my husband and i have legal seperation papers, his name is only name on 1st and 2nd mortgage but he has quit claimed deed to me and quit claim deed was filed. i pay the 1st mtg and he pays the 2nd, he is now refusing to pay the 2nd mtg which is the small one. can they foreclose on home if he defaults on this mortgage?
2 Answers from Attorneys
Yes they can. If your husband fails to pay, you need to speak to your attorney about filing a motion for contempt
Mortgages have nothing to do with ownership of property. Being on a mortgage means that a person is obligated to pay the mortgage. Being an owner of land and listed on a deed means that the person owns land. Its important to note the differences.
Your husband quitclaimed his share of the property to you, which was idiotic because he is still liable on the mortgage. That means that he is still liable on the mortgages even though he no longer has an ownership interest in the property.
Have you tried to get refinancing so that the mortgages will just be in your name? Are you even able to qualify? Can you afford to remain in the home? If so, then you need to pay the mortgages. Even if you pay on the first, depending on the value of the home and the amount of the debt, it is possible for a second mortgagee to foreclose on the property. Any buyer at a sale would then take subject to the mortgage. However, there are situations where it may not make economic sense for a second lienholder to foreclose.
I agree with Attorney Love that you should talk to your divorce attorney about your options, but there may be no good solutions here. Since your husband quitclaimed his interest in the home to you, it was your obligation (or should have been) that you would refinance the property in just your name. Why would your husband pay for a property that he does not live in? However, you and your attorney need to figure out what you want to do with the home and either work to sell it or refinance it in your name.