Real Estate and Home Mortgages - Warranty deed VS Mortgage papers

I am just looking for someone who has been in a similar situation and can offer me some knowledge rather than advice. I am indeed in midst of a divorce but we own a house together. I have the mortgage and it has my name along with his...however the loan is in his name alone. I got some papers that he supposedly got from our local courthouse. It has a copy of a warranty deed. What is the difference between a warranty deed and a mortgage? He thinks that this is going to automatically give him the house but according to the USDA my name is indeed on the deed for the house. My name is not on the warranty deed but it does acknowledge that he is married. Will this make a difference that I want to sell it and he wants to keep it?

We went through the USDA to buy our home but they in order to pass the credit portion my hubby had to go through the loan with them alone so the loan got put in his name alone. Our real estate agent was also the prior owner of the house that we bought and the mortgage papers that went through the lawyer and the agent were drawn up with my name on them. I had found that my hubby had a side agreement with out agent and emailed USDA to ask if that was legal and they emailed me back with not being able to give me any information because I was not on the loan but I was shown to be on the deed. Now these papers with this warranty deed from the courthouse have shown up with his name, a married person.:wall:

first, all of this is very state dependent.

a deed is an instrument used to transfer the title of property.

a mortgage is the instrument used to register a lein on the house due to the loan

either you are on the title of the house or not. From what you stated, you are not but depending on the state involved, you probably still have claim to a portion of the house anyway.

Not sure why the USDA would state you are on the title if you are not included in the deed that transferred the title to whomever.

I have the mortgage and it has my name along with his...however the loan is in his name alone.the mortgage is the instrument issued by the lender to place a lien on the title of the house. The loan is often called a mortgage but it is incorrect use of the term. Whomever is on the loan should also be listed on the mortgage and this is registered and attached to the title of the property along with the warranty deed, which the seller used to transfer title to whomever it lists.

So, you actually have three things here;

deed
mortgage
loan

in a perfect world, each and every person on any of them should be on all of them. When they aren;t, it tends to make a mess of things.

I live in Iowa........................

What does your divorce lawyer say?

When I got divorced in fla [1982] me and my [ex] wife conveyed the property to me. The morgage stayed in both our names until it was paid in full. Who gets what is decided in the divorce proceedings.

btw - welcome to the forums!

Here's how it works and probably went. State specific...yes. For legal issues like community property. But not tilte issue. This is the typical way.

Husband buys home with a Warranty Deed. This transfers the property from the seller to the buyer (husband). HUSBAND is on deed and ONLY husband (as a married person so you may have rights). Then....loan comes in. You get booted off for whatever reason. Becasue you are NOT on the loan....there is no way the lender will allow you to be on the Deed (or "title") without being on the loan. Hence no change. Husband still has Warranty Deed (showing ownership) and the loan (be it Mortgage or Deed of Trust) >>> FYI - A Deed of Trust is also a mortgage...not a true "deed" or "title" in its traditional sense. <<<<

NOW....here's the tricky legal part. As part of the loan, you probably (defintiely) personally signed a "Disclaimer Deed". That means that you signed off all and any rights to a home. This was done to remove your rights to satisfy the lender to complete the mortgage. Yes, this is true and it is done everyday.

THEN....the moment after you signed your rights away with the Disclaimer Deed in order to satisfy the lender.....your husband probably created a "Quit Claim Deed". This new deed removes and reconveys the old Warranty Deed and changes the ownership from JUST the husband and incldues you on the Deed. Now both of you "look like" you own the home for you are ON THE DEED. Even with the Disclaimer you signed.

BUT......this is a NO NO to create a Quit Claim Deed becasue he had no permission from the initial lender to change over the initial Warranty Deed in the first place. Hence....a breach of contract. (Being Mortgage or Deed ot Trust).

Anyone can change a deed to sign it over to anyone they wish.....but if the original lender has a lien against it...any changes can and will be voidable. "Voidable" meaning ....NOT YET VOID.... For the reason or time hasn't come yet. Until a divorce, for instance or a foreclosure.

A good example.....The Smiths own a home secured by a mortgage (or Deed of Trust).....the Smiths have financial trouble and the loan goes into foreclosure. A real estate agent (cause they tell everyone this) advises them to "just sign over the home with a Quit Claim Deed" to a friend or relative and the lender can't foreclose >>>> I LOVE real estate agents!!!!! <<<. 3 months later the sheriff shows up and the Smiths are kicked out as they waive the Quit Claim Deed to Auntie Gertrude in the air. Moral of the story>>>>> You can't change title (Deed) if you don't have the right to do so. A lien or loan agaisnt the home basically removes the right. If you change title (Deed), that home is now considered "sold". And when "sold"...you gotta payoff the loan. right?? Its called a "Due on Sale Clause". Read you mortgage papers that no one has ever even looked at....just sign sign sign.

If you change title and don't pay....the new deed you/he/they have created is void and the deal reverts back to the last CLEAN title change. in your case, the Warranty and Diclaimer Deeds. This is called...removing the "Clouded Title". Making it clear again.

If just anyone can sign over their title (Deed) anytime they wish to any Tom Dick or Harry.....how and why would any bank do a loan on the home. WHERE is the lender's security interest if you can just sign-off at the first hint of trouble???????

You never did and still currently do NOT have ownership in the home. BUT....this is NOT to say you do not have any rights to the property.....being a married person and hubby bought the plkace WHEn you were married and took title as married......even though you signed the Disclaimer Deed (for sure I guarantee). Get a lawyer!

If just anyone can sign over their title (Deed) anytime they wish to any Tom Dick or Harry.....how and why would any bank do a loan on the home. WHERE is the lender's security interest if you can just sign-off at the first hint of trouble???????I really hate to break this to you but you can deed a property anytime you want and you can sign it over to whomever you want to.

Nap, you obviously do not understand.

Once again.....you can....in TITLE THEORY states (which means, in theory the homeowner has title to the property) you can, becasue the state or County allows it, sign over title to anyone you wish.

>>>>> FYI...try and sign/change/omit a title in the state of New York (and many back East). You can NOT if there is a lien on the property....period. The lender holds equitable title....THAT is what you need to truely chnage over a title.

You are agrueing over "Legal Title". Which means you have the right to change title.

Now....IF there is a mortgage or Deed of Trust against the property....and you "sign over" with a new title (deed)....you must then PAYOFF the encumbrance. You ahve Legal Title....just not "equitable".

Again.....If you have a mortgage on your home....and it goes into foreclosure.....and you just sign it over to any Tom, Dick or Harry thinking you can avoid the foreclosure....the new deed will be VOIDED and it will revert back to the initial deal with the lender 9and title/ownership status) because you CAN NOT change title (legally) without the lender's explicit written consent. (which you'll never get).

If you have a mortgage on a home...can you sign it over to someone else and then your hands are clean of the loan too??? NO.

If you sell your car....does the loan with the bank go away too?? NO.

If youy sell a boat.....does the loan on the boat go away casue you transfered tilte...NO.

Now is this the NEW owner's problem.....NO....for you NEVER had the right to transfer title.

The state or County may allow you to transfer title......but the LOAN borrowers signed up for removes that right.

Get it?

Oh, if you only knew my life experience.
I understand this subject quite well.

you can deed the title anytime to anybody.

You can NOT if there is a lien on the property....period. The lender holds equitable title....THAT is what you need to truely chnage over a title. then I presume they utilize a deed of trust. In that case, you do not hold title to your own land, the trustee does. You can actually still QC deed your interest though.

Now....IF there is a mortgage or Deed of Trust against the property....and you "sign over" with a new title (deed)....you must then PAYOFF the encumbrance. You ahve Legal Title....just not "equitable".well now, that is dependent upon the contract itself. A smart lender will include a due on sale clause and if they have, then of course, it will be activated upon the transfer. That still does not prevent you from transferring title, it merely means the lein holder will call in the note.


Again.....If you have a mortgage on your home....and it goes into foreclosure.....and you just sign it over to any Tom, Dick or Harry thinking you can avoid the foreclosure....the new deed will be VOIDED and it will revert back to the initial deal with the lender 9and title/ownership status) because you CAN NOT change title (legally) without the lender's explicit written consent. (which you'll never get).Bull. I never said you could avoid your mortgage or a foreclosure. I just said you can transfer the title, which you can. The thing you are apparently misubderstanding is you can only transfer that interest which you hold.

If you have a mortgage on a home...can you sign it over to someone else and then your hands are clean of the loan too??? NO.I didn't say you could

If you sell your car....does the loan with the bank go away too?? NO.didn't say it did.

If youy sell a boat.....does the loan on the boat go away casue you transfered tilte...NO.didn't say it did

Now is this the NEW owner's problem.....NO....for you NEVER had the right to transfer title.Youtalking about cars or houses. They are different and you can do different things with them.

The state or County may allow you to transfer title......but the LOAN borrowers signed up for removes that right.Nope, they don't. They impose rules that IF you do transfer the title, other clauses in your loan will come into play.

Mind yuo, I never said deeding your property removed a claim a lender may have.

I also said that by you deeding the property that it transferred title clear and free.

all I said was:

I really hate to break this to you but you can deed a property anytime you want and you can sign it over to whomever you want to.and that is true. It is what you are deeding that is the point.



Got it?

Your right. I'm wrong.

Nap says you can sign over whatever you wish. that is exactly what this thread is all about. Anyone can sign over their home. the bank won't care. the divorce attorney won't care. No one cares. its ok.

there are no contingencies that nap requires.

He is an expert for he has had life experiences.

When the Divorce attorney or judge or county tax assessor or lender (Deed of trust OR a mortgage for some states do both) has a problem....just say that "nap had a life experience and he said it is OK".

The home, auto and boat loan are examples to make anyone with common sense to figure out that you CAN (in theory) change title and sign over ANY property you own. When you due so....there will be contengencies. You can't just sign over your car with a loan attached for the lender didn't give the loan to the other guy.....they gave it to you.

Same thing with a home.

If there is a lien against the home....you can sign over title to someone (except in Eastern states)....but you don't have the right and it reverts back to the previous Unclouded title.

I now remember why I stopped moderating this site years ago. its been over a year since I last looked....it will be my last.

EXCELLENT ADVICE.

Thank you,

Brian
Licensed Mortgage Broker
State of Arizona MB#0905679
10 1/2 year experience
Licensed Real Estate Agent and Realtor
State of Arizona, PHX Chapter MLS
6 years Experience.

Nap says you can sign over whatever you wish. that is exactly what this thread is all about. Anyone can sign over their home. the bank won't care. the divorce attorney won't care. No one cares. its ok.no he didn't

there are no contingencies that nap requires.didn't say that either

He is an expert for he has had life experiences. expert is such a subjective term

When the Divorce attorney or judge or county tax assessor or lender (Deed of trust OR a mortgage for some states do both) has a problem....just say that "nap had a life experience and he said it is OK".but he didn't

The home, auto and boat loan are examples to make anyone with common sense to figure out that you CAN (in theory) change title and sign over ANY property you own. home auto and boat title are treated differently than real estate. You can actually deed "nothing" with a quit claim deed. If you sell the car, boat, or auto, by selling the item, you are representing that you do have clear title to do so, unless you would include such a less than clear title in the contract.

When you due so....there will be contengencies. You can't just sign over your car with a loan attached for the lender didn't give the loan to the other guy.....they gave it to you.never said you could. You brought in the other items. I have no idea as to why. How they are dealt with is irrelevent.



Same thing with a home. all I said was you can deed re antyime you want. I can deed my interest in your house to you as long as I do it properly.


If there is a lien against the home....you can sign over title to someone (except in Eastern states)....but you don't have the right and it reverts back to the previous Unclouded title.NOthing happens unless somebody would take action (in court) to alter the situation. You are very incorrect in this situation though. Have you never sold a home with a lien intact?





Thank you,

Brian
Licensed Mortgage Broker
State of Arizona MB#0905679
10 1/2 year experience
Licensed Real Estate Agent and Realtor
State of Arizona, PHX Chapter MLS
6 years Experience.I would be embarrased to post this info given what you also posted by hey, it's your name, not mine.

You forgot to give your Realtor member ID number. (you seemed to want to give everything else. I figured you just forgot)

Too bad this turned into a shouting match. Get back to the lady's questions.

The property MAY be in your husband's name only but a check of the records at the county by you or a person familiar with the records may be in order. He is now an adversary and you should independently verify anything he tells you for your own protection. The loan on the house is probably also only in your husband's name. Because you were married, you probably had rights in the property conveyed by marriage, so you were REQUIRED to sign the mortgage.

Some states have what they call "homestead rights", which in my state (not Iowa) means that upon marriage, you have a 1/2 interest in the property you and your spouse reside in, even if it is only in one person's name. Thus, if the spouse who is on the title dies, you cannot be kicked out of the house by the spouse's heirs and left homeless. If you get divorced, then your homestead rights are extinguished in the divorce, and you no longer have rights to the house afterwards. Thus, if you are borrowing money in one spouse's name and you are not on the deed, you are still required to sign the mortgage or at least sign a waiver to place the bank's lien on the house above your homestead rights.

What does all this mean now, though? Talk to your lawyer. Whether or not you can get any equity out of the house in the divorce will be decided by other laws in your state, not the deed since you are not on the deed. If you were on the deed, you would have more leverage to get your hubby to buy you out.

If you signed the mortgage, the lender should talk to you about it even if you are not on the loan, because you have an interest in the property covered by the mortgage. If they refuse, get a copy of the mortgage and read it carefully, it will probably say you have a right to information about the loan. If you still get stymied by the lender, remember this the next time you do any banking and go to a bank with humans who happen to be bankers, not bankers who happen to have human DNA.

This won't apply to you, but if you were on both the deed and mortgage, don't ever sign the deed over to the hubby unless he gets your name off the loan on the house (make him refinance). Otherwise, if he ever stops making payments, your good credit will be ruined and the loan will go through foreclosure over a house you don't own and can't get back.

As to the fight over transferring deeds, FEW lenders (there are exceptions) give a hoot if you deed the property over to someone else while you have a mortgage on it AS LONG AS THE PAYMENTS ON THE MORTGAGE ARE MADE. They don't have time to check titles constantly, anyways, and will never know unless you make an issue of the transfer (then they might care if you tell them--which you really should do-- depending on the circumstances of the transfer). Your mortgage will have a due on sale clause, however, and if the lender desired, he COULD (not necessarily WOULD) initiate foreclosure if you transferred the deed even if your payments are current. The relevant thing here is that lenders are in the business of lending money, not foreclosing on homes. They will avoid foreclosure if they have an alternative, and the preferred alternative is to do nothing as long as the payments are being made. State laws vary, so there may be less tolerance in some states due to the legal hassles that can occur.