If you are the son and executor of your parents' estate can the mortgage lender force the sale of the real property after finding out your parents are deceased being the orginal borrowers on note?

Answer 1

A mortgage lien can be sought to be foreclosed pretty much for any reason, because the provisions can be enforced for the tiniest deviation, and can favor the lender-mortgagee. Remember, though, all the lender-mortgagee cares about is recouping its investment--they cannot foreclose because of the simple reason of the debtor-mortgagors' death, but they can justify their concern based on a genuine and reasonable belief that payment is no longer forthcoming, if one reasonably exists. Prior to probate, the rights and obligations accrue to the estate(s) of the debtor-owners. However--and it is a big however--an affirmative defense, that is a defense tending to negate the validity of the claim, to a mortgage foreclosure action and action for payment on the linked promissory note, is payment.

In jurisdictions where a judicial ruling and judicial sale is required, the court will not force a sale where a default has not occurred, and will not enter summary judgment if there is are genuine issues of material fact, such as whether or not a default has truly occurred. Notice is usually a condition precedent to maintaining an action--that is, that notice of attempts to collect payment have been proven to have been given. State consumer-protection statutes also may be operative. The estate will get its day in court before the lender-mortgagee can put the estate out of its property interests in the real property, especially now that interests in the estate's heirs at law and/or devisees attach.

You may have a more pressing problems, and different problems as to actions and remedies, in jurisdictions where lender-mortgagees can act unilaterally, but even then you are still entitled to due process of law. Check with an attorney at law.