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Tina, Lawyer
Category: Real Estate Law
Satisfied Customers: 33166
Experience:  17 years of legal experience including real estate law.
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My ex husband and I divorced 4 years ago. We have a bank loan

Customer Question

My ex husband and I divorced 4 years ago. We have a bank loan together (separate from the mortgage). I put a Real Estate Lien and Deed of Trust that states he will pay ne $210 for 60 months. My lawyer says that the deed of trust is the document that I need to have him also refinance the house. My ex is questioning me about the refinancing because those specific words are not in it. What do I do? Once he pays the loan off I want my name off the house. What collateral to I have to make sure that happens?
Submitted: 3 years ago.
Category: Real Estate Law
Expert:  Tina replied 3 years ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

Your ex is questioning you about refinancing because those specific words are not in "it", do you mean the divorce decree does not require him to refinance the mortgage? What does the decree indicate with regard to this property and the loan?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 3 years ago.

Not sure if my response went through. The decree, Real estate lien, and deed of trust all require him to pay me $210month for 60 months. ALl payments due on or before Aug 1, 2014. The decree gives him the house. However he is questioning me bcause nowhere do I see the words that says he has to refinance or sell to get my name off the mortgage. My lawyer said that the deed of trust does that. But no exact wording is in there.

Expert:  Tina replied 3 years ago.
I see. Thank you for the additional information, Beth.

It is not typically automatic that a spouse who is awarded property during the marriage must refinance that property unless the decree specifically requires them to do so. And the deed of trust or quit claim deed signed by you would normally transfer ownership of the property to your ex, but have no effect with regard to the mortgage.

It sounds as though someone may have mistakenly omitted the language in the decree requiring him to refinance within a certain period of time or the property would be sold. Since that language is not included in the decree, you may wish to negotiate with your ex with regard to this issue, perhaps offering to forgive some portion of the payments he owes you in return for his refinancing the mortgage.

I would NOT agree to sign title of the property over to him until he has refinanced either, since then you would continue to be liable on an asset which you do not own. Perhaps if he is anxious to have you sign over title to the property, he will agree to refinance the mortgage in return for that.

So your leverage to compel him is that he wants your name off the title and the fact that he must pay you a monthly amount. Those two things can be used to motivate him to refinance.

However, if he pays off the mortgage, as you suggest may occur, in that case, refinancing would not be necessary since the debt you are obligated to repay would have been satisfied.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!


Customer: replied 3 years ago.

I am wanting my name off the house because I cannot get one on my own with my name still tied to that. The loan payments he makes to me are separate from a mortgage. He resides in the house and pays the mortgage. I pay my own rent. But I don't want my name removed before he pays me because then I cannot take the house back if he defaults in mortgage payments to mortgage company or loan payments to me.

What do I do now??

Expert:  Tina replied 3 years ago.
Hello again, Beth.

Is he close to paying off the mortgage on the property?
Customer: replied 3 years ago.

Mortgage, no.

He is thinking of paying me off his half of the loan early. That is all due by August 1, 2014.

Expert:  Tina replied 3 years ago.
Hello again, Beth, and thank you for clarifying that.

Under these circumstances, your leverage to compel him to refinance is still your refusal to sign the title of the property over to him (even though you may not be able to purchase a home yet because your name is on the title, you will not likely qualify for a loan either until he refinances and the current mortgage is satisfied, so you need to get both resolved before you can purchase another property) and your ability to forgive some portion of the amount he owes you.

If you refuse to sign title over until he refinances and/or forgive some portion of the loan he owes you, that may compel him to refinance. If not, you may wish to pursue mediation of this issue, or force him to pursue a contempt motion against you with the family court which entered the decree and at that time, you could request that the court order him to refinance.

This dilemma appears to have been created because someone omitted language in the degree requiring him to refinance by a certain time and it may take some time/compromise on your part to fix that mistake unfortunately.

I realize giving up some of the amount you are owed or waiting longer to sign over title to your ex may not be ideal solutions, but they are the best solutions you would have typically in this situation.
Expert:  Tina replied 3 years ago.
Hello again Beth,
I wanted to thank you for using JustAnswer, and to inquire whether my answer was helpful in clarifying your understanding of the law even though it may not have resulted in the outcome you were hoping it would.
Is there anything else I can assist you with?
If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile:
Thank you very much and all the best to you.

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