My ex girlfriend moved out 3 months ago and I have been making the payments on this home we own together pretty much for the past year. She helped out a little when we were together and she was still living there but since she left I have been making the full payment because she left the state and doesn’t have a job. Our loan is assumable however I do not qualify for the assumption based on my income. I don’t make enough. I can afford to make the payments but the bank doesn’t see it that way based on percentage. I cannot refinance because the house will not appraise for what I owe, the market being down right now. I don’t want to do a short sale because this was meant to be a long term investment for me. She won't sign a quit claim deed because she says she will still be on the loan. Do I have any other options to get her name off? What to do??

I see no other options - you cannot afford to refinance and you don't make enough to carry the mortgage by yourself. I would be concerned that she will demand to be taken off and then you will really have a problem!

Short of refinancing the only way to do that is to get the bank to agree to it.. and they clearly won't because it reduces their likelihood to collect the debt if you alone default.

It's a legally defendible contract. They have no incentive to change it. Its not in their favor or advantage to do so. If you could find a way to do make it to their favor, then they might be willing to talk.

So would a real estate attorney even be able to help me in this instance? Or is that a waste of time?

Unless you can get a loan somewhere from somebody, there is nothing that can be done, You can not make them take a name off a loan,

Also as equity grows in the home, since her name is on the deed, she will still owe 1/2 so at some point she may not just want to sign it over but to be paid for her 1/2 of the equity in the home.

Is there a legal remedy to make her pay her half?

Can she force me to sell? It would have to be a short sale and she would be responsible for half of the difference between the sale and what we actually owe.

Forcing her to pay and short sale are a last resort. Im working with a bank right now to re-fi but my back ratio is 60%

You do realise in some states the lender can still sue you for the deficiency from what the sale price is and what you owe in either a short sale or even a foreclosure.

And even if that is forgiven.. the IRS declares that is income and thus taxible in that year as income.

Be careful what you choose...

I am aware of that and that's why short sale would be a last resort and that's only if she could force me to do that. I don't think she would because she would get the summons as well. I do think she would force a sale when the market turns around and we actually have equity though

I just wanted to know if there was a way to force her to pay, maybe small claims.

Every time I make that payment, I cringe because it makes her look good. Im just trying to explore all options at this point and thank you for your input

Not sure there... but as long as her name is on the deed... she can force a partition sale... then you are essentually screwed if you have been paying for everything. And she could do that even before the market turns around. It may not make a lot of sense... but people don't always make decisions based on logic.

What state is this located. Perhaps someone familiar with the laws of your state can offer more precise answers.

She's told me that she doesn't want an interest in the property, just wants her name taken off the loan, and I do believe her there. I also believed it when she said that she wanted to be with me forever, so there's that. That's why I'm cautious and want to expect the worst.

I live in Florida so if anyone has any knowledge about this I'm all ears!

Whatever you do... make sure removing her name from the deed occurs in conjunction with the refinance which is really about the only way her name is coming off any loan.. Or you might end up with the obligation while she retains half ownership.

Yeah... people can say one thing, then turn around and do another if and when it suites them. Happens all the time. I'm sure you understand that at this point.

Hell, I wouldn't even have a joint checking account with my wife before we married for much the same reason, and yeah.. she did want one back then too.

I've been in a number of relationships with people I wanted to be with forever but that's for another Board. Who knows, things change?

I would take this problem straight to an Attorney and see what makes sense/what is available to you. Other than that (and Smoothy gives good advice!) it's all pretty much guessing.

I was DIVORCED and couldn't get ex-husband off mortgage/deed. Court said to take him off; Bank said that the mortgage was not controlled by the Bank (and the Bank was right). Had to simply ride it out until I could re-finance in my name alone.

I was more afraid that he would run up debts and there would be liens against the property than I was about my ability to pay without his help.

That's something you have to look at - Judgments, liens, things of that nature.

I want to see an attorney but just about every penny I have goes toward the mortgage, bills and CC's. Thank you for your input. I may just have to ride it out and see where things are at in 6 months or a year.

It just sucks because although we are not together anymore, it pains me that we still have this obligation together and she just disregards that. I just want her out of my life completely and this just makes me think about her when I shouldn't have to anymore

Set aside a little money every week for a lawyers consoltation fee, say in a jar in your underwear drawer. In a fairly short period you will have it. Because a lot can happen in 6 months time... and it may not be what you was wanting.

That's a good idea. I think I can save a little bit of money over the next couple of months.

I don't want to let this go because sometimes I wonder if she may be up to something so I want to take care of it and be done with it, however I think I may be done trying to force the issue and just see where I am at at a later point in time.

Thanks for the support. I love this place. It always makes me feel better to know there are people out there that want to help.

A few bucks every few days you will never notice missing... unlike saving specifically to write a check all at once.

That's a trick I used back during my lean times.

And this is a fairly simple situation - I'm not sure that an Attorney will be terribly costly.

I hope you are right and maybe by next month I can save up a few hundred dollars. No more going out and heck, ill go on the ramen diet if I have to!

I would go sooner rather than later - at this point if your girlfriend runs into financial difficulty you could find yourself in a very bad spot.

Its not as simple as you might think with the market being the way it is. Im awaiting to hear back from one more bank and Ill go from there. Im hoping a lawyer might be able to find something that I haven't, like possible abandonment

Im hoping a lawyer might be able to find something that I havent, like possible abandonmentHello new:

As you've learned, there's NOTHING you can do, except grin and bear it. But, I thought I read where this is an "investment" for you, and now I see that you're willing to walk away. That might be the best solution. I wouldn't keep an investment that's (1) worth LESS than I paid, and (2) my partner isn't paying her half, but WILL get HALF of everything I make, if I ever make anything.

Maybe I should rephrase what I said above. It may NOT be the BEST thing for you to do, but it certainly might be the best thing for your ex girlfriend to THINK you're going to do. Of course, she'll be sued along with you, and her credit will be ruined too. Maybe the threat of THAT happening might bring her to her senses.

Or it might not.

excon

... She won't sign a quit claim deed because she says she will still be on the loan. ...

That, to put it bluntly, is her problem.

If she won't voluntarily quitclaim to you, you can sue her for breach of an implied contract with you that she would make half the payments. You would be asking the court to award you title, of course subject to the bank's mortgage.

The bank would be unaffected because they would still have the right to foreclose, or to proceed against both of you in the event of default.

Thanks AK, I believe this is the answer I was looking for. Im going to put off some of the lesser priorities in my life to go see a real estate attorney.

You know its funny, I am studying to be a paralegal with emphasis on real estate law, I just haven't got to those classes yet. I guess when I get to that section in class I might be prepared. Thanks so much for your input!

Ok, so I just returned from the base legal office (they offer free consultations to certain members) and unfortunately they do not go too much into real estate but the lawyer I talked to gave me some options.

His first suggestion was to give her a notarized letter that I would promise to continue making payments if she signs the deed. Maybe this would make her feel more at ease about signing the document. If that didn’t work, I could offer her a bribe(I don’t think this will work because she is not about money.)

He referred me to the Florida bar where I could get a 30 min consultation for $25. At that point I could speak to a Real Estate attorney and see about suing for breach of contract. Estimated ballpark $5-6k so that’s not too feasible for me right now.

I guess my question is, should I see the lawyer first and see what he has to say or try the promise letter first? It’s been 2 months since I have spoken to her so she may be calm enough to approach. What do you all think?

Hello again, New:

Couple things.

If it were me, I would NEVER take myself off the deed to a property as long as I was OBLIGATED to pay for it. She'll NEVER do that no matter how many notarized letters you prepare, and I don't blame her, either. Besides, she already KNOWS you're going to make the payments. You're living there, for crying out loud.

Plus, if you DO manage to get her to sign a quitclaim deed, as soon as you record it, the bank will most likely call in your loan. They WANT her living there.

In my view, AK's suggestion is best, and costs the most. My solution, however, is pretty cheap. You could do one, and if it didn't work, you could still do the other.

excon

...
Plus, if you DO manage to get her to sign a quitclaim deed, as soon as you record it, the bank will most likely call in your loan. They WANT her living there.

In my view, AK's suggestion is best, and costs the most. ...

Actually, my suggestion was to in effect force her to "sign" a QC. It would amount to the same thing. Check the terms of your mortgage, but I doubt that a QC subject to the bank's interest would violate it. An in any case,
-recorded deeds and the like don't just pop up on some banker's computer screen - someone would have to request a title report for some reason.
-in this current economic climate banks aren't looking for excuses to foreclose payiing, upside-down loans. So even if the bank became aware of it (unlikely), and even it they had the legal right to do so (doubtful), I don't see them doing anything about it.

Well in any case, I get paid next week so Im going to see a realestate attorney and see what they have to say. I don't forsee her voluntarily signing the deed over to me.

If she won't voluntarily quitclaim to you, you can sue her for breach of an implied contract with you that she would make half the payments. You would be asking the court to award you title, of course subject to the bank's mortgage.

Went and saw a real estate attorney on Thursday. I can't sue her as we entered into this contract together. Not 50/50, but as a partition. The problem is there is nothing in writing that says she would make half of the payments

Where do you get this information. can you reference a case? I have Lexis Nexis access

... Where do you get this information.? can you reference a case? I have Lexis Nexis access

No, I have no specific "information". It's my opinion as to what a judge might be persuaded to decide. One line of questioning for the two of you, were such a case go to trial, would go something like this:


"Did the two of you discuss which of you would make the the payments?"

[If so,] "what was the plan?"

"Who paid the mortgage when you were living together?"

No, I have no specific "information". It's my opinion as to what a judge might be persuaded to decide. One line of questioning for the two of you, were such a case go to trial, would go something like this:


"Did the two of you discuss which of you would make the the payments?"

[If so,] "what was the plan?"

"Who paid the mortgage when you were living together?"

I thought this was the legal answer (?):

That, to put it bluntly, is her problem.

If she won't voluntarily quitclaim to you, you can sue her for breach of an implied contract with you that she would make half the payments. You would be asking the court to award you title, of course subject to the bank's mortgage.

The bank would be unaffected because they would still have the right to foreclose, or to proceed against both of you in the event of default.

I thought this was the legal answer ...[/I]

It is.

The lawyer he went to disagrees with my answer evidently. It happens.

I'm not willing to do extensive research though. Sorry.

It is.

The lawyer he went to disagrees with my answer evidently. It happens.

I'm not willing to do extensive research though. Sorry.


Just for the record I didn't ask you to do "extensive research." I wondered why your opinions differed so greatly.

Just for the record I didn't ask you to do "extensive research." I wondered why your opinions differed so greatly.

No, you didn't. OP did though:


... Where do you get this information.? can you reference a case? I have Lexis Nexis access

I was addressing Newguy when I wrote that about research.

Now, as to why our opinions differ? I don't precisely understand what the other lawyer's opinion is:


... I can't sue her as we entered into this contract together. not 50/50, but as a partition. The problem is there is nothing in writing that says she would make half of the payments
...

What is meant by "as a partition"? Sure, he could sue her for partition, but I honestly don't know what they mean by "entered into [a] contract... as a partition". My suggestion was that OP sue her on the basis of an "implied" contract (http://en.wikipedia.org/wiki/Implied_contract), not an explicit (albeit oral) contract. In other words, the court should arrive at a default 50/50 agreement if it is determined that they simply never thought that far ahead, but didn't contemplate that he would make all the payments. I'd love to be somewhere in the courtroom if she tries to, with a straight face, testify that she did think that. :)

Actually, it doesn't have to be 50/50. If the implied contract is that she pay something every month, she has breached that obligation, and one remedy would be to deny her the "benefit of the bargain", to wit: an interest in the realty.

This is where finding precedent would indeed be helpful. But, as I suggested, I am not willing to find it for him, free of charge.

What is meant by "as a partition"? Sure, he could sue her for partition, but I honestly don't know what they mean by "entered into [a] contract ... as a partition".

Because the house cannot be physically split in half. She could sue me based on partition and force me to sell. I am told there is no defense for this. I doubt she would do this because she would have to pay a retainer and she will still be half responsible for the difference we owe.



Actually, it doesn't have to be 50/50. If the implied contract is that she pay something every month, she has breached that obligation, and one remedy would be to deny her the "benefit of the bargain", to wit: an interest in the realty.


Unfortunately there was no agreement as to "her paying half". We agreed to pay. They (the bank) don't care who pays what percentage.

Unfortunately there was no agreement as to "her paying half". ...

Yes, I know. Read the link I gave you about an "implied" contract". It's for those cases in which the parties didn't agree but (had they thought about it) would have. The court provides reasonable contractual terms when the parties failed to.


... they (the bank) dont care who pays what percentage.

Obviously. But you should.

I have decided to stop making payments and go into foreclosure. About 2 months ago I got her to agree to sign a quit claim deed and she backed out 3 weeks later. I had it done up and sent to her and everything. I told her a month ago, when she refused to sign the deed I would stop making payments. I am now 23 days late. I haven't heard from her and I plan to stick to my decision. Yea, my credit is going to go to sh#$ but hey, you WIN some and you LOSE some, right?

Apparently - right.