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To sum up the situation with relevant facts, we bought a house in the mid 2000s from a woman who had ostensibly granted power of attorney to her son. The transaction was through the typical real estate process, with the house being listed through an agency, financed by a bank, with us represented by a real estate agency, title search, etc. It wasn't a "for sale by owner" (FSBO) situation or a cash deal or anything like that. Everything should have been vetted and done according to procedure. Since we moved in, we refinanced once with a different bank, and the mortgage has been transferred a couple of times from one company to another as well.

This year, we tried to sell our house and the title company said that the house could not be transferred to the buyer because there was no record that the son who had signed the house over to us had power of attorney for his mother. The title attorney that our real estate agency has on retainer did some research and found that the house was not listed as part of the woman's assets as part of the probate process (she died a few months after we moved in). His advice was to hire an attorney to reopen the estate, have the daughter who was the original executor for the estate be reappointed, have the house listed under the assets of the estate, and have her transfer it to us.

So far, we have not found a probate attorney who is willing to take on the case, once they hear the facts about it. I don't know if it's a matter of complexity, not worth the time, they think it's a losing case, etc. At this point, we are not even sure what the next steps are. We are also worried about being forced to move out if the house it's legally in our name. So, my questions around this are as follows -

To start with the mortgage company, could they even actually grant us the title to the house if we were able to fully pay off the mortgage?

If the mortgage company can't do so, and they now have a loan on an unsecured property, would it make sense to contact them to see about putting payments in an escrow account instead until this is somehow resolved?

If the mortgage company learns of the issue with the title, do they have legal recourse against me, the "seller," the company who sold them the mortgage, what?

If we simply stopped making mortgage payments, because this becomes impossible to sort out, what would that look like in terms of a hit to the credit rating, could that be appealed, etc?

Could the living children of the deceased reopen the estate and file a claim to the house, and then being able to force us to leave? (this would obviously result in a lawsuit)

Is this process with the estate something that has to wholly be pursued through an attorney, or could we do part/all of the work ourselves? (given that no one seems willing to take the case)

We are, in theory, only a few years away from being able to claim squatters' rights on the property. Would it be generally be possible just to not pursue this any farther and instead claim the property through that process?

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  • Would it be useful to know if the payment you made for the house was somewhere in the list of assets?
    – DJohnM
    Nov 2 '21 at 21:25
  • Where's the son?
    – DJohnM
    Nov 2 '21 at 21:27
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The mortgage company cannot grant you title. The basic logic of your relationship to the mortgage company is that you borrowed a bunch of money, using the hose as collateral, and you owe them that money so you have to pay. If you don't pay, they can take you to court, and normally they would get the court to make them the owners of the house, which they can then sell to recover their losses. Not paying the debt is not a good idea. You can always ask them to put the payments in escrow, but I doubt they would agree since ultimately you owe them that money.

What is supposed to happen is that the title insurance company pays for their mistake, whatever it was. It is possible though that the error was the county's, in which case the news is all bad (ask your attorney about a case I believe in Columbus, around 2010, where the county screwed up the paperwork and the buyer ended up with no recourse – as I recall, the buyer had no title insurance).

Ohio law does not require recording title transfers, therefore it is quite possible that the transaction was not properly vetted through attorneys. I'd give the standard admonition "ask your attorney", but all I can suggest is to try a better attorney.

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  • "What is supposed to happen is that the title insurance company pays for their mistake, whatever it was." This should be the lynch pin. The title company should take whatever legal action necessary and pay whatever it takes to give you title, that is the whole point of title insurance.
    – ohwilleke
    Nov 2 '21 at 18:53
  • We pursued that route, but the title company went out of business years ago. One thing I wasn't clear about when researching this earlier is if the title company retains and is responsible for that policy, if it is held by someone else, or if it is guaranteed by another company? Nov 2 '21 at 19:17
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    Usually a company's assets are acquired by a successor, who them bears legal responsibility. They are required by law to have a (large) reserve, which is deposited with the state (with the superintendent of insurance).
    – user6726
    Nov 2 '21 at 20:22

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