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  1. #1
    tbird35 is offline Junior Member
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    Owelty,Refinance & Divorce?

    What is the name of your state?What is the name of your state? Texas

    Here's the situation.
    Was married, built new house, had mortage of $180,000. Divorced in 2001,He kept house and acreage. I was given an owelty lien deed of trust in the amount of $97,500 against home and acreage.
    My ex refinanced in 2002. I was never contacted or notified. Am I still covered for what he owes me? How did the new mortgage company finance this debt without consulting me (since I do have a deed of trust)???

    Is this all on the up and up or do I need to do something?

    Thanks in advance.
  2. #2
    seniorjudge Guest
    What's an owelty?

    Anyway, if you had a deed of trust on the land which was junior to the one he had when y'all got divorced, then when the first one is released, then yours will be the first, and the new refinance will be second to yours. But they do not have to get your permission.

    Are you sure maybe he just did a modification on his old mortgage?

    A title search is what you need to decide your nex step. Go see a title company in your area and ask for a search on just the current owner and lienholders on your husband's land. That may show you a lot of things.
    Last edited by seniorjudge; 01-14-2005 at 02:54 PM.
  3. #3
    tbird35 is offline Junior Member
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    I went to the courthouse where the deeds are filed.

    I know that he refinanced, he did not sell the property, he just refinanced the original amount with a different bank.
    I was under the impression that I should have been paid off if he refinanced the first mortgage as I was in a sense the 2nd lienholder?

    I contacted the title company that handled the transaction and their lawyer said that my deed of trust was still in effect? That is good, but I still don't understand how this refinance deal could have been done without my consent?
  4. #4
    seniorjudge Guest
    Quote Originally Posted by tbird35
    I went to the courthouse where the deeds are filed.

    I know that he refinanced, he did not sell the property, he just refinanced the original amount with a different bank.
    I was under the impression that I should have been paid off if he refinanced the first mortgage as I was in a sense the 2nd lienholder?

    I contacted the title company that handled the transaction and their lawyer said that my deed of trust was still in effect? That is good, but I still don't understand how this refinance deal could have been done without my consent?
    Tell me what an owelty is and I will answer your questions.
  5. #5
    tbird35 is offline Junior Member
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    OWELTY

    . The difference which is paid or secured by one coparcener to another, for the purpose of equalizing a partition. Hugh. Ab. Partition and Partner, 2, n. 8; Litt. s. 251; Co. Litt. 169 a; 1 Watts, R. 265; 1 Whart. 292; 3 Penna, 11 5; Cruise, Dig. tit. 19, 32; Co. Litt. 10 a; 1 Vern. 133; Plow. 134; 16 Vin. Ab. 223, pl. 3; Bro. Partition; 5. OWING. Something unpaid. A debt, for example, is owing while it is unpaid, and whether it be due or not. 2. In affidavits to hold to bail it is usual to state that the debt on which the action is founded is due, owing and unpaid. 1 Penn. Law Jo. 210.
  6. #6
    seniorjudge Guest
    Quote Originally Posted by tbird35
    OWELTY

    . The difference which is paid or secured by one coparcener to another, for the purpose of equalizing a partition. Hugh. Ab. Partition and Partner, 2, n. 8; Litt. s. 251; Co. Litt. 169 a; 1 Watts, R. 265; 1 Whart. 292; 3 Penna, 11 5; Cruise, Dig. tit. 19, 32; Co. Litt. 10 a; 1 Vern. 133; Plow. 134; 16 Vin. Ab. 223, pl. 3; Bro. Partition; 5. OWING. Something unpaid. A debt, for example, is owing while it is unpaid, and whether it be due or not. 2. In affidavits to hold to bail it is usual to state that the debt on which the action is founded is due, owing and unpaid. 1 Penn. Law Jo. 210.
    Thank you!

    I love learning new words.

    He did not have to pay you off when he refinanced. The first was released, your second became first, and the new deed of trust is now a second.

    This, however, is a very unusual deal to happen that way.

    If I were you, I would call that title company lawyer back and ask him if your lien was in a first position now.
  7. #7
    tbird35 is offline Junior Member
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    I was told by the Title company that No, I was still 2nd in line?
    Makes no sense to me, but there are many things in the world that make no sense....ha.
  8. #8
    tbird35 is offline Junior Member
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    I wonder how I would stand if he files bankruptcy? Which seems likely.
  9. #9
    seniorjudge Guest
    Quote Originally Posted by tbird35
    I was told by the Title company that No, I was still 2nd in line?
    Makes no sense to me, but there are many things in the world that make no sense....ha.
    So then the first one was never released.
  10. #10
    tbird35 is offline Junior Member
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    Yes it was released, that bank has no lien, they were paid off by bank #2 who now (somehow) has the 1st lein and I"m in the stands watching it all holding 2nd place and lein?
  11. #11
    seniorjudge Guest
    Quote Originally Posted by tbird35
    Yes it was released, that bank has no lien, they were paid off by bank #2 who now (somehow) has the 1st lein and I"m in the stands watching it all holding 2nd place and lein?
    Something is definitely wrong. You need to get something in writing from that title company. Ask for the report I told you about in the earlier posting.
  12. #12
    Mortgage Noel is offline Junior Member
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    Owelty

    No property can be financed (sale or refinance) without all liens against the property being either satisfied or released (which is another way of being satisfied).

    A few possibilities:

    1. The title company may have improperly conducted a refinance of this property if your Owelty Lien against it was indeed in place at the time of your ex-husband's refinance. In this case, you have recourse. That's why it's called title INSURANCE.

    2. You may have inadvertently signed the release. This is doubtful because a lien is still "of record" apparently. But, there are many liens that are of record when, in fact, a release has been duly executed but not filed. For example, a title company may have had a copy of your signed release (allowing them to close the refinance loan without satisfying your lien) yet not filed it. This would be extremely rare as this is the heart and soul of what they do - it's how they avoid paying claims - they file things properly. Banks, like WAMU, are more apt to lack diligence in filing releases properly.

    Most likely, and this is very common, the title company, the new mortgage company and the divorce attorney did NOT understand Owelty. It's amazing how many folks in those three fields do not. I know this because it is my specialty and I work in it all day long, specializing in mortgage financing for divorced and divorcing clients.
  13. #13
    Indiana Filer is offline Senior Member
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    Quote Originally Posted by Mortgage Noel View Post
    No property can be financed (sale or refinance) without all liens against the property being either satisfied or released (which is another way of being satisfied).

    A few possibilities:

    1. The title company may have improperly conducted a refinance of this property if your Owelty Lien against it was indeed in place at the time of your ex-husband's refinance. In this case, you have recourse. That's why it's called title INSURANCE.

    2. You may have inadvertently signed the release. This is doubtful because a lien is still "of record" apparently. But, there are many liens that are of record when, in fact, a release has been duly executed but not filed. For example, a title company may have had a copy of your signed release (allowing them to close the refinance loan without satisfying your lien) yet not filed it. This would be extremely rare as this is the heart and soul of what they do - it's how they avoid paying claims - they file things properly. Banks, like WAMU, are more apt to lack diligence in filing releases properly.

    Most likely, and this is very common, the title company, the new mortgage company and the divorce attorney did NOT understand Owelty. It's amazing how many folks in those three fields do not. I know this because it is my specialty and I work in it all day long, specializing in mortgage financing for divorced and divorcing clients.
    You're three years, three months, fifteen days, and some-odd hours too late to timely post in this thread. It's dead, so please don't necropost!

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