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chidawg · Joined: 07 Oct 2008 Posts: 1 1.37 Dollars($)

does a promissory note/mortgage have to be court recorded to be considered a first mortgage?...after a divorce the person staying in the home signs a mortgage it is notarized but not recorded in the court, this individual obtains another mortgage which is recorded the first mortgage was signed three weeks before who is first and who is second?

Posted: Tue Oct 07, 2008 10:12 am Post subject:

If the first mortgage is never recorded then the "2nd" mortgage is actually in first lien position.

gmakerley · Posted: Tue Oct 07, 2008 10:33 am Post subject:

whichever deed is recorded first is the first mortgage, and any subsequent filings are second, third, etc.

i'd think the first mortgagee would be a bit upset about this.

gmakerley · Posted: Tue Oct 07, 2008 10:35 am Post subject:

but now i am re-reading your original post. you mentioned "recording with the court" - something that has nothing to do with the land records of the municipality.

the precedence of liens is according to the order in which documents are recorded in land records of the town, city, county, etc. in which the property is located. the court's recordation has nothing to do with it.

elnoralittle · Posted: Tue Oct 07, 2008 12:47 pm Post subject:

I would think that it is only a matter of signatures and notary.
I would think that if the one 'not recorded' was taken to the court it would be put into first mortgage lien position.
I would inquire how though this person was able to get a 'first' mortgage with a mortgage company without clear title, which in this case it seems to me, there might be a title issue.

I would contact whom ever drew up the first note, and then follow up with who closed the second note.

Guest

Actually, the laws are different from state to state. In some states, lien priority is determined by date of attachment (i.e. when the secured debt instrument was signed). In other states, the lender who records first takes priority. Whether the second lender had notice of the first lender's lien on the property might also make a difference. At any rate, it only becomes an issue if the borrower defaults on both loans. For more advice regarding your specific case, please consult a real estate attorney in your jurisdiction.

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