A creditor’s attorney called and asked for help collecting a judgment against a man who jointly owned with his mother a Florida property in which his mother resided as her homestead. The son resided in a different property he owned with his wife.
The attorney wanted to know if he could foreclose on the son’s interest when the mother used the property as her homestead. He suspected that a court would not force the sale so as to deprive the mother of her home. The also felt reluctant to force the innocent mother out of the house because of her son’s debt.
The creditor has the legal right to foreclose on the debtor son’s interest. The court should order a foreclosure sale and direct the clerk to give 50% of the proceeds to the son’s creditor. Neither the court nor the creditor attorney should accept responsibility for the mother’s misfortune. The son is the person who jeopardized his mother’s home by first, agreeing to share legal title of his mother’s house, and second, by incurring the liability which led to the judgment.
I told the creditor attorney that if I were representing the debtor and his mother I would have suggested the son quit claim deed his interest to his mother before a judgment was entered. This quit claim deed would constitute a fraudulent transfer to the mother, but the judgment would not have become a lien on the house because the debtor’s name would not have been on the title when judgment was entered. The creditor then could have sued the mother for the value of the house interest conveyed by the son. Even if the court entered a money judgment against the mother for the son’s half of house value the judgment could not have forced the sale of the house. The .
Now it’s too late for the son to deed his interest to his mother because the transfer would be subject to the creditor’s recorded judgment.
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