Legal Question in Real Estate Law in California

Re: quit claim and mortgage assumption

You need to talk to your divorce attorney to see what steps are necessary to compel your ex wife to comply with the Court's order. You signed as a borrower, so the order has no binding effect on the lender. This is something that you need to work out with your ex.

Re: quit claim and mortgage assumption

The statute of limitations for suits to enforce judgments is ten years (Code of Civil Procedure section 337.5).

Most home loans more than five years old can be refinanced advantageously; first, because rathes and credit requirements are more favorable; and second, because most properties have a lot more equity, due both to appreciation of market prices and the gradual pay-off of the existing loan.

It should be quicker and easier to persuade her to refinance in her own name that to go to court to have a judge find a way to enforce the judgment. But the fact that you probably could do so, if push came to shove, could be an additional persuasion for her to refinance voluntarily.

Re: quit claim and mortgage assumption

It appears the Court Order does not require her to refinance, so, no, probably not. If she not following Court Order you may be able to get an order having her comply, but that would not generally require refinance.

JOEL SELIK Attorney at Law

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Re: quit claim and mortgage assumption

The divorce court retains jurisdiction to enforce its orders. Refinancing is silly now that the interest rates are once again climbing.

You should talk to an experienced family law attorney who is also familiar with real estate. Unlike simple civil actions, the family court is vested with a remedy known as contempt when one of the parties refuses to comply with court orders. I would not recommend contempt until other methods had failed, however, especially if you still have custody issues involving children.

The fact that you signed the promissory note means that you are personally liable under the loan. In the event of foreclosure, however, the lender is required to exhaust the security first and would only go after you if the sale of the security (the house) did not satisfy the remaining balance of the mortgage. That situation is known as a deficiency judgment. Lenders who foreclose nonjudicially (through a trustee's sale) cannot obtain a deficiency judgment. They can only be obtained through a lawsuit, and there are many more requirements for the lender to comply with to obtain a deficiency judgment against you.

I would not be that worried about being personally named on the note at this time. I hope that this answers your question to some extent.

Very truly yours,