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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
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Experience:  Attorney with experience in family law.
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My ex's attorney is claiming that I must waive my rights

Customer Question

For Lucy My ex's attorney is claiming that I must waive my rights of homestead due to the property rights of the mortgagee. What does this have to do with a simple deed change from warranty joint tenants to quitclaim tenants incommon?,For Lucy My ex's
attorney is claiming that I must waive my rights of homestead due to the property rights of the mortgagee. What does this have to do with a simple deed change from warranty joint tenants to quitclaim tenants incommon?
Submitted: 1 year ago.
Category: Family Law
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today.

Mortgaging a property doesn't waive homestead rights. Transferring ownership from joint to sole ownership should not waive homestead rights. You may want to have a local attorney speak to them for you. There is no benefit to you in waiving your homestead rights. And if they really were automatically waived, as he's saying, there would be no reason to have you sign a waiver- that document would be unnecessary.

Customer: replied 1 year ago.
His response is the first part.Sent using Hushmail----- Forwarded message from "Brian Snow" -----
Date: Thu, 19 Nov 2015 17:04:32 +0000
Subject: Re: Re marketing and finances
To: "=?utf-8?Q?*****@******.***?=" , "=?utf-8?Q?*****@******.***?="DDear Ms. DeGelleke,Under the terms of the divorce decree, the Amherst property was permitted to be Peter’s residence as well as your own and he still designates it as his domicile as he has paid the taxes, votes and the umbrella property insurance covering the property which he maintains still states. Accordingly, the residential declaration on the deed was accurate.Please recall that back on 5 & 6 November 2015 you specifically requested the Quitclaim Deed reference that the divorce rights not be waived which was included as an accommodation. Strangely, your deed is devoid of such reference. As constructed, your deed is not improper and needs to waive your homestead rights in favor of the change of title and the rights of the Mortgagee with the property. Since you have failed to properly execute the Quitclaim Deed that has been negotiated and presented to you, there is no longer any alternative but for Peter to resort to his legal remedies seeking contempt and the appointment of a commissioner.Thank you,
R. BRIAN SNOWSent from Windows MailFrom:***@******.***
Sent: ‎Thursday‎, ‎November‎ ‎19‎, ‎2015 ‎9‎:‎04‎ ‎AM
To: ***** ***** Snow,***@******.***Dear Attorney Snow,
It should be consistant with NH practice as per This RSA. http://www.gencourt.state.nh.us/rsa/html/XLVIII/477/477-28.
I am amenable to signing a deed transfer that adheres precisely to this. ( though I believe the deed transfer I sent did include these elements.) The deed transfer you provided did not include the transfer of rights. It is of concern to me that you are insisting on a forfeiture of homestead rights rather than a simple transfer. The divorce decree does not specify that. In addition the divorce decree states that the one asked for the deed is to provide it. And I am doing my best to do that. This is the format, and I will fill it out if that is what you prefer.
Melissa DeGelleke(Form for quitclaim deed)__________, of __________ County, State of __________, for consideration paid, grant to __________, (complete mailing address) __________, of __________ Street, Town (City) of __________ County, State of __________, with quitclaim covenants, the __________ (Description of land or interest therein being conveyed: incumbrances, exceptions, reservations, if any) __________, (wife) (husband) of said grantor, release to said grantee all rights of homestead and other interests therein.
(Here add acknowledgment)Source. 1951, 178:6. RSA 477:28. 1965, 125:3. 1971, 179:7. 1981, 303:5. 2006, 7:1, eff. April 11, 2006.Sent using HushmailOn November 18, 2015 at 8:14 PM,***@******.*** wrote:
>
>Hello Ms. DeGelleke,
>
>Although I received an altered deed which you have proceeded to
>sign, it
>was not the deed sent to you or consistent with the agreed upon
>terms or
>consistent with New Hampshire practice. Accordingly you have
>left us with no
>alternative but to seek judicial intervention at this point.
>
>R. BRIAN SNOW
>
>
>In a message dated 11/18/2015 6:21:31 P.M. Eastern Standard Time,
>*****@******.*** writes:
>
>Dear *****
>I assume you have recieved the deed change. Please make sure to
>send it
>back to me ups or fed ex if possible. I will submit to the
>appropriate
>department as soon as it arrive.
>Melissa
>
>
>
>Sent using Hushmail
>
>
>On November 17, 2015 at 12:10 PM,***@******.*** wrote:
>>
>>Thank you,
>>
>>R. BRIAN SNOW
>>
>>
>>In a message dated 11/17/2015 10:55:17 A.M. Eastern Standard
>Time,
>>
>>*****@******.*** writes:
>>
>>
>>
>>
>>
>>Sent using Hushmail
>>
>>
>>----- Forwarded message from ***@******.*** -----
>>Date: Mon, 16 Nov 2015 21:42:35 +0000
>>Subject: Re marketing and finances
>>To: ***@******.***
>>
>>Drew Attorney Snow,
>>I have ordered a sign for the end of the driveway per Attorney
>>DeGelleke's
>>request. I am in the process of retrieving the necessary
>>financial
>>statements as requested by Attorney Degelleke. I will provide
>>this information as
>>soon as I have complied it. The first compilation will be from
>>August 2012
>>to date. I hope to be able to obtain the statements necessary
>by
>>Friday,
>>but am waiting on Citibank.
>>Meliss
>>
>>
>>Sent using Hushmail
Customer: replied 1 year ago.
This is not his primary residence and the registrar of deeds told me he must use his current mailing address. He hasn't lived here for over a year. So I am not sure why they are calling it his residence?
Expert:  Lucy, Esq. replied 1 year ago.

I'm sorry, but reading a document and telling you how to respond would be considered giving legal advice, which is beyond the scope of this site.

I don't know why he'd still be calling it his residence if you live there, unless he has kids he wants to be able to go to school in that district (kids that aren't also yours), or he's living in another state and wants to make sure he can't be sued there. Or he may be trying to take tax deductions related to the property?

Customer: replied 1 year ago.
In his attorneys email me to, the last paragraph mentions the mortgagee... Why? What reason does he have for telling me that I must give up my homestead rights and all other rights associated with the deed, because of the mortgages property rights?
Customer: replied 1 year ago.
Please take a look at that email
Customer: replied 1 year ago.
I am not asking how to respond I am asking what the mortgagees have to do with a transfer from warranty to quit claim?
Expert:  Lucy, Esq. replied 1 year ago.

I'm sorry, but I cannot read a document and tell you how to respond. It's illegal.

The general answer to any question regarding why opposing counsel would tell you something is: Because he doesn't represent you. His job is to vigorously represent his client and to get the best possible outcome for his client, with zero consideration for how that affects you as the opposing party. To know more specifically, you'd have to ask him - but take his answer with a grain of salt. He doesn't work for you. He's not helping you. And you can't trust that he's looking out for your best interests, because he's not.

All people have to do to transfer from a warranty deed to a quit claim is to fill out a quit claim deed where you state you're transferring ownership. The fact that you have a mortgage doesn't change that, because the parties aren't changing. It doesn't make any sense that he's asking you to waive your homestead rights when you still live on the property.

Customer: replied 1 year ago.
The mortgagee is countryside or Bank of America. Do they have any property rights?
Customer: replied 1 year ago.
Legally how can he claim it as his residence unless he actually lives here? Regardless of paying taxes etc...
Expert:  Lucy, Esq. replied 1 year ago.

They have the right to foreclose if you don't pay the mortgage, but no general rights to possession or use of the property as long as you're paying.

He shouldn't be claiming it's his residence if he doesn't live there.

Customer: replied 1 year ago.
his attorneys referring to the mortgagee is just crap?
Customer: replied 1 year ago.
Legally
Customer: replied 1 year ago.
This is what he is saying>Any change to the property title necessarily effects an existing
>property
>mortgage under the circumstances
>Please feel free to call the Mortgagee bank as sometimes the terms
>of the
>mortgage expressly provides that the mortgage will be called if
>the title
>changes without the consent of the financing institution.t
>
Customer: replied 1 year ago.
How does changing the deed change the title?
Expert:  Lucy, Esq. replied 1 year ago.

That part's true. You do need the bank's consent to change the deed. But there's no reason for them not to give it for this type of change, because the same people will own before and after the transfer.

With real estate, the deed establishes title.

Customer: replied 1 year ago.
to switch the deed to quit claim the bank must approve?
Expert:  Lucy, Esq. replied 1 year ago.

Yes, but it's mostly a formality. It would be a problem if one of you was trying to transfer your interest to a third party, but with the same names on the deed before and after, you shouldn't have a problem.

Customer: replied 1 year ago.
from a legal standpoint can my ex use this home address even though he does not live here, just because he pays taxes and insures his cars under this address?
Expert:  Lucy, Esq. replied 1 year ago.

He shouldn't be insuring his cars at that address, either, if he doesn't live there. That could be considered insurance fraud. The insurance company could actually refuse to pay a claim or cancel his policy if they find out he doesn't live there.

But there aren't any general laws about using a particular address, so you'd really need to figure out why he's claiming the house as his residence to determine if it's illegal (unless he's doing it to get cheaper insurance).

Customer: replied 1 year ago.
if. Sign my name to the document stating he is of this address am I an accessory to insurance fraud?
Expert:  Lucy, Esq. replied 1 year ago.

No, because I'm just speculating as to what he's doing and why. It also depends on if you're currently using any of the cars, because then it would be fine (for that car).

Expert:  Lucy, Esq. replied 1 year ago.

You may want to check the divorce decree to see if it says you're both entitled to claim the property as your residence, because that's odd.

Customer: replied 1 year ago.
No he has no cars here. This is not his address. If I sign a document that says this is his address how is that not fraud in general? Is it his address if he does not live here?
Expert:  Lucy, Esq. replied 1 year ago.

Why would you be signing his insurance contract?

Expert:  Lucy, Esq. replied 1 year ago.

The only thing you said you've been asked to sign is a deed transferring ownership from joint with a right of survivorship to tenants in common. That has literally nothing to do with who lives on the property.

Customer: replied 1 year ago.
Actually the deed states this person who is from "address" and this person who is from " address" my ex is using this as the address. The registrar of deeds told me that the Grantees must provide their current mailing addresses. So when I sign that transfer I am putting my name to the addresses used by both of use by signing it... Correct? If I know he is not of this address and I sign the deed, I am agreeing to it?
Expert:  Lucy, Esq. replied 1 year ago.

You can insist that he provide his current mailing address on the deed before you sign it.

Customer: replied 1 year ago.
Is it his legal right to provide this as his address because he pays taxes her, co owns the property and has the right to reside here?
Expert:  Lucy, Esq. replied 1 year ago.

Again, that's too general. "Rights" are very narrow, and are mostly what's outlined in the Constitution, which doesn't address this scenario at all. I can't point to any law that says "It's illegal to tell someone you live somewhere where you don't." There aren't general laws that prohibit lying. If he is an owner and has the right to live there, there's no legal reason he can't use the property as his mailing address.

Customer: replied 1 year ago.
He doesn't live here. And he has specifically told me his mailing address is in Concord ma
Expert:  Lucy, Esq. replied 1 year ago.

I can't point to any specific law he's breaking unless you can give me more information about why he's claiming to live at your place in NH rather than his place in MA.

Expert:  Lucy, Esq. replied 1 year ago.

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