My co worker went to try to refi her house. She and her husband are separated and she needs a lower house pmt. When they bought the house they weren't married yet and had it titled as a single person, joint tenants in common. They had since gotten married and then separated. When she asked about refinancing she found out that her estranged husband had taken out a 2nd mtg. without her knowing it and had it titled as a single person when he is still legally married to her. They told her if she wanted to refi she would have to pay off the 2nd as well. Can he legally do that?
2007-08-19 05:05:54 · 6 answers · asked by Anonymous in Business & Finance ➔ Renting & Real Estate
The key here is title-if your friend is on the title, then there would have been NO way that the ex would have been able to take out the 2nd without her knowledge because even though she's not on the loan, she would have to sign the deed that allows the lien for that 2nd mortgage.
Similarly, if the ex is on title, then there's no way that your friend will be able to refi without the ex signing a deed allowing the refi.
No, your friend is not obligated to pay on the 2nd (as long as her name is not attached to the loan) HOWEVER, if he defaults/forecloses then it creates a problem.
The only solution I can see would be to have your friend refinance, then ask the 2nd mortgage lender to "subordinate" their lien. This would allow your friend to be able to refi without paying off the 2nd. The 2nd would still remain on the property, but at least your friend won't have to pay it off. Unfortunately, a lot of mortgage companies don't like to subordinate, but there are a few that will.
In regards to the 2nd being on the property without your friend's knowledge--unlikely unless: 1. There was some sort of fraud involved, 2. There was a quit claim deed that removed your friend from title(your friend would have been required to sign the quit claim) 3. The lender screwed up and didn't get your friend's permission to put that lien on the property. I don't know what your legal course of action would be if any of the 3 things above happened.
2007-08-19 05:37:47 · answer #1 · answered by Kite Fanatic 2 · 1⤊ 0⤋
It is possible to take out a second, depending on the state you live in depends if the spouse is required to sign.
It sounds like the house was originally titled in both names as individuals, joint tenants. When the husband took the second out, he either still claimed to be single, OR the state does not require the spouse's signature.
Divorce is ugly, either way if your friend wants to refinance the house, the 2nd mortgage needs to be paid off. If she plans to keep the home without the husband, she needs to qualify on her income/credit alone. If they are still married while she does this, then she should have something in writing that if she refinances the home in her name only, he will not dispute the equity as part of the divorce settlement.
Your friend should also mandate repayment of the 2nd mortgage to her if she can prove she did not know about it OR benefit from it.
Hope this helps, and good luck to your friend
2007-08-19 05:43:43 · answer #2 · answered by Anonymous · 0⤊ 0⤋
if the bought it together and not married its joint tenant's in common not sure what a single person title would be since they both would have equal title to the whole
now did the husband forge the wife signature on the second note? or did the second give the note based solely on the husband equal half interest on the title
2007-08-19 05:31:48 · answer #3 · answered by goz1111 7 · 1⤊ 0⤋
If he got a second mortgage without her name on it, how can she be responsible?
You said he is a joint tenant. Was it a joint tenancy with right of survivor-ship ? In some states, the survivor ship feature attaches automatically when title was held as "joint tenants". However, some states doesn't attach the survivor-ship unless it is expressly stated in the instrument. If she has a joint tenancy, she is giving him an interest in the home.
Do you think your friend tell you the whole story?.
2007-08-19 05:27:49 · answer #4 · answered by Connie 3 · 1⤊ 0⤋
Get a lawyer to straighten this out. Something isn't right.
He could mortgage it without her, but only to the extent he owned, or just half. No mortgage company in their right mind would do that.
He couldn't change the title without her, unless she wasn't on it in the first place.
Something isn't right here, you need a lawyer to get to the facts.
2007-08-19 06:03:26 · answer #5 · answered by open4one 7 · 0⤊ 0⤋
yes as a spouse he can do that. sorry but she now has a 2nd mortgage to contend with.
2007-08-19 05:16:07 · answer #6 · answered by Jan Luv 7 · 0⤊ 0⤋