My ex husband and I have been divorced for 4 yrs. As part of our divorce, I agreed to move out only if my ex bought me out of our house whic...

Question

My ex husband and I have been divorced for 4 yrs. As part of our divorce, I agreed to move out only if my ex bought me out of our house which he did. In our divorce decree it specifically states that he is to remove my name from all joint accounts, but he still has my name listed on the mortgage of his house. I have asked my ex several times to remove my name from the mortgage, but my requests have fallen on deaf ears. Since our divorce, I put a lien on his house in order to collect on the alimony payments which he still owes me should he decide to sell. Since my name is still listed on the mortgage of his house, does this mean that the house is still partly mine?

Also, how can I enforce that he removes my name from the mortgage?

Thank you.

Answer

You are blinded to the fact that a third party is involved here, which is not a party to your divorce.

When you were together you both signed a promissory note for a loan. That loan was secured most likely by a deed of trust that you both signed, which encumbered the property as security for the loan. You call it a mortgage, but you don't really have a mortgage, as that is a different security instrument that is hardly ever used in California.

The third party is the bank. The bank could be the original bank, or a bank that bought the promissory note from the original bank. You promised to pay back the loan, and as it stands right now, you are personally liable to repay the loan, even though you are no longer on title. The bank is not a party to the divorce, and it is up to them whether or not they want to release you from the promissory note.

The only way this is usually done is with a refinance. The economy is not good for this right now, and if the bank does not want to refinance, you can't force it to refinance. It simply is not your husband's decision on who is going to be on the promissory note to the bank, and the joint debt that you signed is not considered a joint account.

Answer

In some instances the court may consider forcing a sale if your ex has the ability to refinance but refuses to do so.

Answer

The information in Mr. Roach's answer is mostly correct, but also mostly irrelevant to your question. Ms. Kock's answer is also correct, but leaves out the first step.

It is true that the lender is under no obligation and cannot be ordered to release you from the debt or give your ex a refinance to take you off the account. But that doesn't really matter. The bank must take the money if your husband pays off the loan, and there are two ways to do that. 1. is just pay it off if he has the cash, 2. is to take out a new loan in just his name. The divorce decree contemplates that he will do one or the other. He should not have signed the MSA, or accepted a court order that he remove you from the mortgage if he did not intend to or was incapable of doing one or the other. Your remedy is to file an "OSC" (order to show cause) why he should not be held in contempt of court for failing to comply with the terms of the divorce decree. If he is found in contempt he will be ordered to get a new loan within a certain time. If he fails to do so, you go in on a second contempt proceeding and ask that the house be sold.