Posted by CMS_NY on 1/14/08 4:00pm
Msg #230544

Marital States

Can someone provide me of the exact implications of the so-called "Marital States" with regard to the signing of the Mortgage/Deed of Trust.

Is it absolutely necessary the husband and wife BOTH SIGN the Mortgage/Deed of Trust or does it just simply have to state whether they are single, divorced, husband and wife, etc.????

Any help/clarification would be more than appreciated.

Reply by Bob_Chicago on 1/14/08 4:10pm
Msg #230545

Way beyond our paygrade, but never a bad idea to check..

with approporiate party if you think that it might be
an issue for a married bwr and only one is on dox.
If spouse's sig is necessary, and they do not sign "legals",
then there may be significant issues as to the enforceabilty of
the mtg.

Reply by sue_pa on 1/14/08 4:14pm
Msg #230546

the "exact implications" are not our business. We are not their lawyer, lender or title company. If you know basically/generally/normally what is required for your own state and you see something different, ask but otherwise, stay out of it.

Reply by Les_CO on 1/14/08 4:58pm
Msg #230553

In some States having a spouse, is like having a lien on the property.
And no I'm not a lawyer, and this is a chat board.

Reply by CaliNotary on 1/14/08 5:06pm
Msg #230554

"And no I'm not a lawyer, and this is a chat board."

Is it REALLY necessary to point this out? Is there anybody on this board who doesn't know it's a chat board and that they're not getting free legal advise from lawyers?

Reply by Les_CO on 1/14/08 5:15pm
Msg #230556

I would think not, but with all the discussion about UPL and "explaining" the docs I just thought I'd throw that in.

And while I'm at it..... “lien” is not referring to building in Pisa. Also, in some non-marital states there can be issues because of homestead laws.

Just tell them you haven’t a clue and to sign the docs, apparently that what most others do.

Reply by CJ on 1/14/08 5:56pm
Msg #230563

I have been always told to sign the way it is typed. Once I got in trouble becuase I "should have known" that the spouse was supposed to sign too, even though it was sole and separate property, and their name was not typed on anything. But THEY (the people sending you the docs) are supposed to know how the docs are supposed to be vested and who is supposed to sign. When you make those decisions, even if you KNOW you are 100% correct, that is practicing law wihtout a liscence. I would say, "Since I am not an attorney, it is a crime for me to give any advice or my opinion, but let's call the SS and find out." Then they can call their people to find out. I have also learned that sometimes, if you don't call the SS, you wind up calling some idiot who THINKS they know how it is supposed to be, but they really don't and it makes it worse. If you go through the SS, then it is not your problem, and they find the exact, correct answer.

Reply by Les_CO on 1/14/08 6:15pm
Msg #230566

Well if you go by what some SS people tell you, you (and perhaps the borrower ) will be in trouble. Some of these SS just got their start from a phone sex job, and are totally clueless. Don’t get me wrong there are some very good, very knowledgeable SS’s out there (some you see on this board) I keep seeing statements something like “You don’t need to know, just tell them to call the LO.” As for asking the LO? What? HA! Most are unlicensed, and give used car salesmen (not to denigrate used car sales people) a bad name. And as for knowledge of their business the most important thing to know is how to hide the YSP somewhere. If you don’t know, best call title. If you do know, you don’t have to ADVISE the borrower, just ask them subtle questions, and give your answers in a conversation.

Reply by Teresa/FL on 1/14/08 6:39pm
Msg #230568

"...If you do know, you don’t have to ADVISE the borrower, just ask them subtle questions, and give your answers in a conversation."

You still need to contact the TC to confirm how they and the lender want this handled. There may be issues you are not aware of and by checking with the TC and completing the signing per their instructions you will keep yourself out of trouble.

Reply by Les_CO on 1/14/08 6:59pm
Msg #230576

You can't go wrong by following instructions, and/or asking title on specific issues

Reply by BrendaTx on 1/15/08 1:02pm
Msg #230699

**Some of these SS just got their start from a phone sex job, and are totally clueless. Don’t get me wrong there are some very good, very knowledgeable SS’s out there**

Couldn't agree more. That's the darn truth.

BTW, if you are so inclined, I have read on the WAHM.com forum that there's a bit of phone sex work available for the work-at-home-mom.

Reply by jba/fl on 1/15/08 7:45am
Msg #230633

Les: got me really laughing w/this comment. TY for your wit n/m

Reply by JanetLA on 1/14/08 6:49pm
Msg #230573

Louisiana is one of them

The spouse always has to sign the legal docs here. (mtg, rtc etc) and the marital status is always included on the mtg for this reason. (It has a list of each spouse's marital history: for example: "having been married but once and then to __________, with whom he/she is currently living in community"We have a community property state and the spouse has to sign, or it will have to say one of many things, like:"married man, as his sole and separate property" or something else like "appearing as concurring spouse" or the spouse will do a form entitled "Renunciation of right to concur" so that the NBS doesn't have to sign. But in any event, most cases, even a non-borrowing spouse will have to appear. Just our crazy little southern state based on Civil Laws.... Have a great month to you all

Reply by janie/vt on 1/14/08 10:42pm
Msg #230609

Vermont is a homestead state too. n/m

Reply by Julie/MI on 1/14/08 6:51pm
Msg #230574

Imperfected lien

I didn't read the responses, so you may already have your answer.

It falls under the probate code for my state and it's basically a safeguard that a mortgage on the "marital"home must be signed by both even if only one is on the note. This ensures, for example, that a spouse with a gambling debt cannot mortgage the homestead without the wife (or husband) knowing about it.

I used to work for a title company and if the wife doesn't sign, we say in the industry that the lien is not perfected.

Reply by CF on 1/14/08 7:42pm
Msg #230582

I can not speak of the implications of NOT signing. But- MI is a martial state and the non-borrowing spouse must be included in any type of lein activity on a property that they are deeded on. Their portion of the equity is at stake. That is why they must sign the mortgage, TIL, RTC, and some other docs (each lender has their own list). For example- Mrs Borrower can not refi or take out a HELOC w/o letting Mr. Borrower know that his portion of his equity could be compromised. Therefore, even if Mr. Borrower is not paying for the loan ; he still will have to be made aware of the new lein that will be put into place with Mrs. Borrower taking out a new loan. You can sign away your rights here; making the property be sole possession of one of the married persons. If you are married you have the right to know- here in MI.

Reply by Teresa/FL on 1/14/08 8:04pm
Msg #230586

I have performed signings where one person is holding title as their "sole and separate property" yet the TC and/or lender has insisted that the spouse sign the MTG, riders, etc.

When the borrower is married and only his/her name is on the docs. I always ask the TC if the spouse is required to sign, regardless of how the title vesting appears on the MTG. This has saved a second trip for me a few times.

Reply by claudine osborne on 1/14/08 8:12pm
Msg #230588

Ohio is a dower state. Married people have rights. Non borrower must sign RTC, HUD etc.

Reply by Les_CO on 1/14/08 9:37pm
Msg #230600

Dower States? Does that mean everyone is sullen? I don't think my NNA class said anything about that? Maybe the LO knows?

Reply by dickb/wi on 1/14/08 8:17pm
Msg #230589

in wi you can not take out a loan on any thing with out.long

the spouse being informed.......if the spouse did not sign the mortgage the lender would not be able to foreclose the spouses interest and would only have a 50% interest to forclose....also with out signing the note the spouse is liable for 50% of that......we have different marital property laws than any other spousal state....ie: if you own a 12 unit building when you get married and use the income from that building to pay the mortgage 50% of that building automaticaly becomes the property of the non owner spouse......all income during the marriage is marital property and the minute it is mixed [used to pay mtge payments of the property] it becomes marital property.....every time i see no place for the non obligatory spouse to sign [espec the mortgage--til--rtc] i immediatley call the title co and inform them.....i have yet to have one say close it any how.....thay all say thank you and print the name and have them sign.....i do explain the docs to the borroqwer.....i don't interpret them however even tho i may know what the out come could be if the words are not abided by.......i do have a real estate brokers license and that does give me some leway in wi......

Reply by MikeC/NY on 1/14/08 9:41pm
Msg #230601

You know how it works in NY - whoever is on the deed has to be on the mortgage, and it's not uncommon for only one spouse to own the property, so sometimes the NBS has no involvement at all.

How it works in the other 49 states is not our concern - the TC or lender has to tell you how they want things signed. If you start trying to figure out who should sign what, you're flirting with UPL. When in doubt, ask...

That being said, common sense tells us it's a pretty good chance that if it's a "marital state", both spouses have to sign the mortgage/DOT since both have an interest in the property. The "exact implications" are that if the docs aren't signed properly, there will be problems. If you're not sure about whether the docs are right, ask the TC or whoever hired you - don't rely on what you may or may not know about state requirements.

Reply by Kevin/Ct on 1/15/08 6:40am
Msg #230628

Connecticut is an equitable distribution state with respect to property divisions during a divorce. All property acquired during marriage becomes the property of both parties regardless of who is designated in the deed as the grantee. Consequently, the unamed spouse on the deed still holds partial title to the real estate. How much of an interest would be determined by the court during the divorce.

Connecticut is also a title theory state with respect to mortgages, and a mortgage is a type of deed. When a borrower places a mortgage on his property he is splitting the title. The lender receives the legal title to his property, and the borrower retains the equitable title to the property.

Each of the note and mortgage provides for a different remedy for default on the loan. However, the lender may proceed against the signatories to the note and mortgage only. The note provides a remedy of money damages. The mortgage provides for seizure of the property or sale proceeds (depending upon whether it is a strict foreclosure or a foreclosure by sale) and the right to a deficiency judgment if the appraised value or sale price does not satisfy the amount of the loan and foreclosure expenses.

While only one spouse may be a signatory to the note...both spouses must be signatories to the mortgage in Connecticut because it is marital property in which both parties have acquired an interest in the title. Otherwise the lender could only foreclose on the title interest of the one signatory to the mortgage. In which case it would have to begin another legal action called a petition to partition the property. In the case of developed property the court would probably order a sale of the property and a division of the sale proceeds. In the case of undeveloped property the court might order that the property lines be redrawn to reflect the partition of the property.

Reply by Les_CO on 1/15/08 10:08am
Msg #230667

Great informative answer! And here I am being frivilous! Makes me want to apologize...almost.
Bet you diden't get that out of the NNA handbook?