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Quitclaim Deed Does Not Change Mortgage

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 663

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader signs a quitclaim deed transferring his share of a home to his ex-wife. He now realizes that he is still listed on the mortgage and it is hurting his credit rating. Sam and Ilyce explain the differences between quitclaim deed, title and deed of trust.

Q: Two years ago I stupidly signed a quitclaim deed, giving my half of our house to my ex-wife.
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However, my name remains on the mortgage even though she is making the payments.

I now realize this was a mistake. It is even affecting my credit and my ability to rent an apartment.

How do I get my name off of the mortgage? And, would it be possible for me to undo the signing of the quitclaim deed to reclaim my half of the value of the house?

A: You can’t undo the transfer of the home to your ex-wife. If you signed and delivered a valid document, you can’t now come back and undo it. If you were not divorced when you signed over your half of the house to your ex-wife, did the divorce decree take into consideration your ownership of the house?

If you were already divorced, the transfer of your interest in the house is a gift to your ex-wife.

Some people mistakenly confuse their ability to transfer their interest in a home with their financial obligations under a mortgage and loan for a home. In some cases, homeowners believe that the term “title” to a home is the same thing as the mortgage to the home.

For the most part, when a person buys a home and gets financing for the purchase of the home, the person who bought the home is in title to the home and the lender has a mortgage that gives that lender the right to foreclose on the home if the homeowner fails to make payments under the mortgage.

While in some states the term “deed of trust” is used, the deed of trust is equivalent to a mortgage for most purposes and the homeowner is still in title to the home.

When the homeowner transfers title to the home and does not pay off the mortgage or deed of trust, the ownership of the home transfers but the old homeowner remains responsible under the original mortgage or deed of trust.

You transferred your ownership interest but remained on the mortgage or deed of trust. The only way you can remove your name from the mortgage or deed of trust is for your ex-wife to refinance the home and get a new loan in her name alone. You can attempt to contact the lender and have your name removed, but that rarely if ever works. Of course, if your ex-wife sells the home and pays off the lender, your name would finally be off the loan.

Your best bet is to work with your ex-wife and use any good will generated by the transfer of your interest in the home to her to convince her to refinance the loan and take you off the old mortgage.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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