Can I sue a co-borrower for payments who has been removed from deed via quitclaim but is still listed on the mortgage?

Asked about 1 year ago - Desert Hot Springs, CA

Borrower and Co-borrower who were never married bought house and lived in it together for 6+ years. Co-borrower moved out of home about 3 years ago when relationship ended and borrower has been living in home and making all payments. Co-borrower recently filed for child support which will not allow borrower to afford payments on the home. Can the borrower move out of the home, rent a home for less money, and sue the co-borrower for their half of the mortgage that would be due? Borrower has excellent credit, which is required for the future of his occupation and would have future earnings severely damaged by a foreclosure. The home would be listed for a short-sale but until sold payments would need to be made on the home.

Attorney answers (2)

  1. Michael Raymond Daymude


    Contributor Level 20


    Lawyers agree

    Answered . “Can the borrower move out of the home, rent a home for less money, and sue the co-borrower for their half of the mortgage that would be due?” Since you have been sued for child support, my best advice is for you to obtain the services of a family law attorney in your area. That attorney will be able to answer all your questions and obtain the best “deal” for you, considering all the circumstances.

    In an attempt to answer your question, the answer is yes. You can do that. But, I don’t think you have considered all the implications. You would have to allege that the other party still retains an interest in the house. And, if so, the other party would have claims against you for the fair rental value of the premises during the time you lived there alone. The other party would also be entitled to ½ the rental payments going forward. This, of course, is contrary to your conduct and the QC deed.

    Again, I strongly suggest you retain local family law counsel. If I were you, I would be considering ways to work with the other party for the good of your child – not trying to get back at them because they are asking you to support your offspring.

    -- Michael

    Michael R. Daymude, Attorney at Law
    Sherman Oaks Galleria – Comerica Bank Building
    15303 Ventura Boulevard, Suite 900
    Sherman Oaks, CA 91403-3199
    (818) 971-9409

    SINCE 1974. Answers provided by me are for general information only. They are not legal advice. My answers assume... more
  2. Robert Bruce Laing

    Contributor Level 7

    Answered . This is a two-part question that may require two separate lawsuits. First, the family law part. It sounds like you were unrepresented in the family law matter when child support was set. If that is true, your hardship caused by the move-out and withdrawal of financial support was likely not properly considered by the court when it reviewed your Income and Expense Declaration. Consult with a family law attorney immediately to see if the court might modify the child support order. Second, even though your co-borrower moved out, leaving you to pay the entire mortgage, because you had the use of the entire property, your co-borrower has an offsetting claim for half of the fair market rental value of the property. Check with a real property lawyer, and consider pursuing a claim against your co-borrower in small claims court. To preserve your credit rating, your best plan may be to rent out the property, decrease your expenses by renting cheaper living quarters, and then reset child support. You also have some leverage in a short sale because your mortgage is a purchase money mortgage, which means that you can walk away from the property without endangering your other assets. A real estate lawyer would be a big help. Good luck.

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