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Can a creditor file a property lien on a jointly owned mortgage in NC? The credit card debt is in my name only.

Elizabeth City, NC |

Can a creditor file a lien on a joint mortgage account due to my credit card debt living in NC? My husband isn't on any of my accounts. They are in my name only. I lost my job. Can they take our home away from us if we both are paying the mortgage?

Attorney Answers 2

Posted

A creditor would not file a lien against a joint mortgage account. A creditor can sue you and get a judgment against you which would attach to any real property held in your sole name or held jointly with other people OTHER than your spouse. Actually it could still attach to real propertyheld jointly with your spouse if the deed to your property specifies some tenancy other than tenancy by the entirety. Here in NC any property that is acquired while one is married and that is deeded to both the husband and wife is protected by something called a tenancy by the entirety which is a legal fiction that neither you nor your souse own the property but that the marital entity, made up of you and your spouse, owns the property. Only joint debts can attach to property owned by a tenancy by the entirety so if the credit card(s) that are suing you are just in your name or just in your spouse's name, the judgment will not attach and they could not take your house. You should take a look at your deed to your house and see how they listed you as grantee. If it says to John Doe and wife, Mary Doe, that's fine and even though it does not specifically mention "tenancy by the entirety" you still have one. If, however, it specifies some other kind of tenancy such as "Joint Tenants" with or without right of survivorship or "tenants in common" or just deeds it to John Doe, a married man, then you will likely have a problem. If you don't have a copy of your deed, you should be able to get one for a modest fee from the register of deeds or online from the register of deeds for your county if they have a website, which they probably do. If you get it online, it probably won't cost you a penny. You may want to consult with an attorney in Elizabeth City if you have questions.

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7 comments

Asker

Posted

I just looked on our deed of trust and it says Grantee Sean (LastName) and wife (myname) and our address. Should we be okay then?

Asker

Posted

And all the credit cards are in my name only.

Derek R. Caldwell

Derek R. Caldwell

Posted

It is not on your deed of trust. That is your mortgage. When you closed on your house you should have been given a copy of the deed to the property. It would likely have been called a "General Warranty Deed" or just a "Warranty Deed". These are different documents from a deed of trust which is the document that gives the mortgage company the right to foreclose in the event you don't pay. Find the deed which lists the people you acquired the property from as the "Grantor" and you as the "Grantee" and see how it lists you as Grantee.

Asker

Posted

I do not see any document called General Warrenty Deed or Warrenty Deed. How can I get this?

Asker

Posted

I found it. It says grantee My husband name Sean and wife, Alice and list the address. Is this bad or good?

Asker

Posted

It is the North Carolina General Warrenty Deed and says Grantee Sean (my husband) and wife (my name) then our address.. So is this good or bad?

Asker

Posted

What about when the property was purchased jointly and then retitled into a revocable trust for estate planning purposes?

Posted

Liens are filed against property, not against debts, such as mtg accounts.

In an entireties property, as atty Derek R. Caldwell noted, liens may have limited effect.

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2 comments

Asker

Posted

Thanks for answering this helps alot :>)

Gary D. Bollinger

Gary D. Bollinger

Posted

Attorney Caldwell had a great answer for a fellow lawyer, but brevity is the soul of Avvo advice.

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