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Ask Maverick Your Own Question
Maverick
Maverick, Attorney
Category: Legal
Satisfied Customers: 5766
Experience:  20 years experience as a civil trial and appellate lawyer
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I am wondering how to handle a lien that is on my home. My

Customer Question

Hello. I am wondering how to handle a lien that is on my home. My husband took out a equity loan during our marriage I did not know about or sign for. I am on the home but did not consent to his loan. I asked for a release of lien in order to get my refinance going but they wont saying it is my debt. They sent a cancellation of debt and all that and now are going back on what they cancelled. PLEASE HELP!!!
Submitted: 1 year ago.
Category: Legal
Expert:  Maverick replied 1 year ago.

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1. Is the loan still outstanding? For how much?

Customer: replied 1 year ago.
50,000 and they sent something called a Cancellation of Debt letter terminating all debt.
Customer: replied 1 year ago.
Because he died.
doesn't the spouse have to consent on a equity loan of they are on the home or married?
Expert:  Maverick replied 1 year ago.

Yes, normally, it is nearly impossible to get a home equity loan on a jointly owned or marital residence without both spouses' consent.

You may have a claim against the lender.

I am looking further into this.....

Customer: replied 1 year ago.
claim against a lender? how do I do that? oh thank you thank you really.
Customer: replied 1 year ago.
the bank says their is no law in Nevada that says "spouse consent" I just need to prove that we have such law.
Expert:  Maverick replied 1 year ago.

THE LAWS THAT APPLY APPEAR TO BE AS FOLLOWS:

Nevada Constitution Art. 4, § 30. Homesteads: Exemption from forced sale; joint consent required for alienation; recording of declaration A homestead as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists; but no property shall be exempt from sale for taxes or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon; Provided, the provisions of this Section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife ...[.]

NRS 115.010  Exemption from sale on execution and from process of court; amount of exemption; exceptions; extension of exemption.

1.  The homestead is not subject to forced sale on execution or any final process from any court, except as otherwise provided by subsections 2, 3 and 5, and NRS 115.090 and except as otherwise required by federal law.

2.  The exemption provided in subsection 1 extends only to that amount of equity in the property held by the claimant which does not exceed $550,000 in value, unless allodial title has been established and not relinquished, in which case the exemption provided in subsection 1 extends to all equity in the dwelling, its appurtenances and the land on which it is located.

3.  Except as otherwise provided in subsection 4, the exemption provided in subsection 1 does not extend to process to enforce the payment of obligations contracted for the purchase of the property, or for improvements made thereon, including any mechanic’s lien lawfully obtained, or for legal taxes, or for:

(a) Any mortgage or deed of trust thereon executed and given, including, without limitation, any second or subsequent mortgage, mortgage obtained through refinancing, line of credit taken against the property and a home equity loan;

However see this link that seems to contradict the above laws which is what the bank is referring to.

The upshot here appears to be that you could argue since the lender had reason to know that the home was located in a community property state they should have obtained your consent to secure the home as collateral. It is not your debt since you did not sign for the loan; but the collateral issue remains unclear as there is conflict between the statutes and what common law states. To me the Constitution seems pretty clear that the exemption does not apply to home improvement loans;

Still looking at this...

Expert:  Maverick replied 1 year ago.

See pane above also; if the home equity loan was not used for improving the home, then it appears to me that it is not enforceable against the home as collateral unless you also consented. See laws cited above.

Customer: replied 1 year ago.
no my husband took money to gamble and drink. no improvements ever made on the home.
Customer: replied 1 year ago.
I don't really understand what is written above , my apologies I need it in easy terms. Do I have a good chance here and how do I start my fight?
Expert:  Maverick replied 1 year ago.

Yes, quote the NV Constitution section that I cited to the bank. What it says is that if the loan proceeds were not used to improve the home or buy the home, then joint consent of both spouses is required in order for the home to serve as collateral for the debt.

Customer: replied 1 year ago.
The bank is screaming at me right now in fact......saying that because I signed a deed of trust? then I owe regardless.
Customer: replied 1 year ago.
please help me I don't wanna loose my house I am lost my husband , daughter her husband and now I am in charge of my disabled grandson and baby girl. I did not know about this loan until I tried to refinance to lower payment. :(
Expert:  Maverick replied 1 year ago.

"I am on the home but did not consent to his loan."

My amswer was based on your statement above. If you signed the deed of trust, that means that you agreed that the home should be put up for collateral for the loan even if your name is ***** ***** the loan as a borrower. So, first thing to do is get a copy of the DOT and make sure you did in fact sign it as the bank says. If you did, then that means you gave the bank consent to lien the home at the time of the loan and they can come after the home if your husband defaulted on the loan.

So long as you keep the loan current they cannot take the home. If there is no way to do that, then you may want to consider a Chapter 13 bankruptcy where you can essentially and significantly lower or eliminate all you unsecured debts (like credit cards) to free up income to stay current on the home equity loan. Also, it will allow you to pay back what you are behind on over the next 5 years.