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Removing your name from mortgage loan during/before divorce.

Richmond, VA |

In the settlement agreement, wife assumed all responsibilities of mortgage payment etc and asked for a quitclaim that I gave her. The deed is in her name now. We are waiting for divorce hearing. In the meantime, she has put the house on the market without my consent or knowledge (she told me that she was going to refinance, but that is her choice)
When I called the bank to remove my name from the loan, they stated she has to sign some forms to remove my name from the loan. What are my options if she refuses to remove my name.

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Attorney answers 4

Posted

You can have the Court appoint someone for to sign her name and it will be legally binding.

Attorney Williams practices FAMILY LAW throughout the State of California and may be reached at (831) 233-3558 and offers free consultations. The response provided in this forum is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes only and should not be relied upon without further consultation with a legal professional after all relevant facts are disclosed and considered. DANIEL S. WILLIAMS, ESQ. LAW OFFICES OF DANIEL S. WILLIAMS 500 LIGHTHOUSE AVENUE, STE. A MONTEREY, CA 93940 (831) 233-3558 -- OFFICE (831) 233-3560 -- FAX

Asker

Posted

I am pro.se. how could you do that without hiring an attorney.

Daniel Seth Williams

Daniel Seth Williams

Posted

Yes, but it may be difficult.

Asker

Posted

Of course. But what is the answer. Motion filing???

Posted

Usually, the spouse needs to refinance to get your name off the mortgage. The divorce decree cannot force a mortgage company to remove and only make one party liable.

Asker

Posted

Thanks. She was supposed to refinance but changed her mind. Can I file a motion and ask the court to order her either to include me in decisions in matters of the house (sale, renting, modifications etc) or assume the loan and release my name.

Posted

You really need to sit down with an attorney to review your agreement. Was there any reference to refinancing in the agreement? Did it state that you waived your interest in the house?Assuming the responsibility of the mortgage is not the same thing. If your agreement does not require to remove your name, you may have a difficult time removing your name. Please see an attorney to review your agreement to see if there is any way to address this at your final divorce hearing.

Asker

Posted

Thanks. You are right about putting in the final decree. In PSA no specific reference was to refinancing or selling. spouse was to live in the house and pay the mortgage and taxes etc. With refinancing my name would be automatically removed. I am thinking to write my spouse's attorney to provide legal guidance to his client. Suppose, I am out of the country during closing. This could be a problem for the seller because both parties have to sign the sale papers. Any comments. Thanks for the info

Posted

As a couple of the previous attorneys have mentioned, your enforcement options in regard to the mortgage depend on what specifically is provided for in the settlement agreement. If it only says that she shall be responsible for the debt obligations on the house (and, at the very least, it also hopefully provides that she will "indemnify and hold harmless" for any losses you may incur as a result of her breach), then there is no re-financing provision TO enforce. If there is a refinancing requirement (which you don't mention in your question), then your recourse would be to seek the court's assistance in enforcing the provisions of your agreement (for which I would strongly recommend obtaining counsel if you do not already have an attorney -- if you do have an attorney, then you should be posing these questions to him/her!).

Since you have given her quit claim title to the property without requiring a refinancing as a condition precedent, she now owns the property and can do with it whatever she will -- including selling it without your "consent or knowledge". Unless the Quit Claim Deed conveyed something other than a fee simple interest in the property, you have no say in the matter of the sale. This is not to say that you may not have some recourse if she sells the property for less than the current outstanding mortgage -- that issue would be answered by the specific terms contained in your particular settlement agreement. However, as a practical matter, I don't believe that she can short sell the property without the mortgage holder's consent. Additionally, assuming that the current mortgage that you are a co-obligor on is satisfied and extinguished by the sale of the property, your current propblem of still being on the mortgage goes away!

It sounds like what you need is either: (1) review this issue and your concerns with your current attorney or (2) if you did not have an attorney representing you/assisting in the drafting of the "separation agreement", get one ASAP!

This response does not create an attorney-client relationship and is intended for general information purposes only.

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