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My husband and I are getting a divorce. About 10 years ago

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My husband and I are...
My husband and I are getting a divorce. About 10 years ago we refinanced and I ended up the only one on the loan. He is on the title. About a year ago we did a loan modification and he is listed as co-borrower with Citigroup but he is still not on the loan, only my name.
He has stopped paying the mortgage in January this year. I am taking a huge hit on my credit because of this and his looks good. I am forced to do a short sell. Since he is not on the loan do I need his signature with the realtor to do a short sell? He is refusing. Help!
Submitted: 2 years ago.Category: Real Estate Law
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8/3/2015
Real Estate Lawyer: Richard, Lawyer replied 2 years ago
Richard
Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 55,810
Experience: 32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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You have the leverage here. If he won't sign the documents, you can force the issue. When you co-own property and you want to sell and your co-owner will not either agree to sell the property or purchase your interest (including getting you off the loans), you can file a suit for partition. The result of a suit for partition will be one of the following: i) if the property can be equitably subdivided, the court will order the property divided into smaller parcels with each owner then owning 100% of their own smaller tract with full control over that tract; or ii) if the property cannot be equitably subdivided, the court will order the property sold and the proceeds divided. Since a house cannot be divided, the court will order the house sold. The reality is that in most cases, once the owner fighting the sale finds out the certainty of the result of a suit for partition, that owner typically agrees to the sale without the suit to avoid the costs of the suit.
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Customer reply replied 2 years ago
Can I start the short sell without his signature? Every month that goes by without paying the mortgage goes against my credit.
Real Estate Lawyer: Richard, Lawyer replied 2 years ago

Thanks for following up. Yes, you can start the process. But, at closing, you will need his signature on the deed. If not, you will need to move to the suit for partition. I would suggest you reference this in any contract you sign as a contingency so that you don't run into a problem at closing with a buyer then suing you for damages because you can't close timely. You might want to pursue this on parallel paths...pursue the sale and file the suit at the same time.

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Experience: 32 years of experience as lawyer in Texas. I'm also a Real Estate developer.

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