Can My Ex-Husband Make Remove Me From the Deed to Refinance the Property?
Full Question:
Answer:
The answer will depend in part on whether you have a divorce decree giving you equity in the house in the property settlement. I suggest you call the bank to inquire as to their reasons for wanting you off the deed and consult a local attorney who can review all the facts and documents involved. Typically a lender requests ownership rights to be waived when the person isn't already on the deed. It is possible that the lender would want a spouse not named on a deed to sign papers giving up any claim to community property rights in the property before agreeing to refinance. It is typical in a promissory note to state a date of final payment to be made. Making such a date contingent on a property value appraisal may pose problems in definition of dates and enforcement. A person named on the deed has immediate rights of ownership compared with a lien holder named on secured loan.
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in both real and personal property. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. A joint tenancy between a husband and wife is sometimes known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Each joint tenant has an equal, undivided interest in the whole property. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
A promissory note may be secured or unsecured. When it is secured, it means that property, called collateral, may be taken by the lender if the borrower fails to pay the loan payment. If the debtor files bankruptcy, the lender may be able to recover the value of the loan by taking possession of the specified collateral instead of receiving only a portion of the borrowers property after it is divided among all creditors. Collateral may be many different types of property, such as shares of stock of a company, inventory, accounts receivable, etc.
The parties to the loan must sign it and the notary must witness the signatures. The contract may contain a choice of law clause as to where it will be litigated if a dispute arises. Choice of law refers to what jurisdiction's law is to be applied when there is a dispute in a transaction. The loan document may then be recorded in the county recorder's office where the property is located.
A promissory note may provide for payments to be made in installments or in a lump sum. The terms may provide for a series of smaller payments at the beginning of the loan period and a larger balloon payment at the end of the loan period. The option for a confessed judgment agreement, also called a cognovit note, may also be included. A confessed judgment agreement requires the debtor not to claim defenses and agree to have a judgment entered against him if he fails to pay and the matter is taken to court.
If a mortgage already exists on the property, the lender most likely has a prior lien recorded on the property. A mortgage loan will typically create a lien on a home and if filed before another debtor, the mortgage lien will be entitled to be paid first before the remaining proceeds, if any, can be paid to junior creditors.
Promissory Note: A promissory note is a written promise to pay a debt and is typically signed at the time of the loan. It is an unconditional promise to pay on demand or at a fixed or determined future time a particular sum of money to or to the order of a specified person or to the bearer.
Cognovit Note: A cognovit note is a note in which the maker acknowledges the debt and authorizes the entry of judgment against him or her without notice or a hearing : a note containing a confession of judgment. This type of note is not valid in many States.
Collateral Note: A collateral note is a note secured by collateral. Same as a secured note.
Demand Note: A demand note is a note payable on demand from the person who is owed the money.
Floating Note: A floating rate note (or adjustable rate note) is a note where interest varies.
Recourse Note: A recourse note is a note where the default may result in loss of collateral and also personal suit and judgment. Most notes are recourse notes.
Renewal Note: A renewal note is a note that renews a previous note due date.
Unsecured Note: An unsecured note is a note that is not secured by any collateral but only the promise to pay (i.e. signature only is required to loan the money).
Please see the information at the following links:
http://definitions.uslegal.com/p/promissory-notes/
http://definitions.uslegal.com/s/secured-transactions/
http://definitions.uslegal.com/c/collateral/
http://definitions.uslegal.com/s/security-interest/
http://definitions.uslegal.com/b/balloon-payment/
http://definitions.uslegal.com/p/priority/
http://definitions.uslegal.com/c/confession-of-judgment/
http://definitions.uslegal.com/c/cognovit-note/
Please see the forms at the following links:
http://www.uslegalforms.com/us/US-00601.htm
http://www.uslegalforms.com/us/US-00601-A.htm
http://www.uslegalforms.com/us/US-00598.htm
http://www.uslegalforms.com/us/US-NOTE88.htm
http://www.uslegalforms.com/us/US-00601.htm
http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-CO-B-promissory