Legal Question in Real Estate Law in California

Re: removing name on a mortgage deed

The term "Mortgage deed" is unfamiliar to me. I am going to have to answer based on pure guesswork as to what your problem is, and what you are thinking about doing to escape the problem.

My guess is that you are a co-borrower or guarantor on a loan, probably a note secured by a deed of trust, on your brother's house, and you are concerned that a downgrade of your credit score will somehow act to trigger a default on that loan.

First, I have to say that I'm not sure your lack of continued credit worthiness would be a default under your brother's loan. This is a pretty technical area of the law, and deciding this question even tentatively would require reading the fine print of your obligation. However, as a general matter, a guarantor bears no greater obligation to the creditor than the primary borrower, and since your brother's future credit rating is not an issue, I think it somewhat unlikely that your future credit rating could be an issue that would, as you put it, reduce the protection on his property.

Next, you are wondering about how to have your name removed as a guarantor; at least, that's what I'm guessing you are asking. The one sure way is to pay off the loan you guaranteed by refinancing it with a new loan that you haven't guaranteed. This may not be practical and indeed may be unnecessary.

There is a popular legend that in some male-dominated cultures that a man can divorce his wife by reciting three times "I divorce thee!" Whether this is true or not, there is no similar way for a co-borrower, guarantor or surety to remove himself or herself from the obligation to make good the loan if the primary obligor defaults. Consider, for a moment, why ANYONE would accept a co-signature or guarantee if the co-signer or guarantor could, at any time, fill out a form and thereby get off the hook. That would be a guarantee with no substance whatsoever! Conseqently, there is no "form" you can fill out to rid yourself of the guarantee other that those in your checkbook.

Consequently, guarantees don't work that way. If you co-sign, guarantee or act as surety for someone else's obligations, you are STUCK-O; that's why the lender agreed to do the deal in the first place. The only way to ever get off the hook is for one of you to pay what you agreed to pay when he accepted the lender's money.