Spouse must sign mortgage, but not necessarily the note

MAILBAG

January 28, 2001

Dear Mr. Azrael,

Is it good to have our mortgage in just my spouse's name? My husband and I remortgaged our home. Instead of putting the mortgage in both our names, the mortgage company decided to put it in just my husband's name.

I have fairly good credit before and after we remortgaged our house. I asked why they felt it would be good. I myself don't feel good about it. What do you think?

Linda Smoot Severn

Dear Ms. Smoot,

Most married couples want their home to be titled jointly. Both spouses own the home together. As long as they're married, neither spouse can sell, mortgage or transfer the home without the other's written consent. When one spouse dies, the survivor owns the home automatically, "by operation of law."

When your home was refinanced, two important legal documents were signed. One document was a "note."

The note specified the amount of the loan, the interest rate, the monthly principal and interest payment and other important terms. It is not necessary that both spouses sign the note, even though the home is owned jointly, as husband and wife. Your husband signed the note alone. If he did, you are not personally liable for repayment of the mortgage debt.

The other important legal document is the mortgage or "deed of trust." This document gives the lender a lien on your home to secure repayment of the note.

In the event of default in payment of the note, the lender can foreclose on the home and sell it. The mortgage or deed of trust must be signed by all those in title to the property. If you and your husband own your home jointly, you were required to sign the mortgage, even if you did not sign the note. By signing the mortgage, you agreed to allow the lender to foreclose on the home if the note is not paid in accordance with its terms.

You and your husband should review the loan documents relating to the refinancing to verify which of you signed the note and mortgage or deed of trust.

If you didn't sign the note, I would not be concerned. But if you did not sign the mortgage, it's because you are not co-owner of the home. A new deed may be required to add your name to the title.

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