in which the lawsuit has been filed. Once it has been recorded, our firm will reach out to the attorneys representing the plaintiff and request for our client to be removed from the case based on the disclaimer. Sometimes this doesn’t work though, and we must file a motion with the court asking to have our client removed from the case. As long as the guidelines from the statute have been followed and the client is not legally obligated to the Note and Mortgage, the court will agree to having the case dismissed as to that client.

We have handled many cases like this and are happy to customize the disclaimer and representation specifically for you. Here at the Haynes Law Group, P.A. we handle Foreclosure Defense and Foreclosure or Tax Deed Surplus cases. If you need representation anywhere in the state of Florida, please give us a call. We handle these cases in every county in the state of Florida and will be happy to give you a free consultation.

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