Expert: Todd C. Menard - 2/3/2008

Question
In April of 2007 I purchased my first home in New York.  My fiancé was my real estate.  At the closing I was told that Dave (my fiancé) needed to be there to sign some paperwork.  I assume he was signing the paperwork as my real estate.  Turns out he was signing because he had his name put on the deed.  My name is the only name on the mortgage.  I tried to have his name taken off, but was told the paperwork was already filed.  The following week I applied for a home equity loan for 14,000.00 to make repairs.  The home was purchased for less than its value due to the repairs needed (had no furnace, burst water pipes, etc.)  When I went to pick up the check, I was told that Dave had child support warrants for past due support in the amount of 7,800.00.  Child support had already placed a lien on my house.  If I accepted the home equity loan, 7,800.00 would immediately be taken from the 14,000.00 loan amount to pay off the lien.  I did not accept the check.  I asked Dave about the back child support and he said he forgot to tell me.  He then said he didn’t think the lien would be placed on the property that fast.  He figured the home equity loan would go through before the lien.  He then proceeded to state that his boss (owner of the real estate agency) was shocked at how fast the lien went on the house.  A few months ago I found out that he told his father he was putting is name on the deed in case anything happened between us, he would get half the house.  I should also mention, he contributes very little to the household.  I recently had to file bankruptcy due to the credit cards he ran up (I did not reaffirm the mortgage on the house).  He obviously knew what he was doing when he put his name on the deed.

Of course we are splitting up.  I want to keep my house, but he will not sign off.  Is there anything I can do to have his name taken off the deed?

Any help would be greatly appreciated.


Answer
Hello Jane - Since the issues to your question involve more than real estate I would first and only recommend that you seek legal assistance as soon as possible. As far as the deed (lien) scenario the rule is "first in time first in line". This means at the point of sale the proceeds are to be disbursed according to the priority of lien. I would recommend that you also ask an real estate attorney in your state if the property is further encumbered with a second mortgage (or home equity loan) does the child support lien have any right to the funds? Usually, the second position mortgage will not approve the mortgage if there is senior lien against the property that would position the mortgage in a worse than second position. In other words many people borrow against their home equity for the purpose to repair the premises or to pay off bills, etc. The lender stills allows the individual to borrow the money but it in no way obligates the homeowner to use the money for any specific lien or expense. So removal does not appear to be the objective. The objective may be to determine if the child support lien has any right to the funds. Of course there could also be some local state statutes violated if the real estate agent (Your fiance) had advanced knowledge of the situation and potentially created the scenario with the intent to use your property to satisfy his debt without you having any knowledge of his intent to commit fraud. Finally, another avenue may be with the local or state real estate association to determine if his actions were consistent with his obligations to you as a REALTOR (providing he is a member of NAR)in the National Association of REALTORS Code of Ethics. This document is available online and found at realtor.com or the local or state association may be able to provide you with a copy. Understand, ethics is for education only. There is no cash award to the complainant only potential penalties and education to the respondent if found in violation of an Article. You also indicated you did not know why he had to be at the signing.. and the title agency or closing attorney should have disclosed why he was signing and what the affect of the instrument was. Since I am not an attorney this is not to be construed as legal advice. The purpose of my reply is to provide your thought process with a few avenues to pursue knowing there are many issues within your question and situation. Hope this was of some assistance. - Todd C. Menard