Posted by Signer_MN on 4/14/05 9:36am
Msg #31726

Waiver of Homestead...

I arrived for a signing last night, ready to do my duty. The docs were overnighted to the borrowers, so I had not had a chance to view them prior to arrival. The borrowers immediately directed me to a statement located directly below the spouses name on the mortgage signature page which read

________________________________(Seal)
Jane A. Doe
signing to waive homestead rights

Hmmm.... never seen this one! The spouse was not a co-borrower, but rather only signing the legals. Of course, I directed them to phone their LO. The LO explained to them that this SIMPLY meant "in the event your husband passes away, we would foreclose on the home as you are signing your right to homestead away". WHAT???

Has anyone ever seen this or heard of this printed on a mortgage? (There was no quitclaim deed.) Can a lender make that determination? Is that legal? (My curiosity is now getting the better of me...I would not pass that onto a borrower).

Needless to say the wife was not happy with this. I gathered the docs and left.

Reply by adrock fl on 4/14/05 10:32am
Msg #31744

IM not sure of the laws but in florida i've waiver of homesteads on docs. In the state of florida i believe that if your home is homesteaded then if you default on the loan then your home cant be taken away from you. So the loan companys put this in that is you default on the loan you nolongwer have the homestead protection and your living in a box down by the river. Im not a lawyer i think thats what it means in florida.

Reply by Ted_MI on 4/14/05 11:17am
Msg #31749

Hi Signer,

Can't answer your question (wish I could; it is interesting). But I can tell you that I have handled HELOC signings in which the wife is a non-borrower. On the signature page of the mortgage above the wife's signature there is a paragraph to the effect that she is willing to subordinate her homestead rights with respect to the mortgage. Wish I had a copy of it to post but I don't .

Obviously this is quite different from waiving one's homestead rights.

Reply by Art_MD on 4/14/05 12:30pm
Msg #31770

Re: Waiver of Homestead. Brenda/TX - can you help..

I know that TX is a homestead state (at least it was years ago).

With homestead, if a person went bankrupt, the house would not be subject to creditors - except to the bank for the 1st mortgage. For years, in TX people couldn't take seconds because the 2nd could be discharged in bankruptcy. The laws have changed.

It appears that in this case it is legal to give up the protection (in TX you couldn't give up that protection).

You might want to search the web for info on "homestead rights" .

Let us all know what you find.

Art

Reply by BrendaTx on 4/14/05 2:52pm
Msg #31796

Re: Waiver of Homestead. Brenda/TX - can you help..

Art, Sorry, but I just look in for a second...uploading an inspection from the hot place.

Not an attorney, not practicing law...just trying to learn like everyone:

The info about homestead is contained in the Texas Constitution. That's what had to be amended to get second liens on property, etc. This is where it states we cannot do HELOCs except in certain offices/locations. Thus having it bookmarked.

I am pretty sure I know the answer to your question, Art, but if you look at the way this is poorly outlined, you'll see why I am hesitant to comment. I think this was re-written to give homestead a degree of protection, plus give lenders clear protection on what can/cannot be foreclosed on.

The Texas Constitution-Article 16 - GENERAL PROVISIONS - Section 50 - HOMESTEAD; PROTECTION FROM FORCED SALE; MORTGAGES, TRUST DEEDS, AND LIENS

http://www.capitol.state.tx.us/txconst/sections/cn001600-005000.html

Reply by Ernest_CT on 4/15/05 11:03am
Msg #31956

(Stating the obvious:) Remember, you're in MN.

I'm not chewing you out! Or being a PITA.

As interesting as TX, MD, etc. law is (and I find it fascinating), the laws your borrower need to be concerned with are for their state.

The larger picture is, of course, that you're not supposed to say anything legal to the borrowers. You did exactly the right thing by refering them to their loan officer. No matter what you find out, beware of Unauthorized Practice of Law (UPL).

Thanks for an interesting post.

Reply by Signer_MN on 4/15/05 12:07pm
Msg #31963

Re: (Stating the obvious:) Remember, you're in MN.

I was called to go back over to complete this signing Sat. afternoon. Seems they are redrawing the docs. I will be interested to see if that clause is still on the new docs. They are adding the Mrs. as a co-borrower now, where before she was just signing the legals.

I have looked for this specifically pertaining to MN and have had no luck matching waiver and mortgage. All I seem to find is waiver of homestead in other legal matters - no where I have found mentions this can be on a mortgage.

I wanted to pick everyone's brain more for myself - I would never tell the borrowers. I was very curious on this one more for myself, not for them.

Ernest - call me stupid or slow today; but what is being a PITA?

Reply by Ernest_CT on 4/15/05 2:19pm
Msg #32001

No, you're not going to be called names.

Pita is a kind of flat bread from the Middle East.

What?r Not buying it?r

OK. How about Pain In The A--?

Reply by Signer_MN on 4/15/05 3:26pm
Msg #32026

Re: No, you're not going to be called names.

Yes, that is PITA - I just didn't think that is what you were referring to.

I get ya now.