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KOCS · Oct 25, 2012, 04:51 PM

Hello,

My new husband singed a quit claim deed on the home he had with his ex wife. The home is in Florida and the Quit Claim was notarized in Georgia, where she now lives. If I understand Florida law correctly, two witnesses are required for a quit claim to be valid. I was present when the quit claim was notarized, along with his ex wife and their seven year old child. I have found a copy of the quit claim and there are two additional signatures of witnesses, the ex wife's new husband and her father. Neither was present at the time of notarization.

The home is currently in foreclosure and his ex wife is claiming she is cleaning it up to rent out, has been paying to mortgage all along, etc. She has maintained my husband is not on he mortgage (according to the mortgage, he is. Every page is initialed by each and his signature is at the end). My husband is named in the foreclosure case, as is the unknown spouse of my husband and his ex wife.

If my husband and possibly I are going to be held responsible for the mortgage, how do we invalidate the quit claim? I am the only witness to who was present. My husband and I were dating at the time

LisaB4657 · Oct 25, 2012, 05:58 PM

It is possible that your husband is on the mortgage but not the mortgage note. They are two separate documents. The note is the promise to pay back the loan. The mortgage is the document that says the lender can foreclose on the property if the loan is not paid back. If he is only on the mortgage and not the note then he will not be responsible for paying back the loan. He is responsible for payment only if he is on the note. You need to find out if he signed the note.

You would not be responsible for payment of the loan at all.

He was named in the foreclosure suit because the lender has to name everyone who may have any ownership claim to the property. Even though he's named in the suit he is responsible for the loan only if he signed the note.

KOCS · Oct 25, 2012, 06:21 PM

On the mortgage the bank filed with the court, my husband is listed as a borrower.

Interesting, I don't know much about real estate law. Actually reading this mortgage states it is a security instrument and the co-signer (which is what my husband is) "is not personally obligated to pay the sums secured by this security instrument", unless he signed the note. His ex wife is not sharing anything, so I'm finding the documents on line from the court.

Essentially, what my husband is concerned with is having the foreclosure on his credit. He paid the down payment from his inheritance from a family member, but that is moot now. His ex wife continues to state she will pay him back when she wins the foreclosure, but no one is holding their breath. I am concerned with having to pay for a home I never lived in or have any property interest.

I am most interested in adding the witnesses after the fact. There was another document notarized at the same time that was not properly shared (husband's fault for not asking).

LisaB4657 · Oct 25, 2012, 06:29 PM

The mortgage would list him as a borrower but as I said earlier, signing the mortgage does not make him responsible for payment of the loan. He is responsible for paying the loan only if he signed the NOTE as a borrower.

If your husband is listed as a defendant in the foreclosure then he shouldn't have to depend on his ex to provide him with copies. He should be receiving copies of everything that gets filed.

Since your husband doesn't know whether he signed the note he really should consider retaining an attorney to represent him, at least just to the point of making sure that he is not financially at risk in this foreclosure. Relying on his ex-wife to take care of things and pay him back is not a very good move. An attorney can review the court filings to make sure that he is not responsible for the loan.

AK lawyer · Oct 25, 2012, 06:46 PM

Originally Posted by KOCS

I... am most interested in adding the witnesses after the fact. ...

I understand you believe there may be something fishy about the quitclaim deed, but what does it matter? Does your husband want to claim he does have some interest in the property which is being foreclosed?

LisaB4657 · Oct 25, 2012, 06:53 PM

Originally Posted by AK lawyer

I understand you believe there may be something fishy about the quitclaim deed, but what does it matter? Does your husband want to claim he does have some interest in the property which is being foreclosed?

If he can have the quit claim deed nullified he can delay the foreclosure by filing a suit for fraud and partition.

But I think it's more important to find out first if he is obligated on the note. If he's not responsible for the note then I think it would be a waste of time and money to get the deed nullified.

AK lawyer · Oct 25, 2012, 06:57 PM

And, if I understand the circumstances, it's not his house anyway. So why should he care to delay the foreclosure? But true; unless he is liable on the note, he doesn't need to argue about the deed.

LisaB4657 · Oct 25, 2012, 07:03 PM

If he's on the note then he'll want to delay the foreclosure long enough to get the house sold and pay off the note.

KOCS · Oct 25, 2012, 07:20 PM

Honestly, the only reason I would want to challenge the quit claim is to prove dishonesty on his ex wife's part on another case. My husband and I live across the country from the property and don't want anything to do with it. Potential liability is my biggest concern.

LisaB4657 · Oct 25, 2012, 07:24 PM

I don't do litigation and my memory of the rules of evidence is sketchy but I seem to remember that evidence of wrongdoing in one matter can't be used as evidence in another matter. But I may not be remembering that correctly. But if I'm right then proving her dishonesty in this case won't help you in the other case.