Wife on title, but not on mortgage

[a_friend]

What is the name of your state? Virginia

During recent re-finance, only husband is on the mortgage. Both husband and wife on are the title. Husband left (along with the cash-out from the re-fi) leaving wife with no means to pay mortgage. First payment was due December 1. Husband is not paying.

Can the bank foreclose? Obviously, wife won't agree to the forced sale. She is not legally responsible for the mortgage. She is currently living in the house with 4 kids.

[moburkes]

Originally Posted by a_friend

What is the name of your state? Virginia

During recent re-finance, only husband is on the mortgage. Both husband and wife on are the title. Husband left (along with the cash-out from the re-fi) leaving wife with no means to pay mortgage. First payment was due December 1. Husband is not paying.

Can the bank foreclose? Obviously, wife won't agree to the forced sale. She is not legally responsible for the mortgage. She is currently living in the house with 4 kids.

Sure, the bank can foreclose. Wife doesn't need to agree to the sale. All she can do is wait for the eviction notice, or use the income from her job to pay the mortgage.

[a_friend]

But if she is an owner, how can the bank force a sale of the house if she doesn't sign? Would it delay things at all? Would the bank have to go to court to force her to sell?

[moburkes]

Because they are not being paid. Based on your thought process, all any of us needs to do is have someone on the title to our home that is not on the mortgage. Therefore, when we default, we can simply live mortgage and rent free forever.

By the way-since the house isn't paid for, the house doesn't belong to her. It belongs to the company who put up the money for the sale (mortgage company). When the mortgage is not paid, they will exercise their rights against the property that they own.

Does that make more sense for you?

[tranquility]

Let me put things another way for our able, senior, forum member. You and I go in together and buy a property. We become tennants in common. You, know or unknown by me, go out and get a mortgage (refinance existing, equity line, whatever) and take the equity out of the property. You then disappear--what result?

The mortgage company will have to partition the property through suit and collect against your portion. You can't hypotecate my half without me signing for it. (Statute of Frauds) Why is this case different?

I don't know if this is the case here as we don't have all the facts so I'm not telling the OP she's safe. I'm just saying that she may not lose the house until after a partition suit and then she might receive something. I find it unusual a bank would make this error and believe the OP is not stating all the facts, but it's possible she is not completely SOL.

[a_friend]

All the facts are as I stated them. Feel free to ask for clarification if it would help.

There was no error made by the bank. I believe the reason for putting mortgage only in husbands name had to do with the credit rating of both husband and wife together. Deal was made through a mortgage broker with a sub-prime lender.

So it sounds like you are saying that the bank would not be able to do a routine foreclosure, but would have to file a partition suit first, which would greatly slow things down.

Is that correct?
thanks

[acmb05]

Originally Posted by a_friend

All the facts are as I stated them. Feel free to ask for clarification if it would help.

There was no error made by the bank. I believe the reason for putting mortgage only in husbands name had to do with the credit rating of both husband and wife together. Deal was made through a mortgage broker with a sub-prime lender.

So it sounds like you are saying that the bank would not be able to do a routine foreclosure, but would have to file a partition suit first, which would greatly slow things down.

Is that correct?
thanks

Except for the fact that you are married and not in a business partnership. They can and probably will foreclose if the payments are not made. There is nothing you can do about it. You will lose the home if the mortgage is not paid. The only bright side is that if they sell it at foreclosure auction and don't get enough for it to pay off the mortgage then they would have to go after your husband for the balance if they wanted it.

[lcannister]

Originally Posted by tranquility

I find it unusual a bank would make this error

Clarify please, what error do you think the bank is making. This is a very routine and very common method of obtaining a home loan by one party who has screw up their credit and the other hasn't.

The OP has no money therefore nothing to pay for a partition with nor the time and Atty to do it.

[Ohiogal]

Originally Posted by lcannister

Clarify please, what error do you think the bank is making. This is a very routine and very common method of obtaining a home loan by one party who has screw up their credit and the other hasn't.

The OP has no money therefore nothing to pay for a partition with nor the time and Atty to do it.

And what is also routine and common is the bank having the other person on the deed sign the mortgage in order to state only that the co-owner's rights are inferior to the mortgagor's. That way if the mortgage is not paid, the bank can go straight to foreclosure becaues their rights are superior to the rights of the other owner.

[lcannister]

Originally Posted by Ohiogal

And what is also routine and common is the bank having the other person on the deed sign the mortgage in order to state only that the co-owner's rights are inferior to the mortgagor's. That way if the mortgage is not paid, the bank can go straight to foreclosure becaues their rights are superior to the rights of the other owner.

And why we always say without seeing ALL documents it is vey difficult to give a definitive answer as we do not know that was not done by this poster.

[tranquility]

lcannister wroteQuote:

Originally Posted by Ohiogal
And what is also routine and common is the bank having the other person on the deed sign the mortgage in order to state only that the co-owner's rights are inferior to the mortgagor's. That way if the mortgage is not paid, the bank can go straight to foreclosure becaues their rights are superior to the rights of the other owner.

And why we always say without seeing ALL documents it is vey difficult to give a definitive answer as we do not know that was not done by this poster.

So, does that mean you agree or disagree with me when I said:

I don't know if this is the case here as we don't have all the facts so I'm not telling the OP she's safe. I'm just saying that she may not lose the house until after a partition suit and then she might receive something. I find it unusual a bank would make this error and believe the OP is not stating all the facts, but it's possible she is not completely SOL.

[lcannister]

Originally Posted by tranquility

lcannister wroteQuote:


So, does that mean you agree or disagree with me when I said:

In context yes I agree. My oops! Sorry! You will never find me afraid to say I goofed up!

However, this person does not have the means to hire an Atty for a partition nor the time it takes for such action, meaning MORE THAN LIKELY this home is going bye-bye!

Barring of course the fact we have no idea what has or has not been signed in all the paperwork!