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Not on Mortgage Note or Deed But Being Sued for Foreclosure?

Hi, I'm stressing big time trying to determine if I am financially liable in my situation: I received a Summons and Notice of Lis Pendens for the foreclosure on a home I USED TO live in with my former fiance. At the time we wanted to buy the home my credit was so-so and his was excellent, he didnt want a bad interest rate on the loan so he insisted we run only his credit to get the loan. Problem is, we are no longer together, I moved out a year ago, and I found out he walked away from the home in June and hasnt made a payment since April 2008 now its being foreclosed on and they are sending me notices as though I'm involved. If I am not on the mortgage note, but am mentioned on mortgage paperwork that we processed at closing (since I was paying 1/2 the mortgage this was to establish residency and protect me as far as I knew), I am no longer on the deed (I double checked with the county and its in his name only), all taxes and property appraiser records show his name only, he was the only one who signed and initialed the actual mortgage note and all payments and paperwork from Countrywide were always in his name only. If this is the case, why am I being sued? or is that just a formality ? I need to know if they can mess with my credit (which I have finally brought up to 700's) Can you please set my mind straight one way or the other?? Thanks so much!! (I'm in Florida)

gmakerley's picture
gmakerley | Joined: November 9, 2007 07:36 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

gone, you mentioned that you are "no longer on the deed." that gives me the impression that you once were. if so, that's why you're being served. if you were an owner of this property at the time that the mortgage was granted, then the foreclosing lender must serve you.

that you no longer have any interest in the property may not be relevant to them (depending on the jurisdiction you're located in), or perhaps they simply overlooked your lack of ownership interest in the property.

what i'd suggest now is for you to contact an attorney who can iron out these facts for you and eliminate your consternation.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Thanks George but I already went that route and the attorney wanted $1700.00 before he would even speak with me, if I had the money that's what I would have done, I don't have anything (I wasted thousands of dollars fixing up the house that my ex fiance has let go) my savings is completely gone now. I was trying to find an answer in general if someone isnt on the note and no bills ever came in their name and they arent on the deed (but were in 2006) would they be financially responsible is what I need to know, if anyone out there can tell me this I would greatly appreciate it

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi GoneWest2Again!

It would have been better if you would have followed George M. Akerley's advice of consulting an attorney. However, as it is not possible for you, I would suggest you to speak to the lender and show him the documents which states that your former fiance had taken the loan. You can also show the document which states that you presently do not have any interest in the property. May be the lender would consider your case.

Thanks.

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jheard's picture
jheard | Joined: December 12, 2007 08:20 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

They probably sued you as a formality, but you cannot let this go. If you ignore it, you will receive a foreclosure judgment on your credit history. In the future, creditors will not be able to tell whether you were on the mortgage or not, it will just appear as a foreclosure judgment on the public record.

You can do this yourself, or you can hire that attorney. $1,700 is about right for a fee for this. You will likely recover attorney's fees at the end, so you will probably get this money back.

First, you must respond to the lawsuit. You must file a written response with the court. There is usually a form for this; check the clerk's office, or your local county law library.

Next, prepare, sign and notarize, and file a Quitclaim deed. Then, send a copy to the plaintiff's attorney and request in writing to be dismissed from the lawsuit. If they deny your request threaten to file a "motion for summary judgment with costs". You can also raise the issue at the first court appearance (usually a status conference).

If the attorney still denies it, or more likely, just ignores you, you should hire an attorney to file the motion. Include a request for attorney's fees. If the judge denies the request at the motion, you can request attorney's fees when judgment is entered in your favor.

Good luck! Do not ignore this.

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gmakerley's picture
gmakerley | Joined: November 9, 2007 07:36 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

despite your disclaimer, jheard, i recognize good advice from a legal standpoint.

as i've said previously, i am so gratified that quality people with quality advice have happened along on this site. i hope gonewest follows your advice, and that in doing so, it will be fruitful.

keep it up!

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I spoke with my attorney about this situation. My husband lost his job in 2008, We moved into our home in 2005.. our mortgage is $2K a month for a 1600 sq ft home. The reason I describe the home is because $2K a month sound like you're living in a mansion and we're not. We tried to get modification help from 2 companies, visited the congressman's office, wrote to the white house, you name it. Nobody is able to help us and we have just recently been served with an action for a summary judgment for foreclosure. My attorney says that I need to contact the court house because I am not on the note, but being sued. He said this is called Malicious Abuse of Process. He also feels that because this is damaging to my credit report that I will have an action against the bank for including me in the suit.

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gmakerley's picture
gmakerley | Joined: November 9, 2007 07:36 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

the question here, then, is this: are you an owner of this house of yours? if you are, then the lender is required to include you as a defendant in its suit. any party - you, your husband, another lienholder, the taxing authority and on and on - must be included in order for the lawsuit to be valid.

if you are an owner, then i question the credentials of your lawyer for telling you that you're being wrongfully sued.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I signed for a Mortgage for my relatives about. This makes me financial responsible for the Mortgage I realize this. They are making payments.
My question is? They are on the Deed of the house.
The agreement (verbal) was 3 conditions.
1) Get a copy of Credit History and start rebuilding within due time they
Have the mortgage in there OWN name at a reasonable APR rate.
I would sign the House over.
2) Go for marriage counseling.
3) Go on a budget Plan and take a 101 class.
At this stage none of the above has happen. Spoken with both parties and they refuse to sign the deed over to me. I didn’t sign-up for this for 3o yrs. This has been clearly stated from the very beginning. What ARE my rights for being such a Trusting FOOL for relative?

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adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Guest,

As the agreement has been verbal, there is hardly anything you can do in this regard. Nevertheless, I would suggest you to contact an attorney and check out if he can help you in this regard.

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gmakerley's picture
gmakerley | Joined: November 9, 2007 07:36 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

dear help me...cosigning is a risky business with anyone, be it family or not. my first question to you is this: was there a specified timeframe in your verbal agreement as to when the counseling, the class, the new mortgage were to take place? if not, you could be in for a long haul.

i would have to think that a verbal agreement will stick up in court, with the right lawyer on your side, anyway. if your family members will own up to the reality of the agreement in court, that ought to result in a judgment in your favor.

of course, you didn't say when you did this act of kindness. if it was a few years ago, before the markets changed for the worse, then that will raise another whole group of issues. for example, in this economic climate, are they even able to [url=http://www.mortgagefit.com/refinance.html]refinance[/url]? have they suffered economically as have the rest of us? have they been able or unable to effectively attack the credit issues you mentioned? obviously these will all affect their ability to refinance.

the difficult situation we are all in now is causing much agita with cosigners, as people for whom they've signed are simply unable to do what the original master plan was for them to do - refinance and take out the cosigner asap.

get a lawyer...see if you've got a leg to stand on in court...and continue to make entreaties to your relatives to do the right thing.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

my husband is the only one on this loan, (my name is NOT),yet they include me in the foreclosure suit, (this mortgage company, in the past would NOT discuss anything with me about this account..they said I was not on the account) .Husband had to fax written authorization to them. So can they still sued me also,when they themselves have said i wasn't on the account

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adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Welcome bobbie,

As your name is not mentioned on the mortgage docs, you are not liable for the loan. The lender cannot sue you for the dues.

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gmakerley's picture
gmakerley | Joined: November 9, 2007 07:36 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I'm late in chiming in, but if you are an owner of the property, Bobbie, then the lender must take action against you. They are also correct in not allowing you to have information about the loan, because you're not a borrower. In order for the bank to foreclose, they must act against all owners of the property; hence you're included, as you must have an ownership interest in the home.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My stepmother and father died within weeks of each other early in 2010. I was left insurance policy cash, but stepsib was made executor and residual legatee for everything in the house, including the house. She is disputing the insurance inheritance through legal means, but I hadn't heard anything from my lawyer in FLA in months about it.

Now I learn (by online research; no one has sent me any documents) that I am named by Wells Fargo as a party (with stepsib and "John Doe") to a foreclosure lawsuit. How can I be sued if I never had my name on the deed/title, the mortgage/lien, nor received ownership in the property through my dad's will?

Could she have named me a part-owner of the property without my knowledge or informing my lawyer? How do I prove this property is not mine, and that I have never had any legal or financial interest in it?

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Jeannie!

Welcome to forums!

If your name is not on the mortgage, then you won't be liable to pay the loan and the foreclosure won't be listed in your name. You should contact the lender and sort out the matter. Your step-sibling cannot transfer the property in his/her name without your signatures or permission.

Sussane

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Thanks, Sussane. The papers actually arrived this morning. The attorney I was working with in FL (about the other inheritance issue) says that since my name is nowhere associated with the lien or deed, I should ignore it. Do you recommend I just send a letter direct to the lender, or should I respond to the legal papers I've received? Would it need to be notarized or anything, or just state the facts?

Thanks! Jeannie

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Jeannie!

Welcome to forums!

As your name is not on the mortgage note or on the deed, you can send a formal letter mentioning the same to the lender.

Feel free to ask if you've further queries.

Sussane

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I have a lien on a house that is now in foreclosure. Not in my name and never has been. I am named as a defendant, and am really ticked off about this. I was served by a sheriff, and it states that the other party owes nearly 180K but states if I dont file ( which cost to file and answer) then I can lose by defautl. I know the mortage co has first lien, but why was I sued. My name was in the paper along with this defendant who owns the home. I am stressed and feel very upset about this. Although they have a copy of my lien, what was filed in the local paper states I am a def, along with the loser that stopped making his payments. I am owed from this homeowner and now I am sued? Just don't get it. They could have sent me a form to sign off, but I am sued and not a happy camper. Please help ! Thanks

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Robinbobbin,

I guess there has been some kind of misunderstanding which needs to be cleared. You should contact a real estate attorney and he will help you in dealing with this matter.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My husband and I are about to get a divorce. My husband just moved in a house he bought. My name is not in the mortgage but my name appears as the spouse. If he doesn't pay the mortgage, am I responsible for it. We are still not divorced and this is in the state of Florida.

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Janetlabori,

If your name is not mentioned on the mortgage documents, then you won't be liable for paying the loan payments. The lender won't be able to come after you for the payments.

Thanks

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

[justify:a72eb37310]There seems to be a lot of good information here mixed with some confusing misstatements so I thought I would try to explain why some people are getting sued in foreclosure when they don't think they should be.

Most people, even most attorneys, speak about house loans by referring to the "mortgage". You will frequently hear people say that they haven't paid their mortgage payment or that they are behind on their mortgage. Neither is really correct.

The MORTGAGE is not a promise to pay. The promise to pay is the NOTE. The note is basically an IOU that describes the terms under which the lender agreed to loan you money. The note itself is not secured and is similar to borrowing money from a friend or running up a credit card debt. You still owe the money that you borrowed, but if the lender wants to force you to pay it back they will have to sue you.

A mortgage is a security device that attaches that promise to pay to some form of collateral. Typically, the collateral is the house that you used the money to buy, but it could be attached to a different asset as well. If you sign the mortgage you are agreeing to allow the promise to pay to be secured by your property interest in that asset. You are not agreeing to pay the underlying debt. The most that you could lose if the borrower defaults is your interest in the property.

If the person who promised to repay the note fails to do so then the lender can "foreclose" on the mortgage and force the sale of the asset to satisfy the unpaid debt.

When a lender forecloses on a mortgage the are essentially eliminating any and all claims to the property that are inferior to their mortgage lien. However, in order to foreclose the lender must give everyone with an inferior lien notice of their intent to foreclose. This means that anyone with ANY property interest has to be made a defendant in the foreclosure lawsuit.

If you are a tenant living in a rental property you will be sued in the foreclosure case. If you are a spouse (even if you are not on the deed/note/mortgage) you will be sued in the foreclosure case. If your grandfather died and there is even the slightest chance that you might have some inheritable property rights you will be sued in the foreclosure case. The lenders will even sue imaginary parties such as "unknown Tenant #1" or "unknown Spouse #1" just to make sure that everyone who may have an interest is named in the lawsuit.

The important point is that being named as a defendant in a foreclosure lawsuit will not, in and of itself, damage your credit or make you liable for the promise to pay. You are merely there so that you can, if you want, participate in the foreclosure action and try to protect your property rights. If you choose not to participate a foreclosure judgment will be entered against you but it merely forecloses any property interests that you may have had in the property. It does not count as a foreclosure judgment for purposes of your credit and they can not use that judgment to make you responsible for a promise to pay that you never signed.[/justify:a72eb37310]

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smith.sussane's picture
smith.sussane | Joined: September 18, 2008 09:57 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Thanks for sharing the information!! :)

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

My ex is being sued for foreclosure on a house he purchase before we were married. He refinanced during our marriage, but I was not on the note, mortgage or deed. I'm about to be served papers in the case and am wondering what the legal implications might be.

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jameshogg's picture
jameshogg | Joined: December 20, 2005 02:58 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi sandy,

If your name is not mentioned on the mortgage docs or the property deed, then you will not be considered liable for anything. In that case, the lender will not send you any legal notice.

Thanks

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