Divorce and Refinance Issues: Protect Yourself

Divorce and refinance issues often come hand in hand.  Protect yourself from fraud by keeping copies of your mortgage papers updated.

Q: My ex-husband, while we were still married several years ago, refinanced our home without my knowledge. The home was in both of our names but he was allowed to do it as a single man. My name is nowhere on the loan documents. He received about $100,000 cash from the refinancing.

My attorney found out about this money while collecting information for my divorce. I am not listed on the new mortgage papers. I have been bothered by this for the several years. I am sure that what was done to me was not legal.  Can you please advise?

A: You should know it would be highly unusual and improbable that a lender would refinance a loan on a home without the consent of all of the owners. Several scenarios could describe what may have happened to you.

First, you thought you were on the title to the home when only your husband’s name was on the title. Second, your husband either had you sign your ownership of the home over to him or he forged your name on a deed conveying ownership of the home from both of your names to your name, thereby allowing him to refinance the loan on the property and strip out the equity.

What we would suggest you do is have your attorney do a bit of digging to get a handle on the ownership history of the home. Your attorney should be able to obtain copies of the documents that might show when (and if) you owned the property and when you “transferred” the property.

With the first document, you will understand whether you were an owner of the home, and when. With the second document, you will see when you ceased owning the home. That second document will show you who signed the document. If you recognize the signature, you may have signed it and not known what you were signing. If you see the document and determine that your signature on the document is not yours, you will know that your signature was forged.

However, it’s been a number of years since this transaction occurred and that does not help your case. If you’ve known about it for some time and have done nothing, you might be in trouble. For now, we’ll assume that you can take action in either of these situations.

And, by the way, if the bank “refinanced” the property, when you were on title, and they were sloppy and failed to get your signature, the bank will be in trouble, as they may not have a valid lien on the home. It might still pose problems for you, and you might need to work with your attorney to determine what rights you might have under the laws of your state against this lender.

The bank could claim that they have a valid lien on the property up to the value of the old loan, but they may have trouble enforcing the full amount of the lien. There may be some remedy for you in dealing directly with the bank on this issue. On the other hand, your attorney might have to get involved with them.

If your husband forged your name on the deed and took your name off the title to the home, you have a fraud issue. In this circumstance, you’d have to claim that your hands were clean throughout the process. You can’t go after your husband or have a claim against the bank when you benefitted from the fraud or had a part in it. We’re not suggesting that you did, but you certainly have to have clean hands along the way.

Again, even if your husband forged your name on a document, you might be able to get your name restored on the title to the property with your husband, but the lien of the lender may or may not be valid. Depending on the laws in your state, the lender may have a partially valid lien on the home or, depending on the circumstances; the lender’s lien might be invalidated by a court. Your attorney could help walk you through these issues.

Now, if you signed the deed and didn’t know what you were signing, that may be on you. You may be able to deal with that issue through the divorce, but most people have to be responsible for knowing and understanding what they are signing.

Given your predicament, it’s good that you are using an attorney for your divorce. If you find that there has been fraud, you may have to file a police report on that fraud and notify the lender. We urge you to research and get as much information as possible. When your husband refinanced the property, you might have been aware of what he was doing and the law does not take kindly to people that sit by and see a problem develop and not work to stop it.

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