Legal Question in Real Estate Law in Indiana

Re: Both names on morgage, his name on note

A foreclosure action must name as parties not only the person who signed the mortgage and note but also anyone who has a beneficial interest in the property, which would include a spouse to whom the property is deeded but might not be liable on the mortgage. You need to answer the foreclosure complaint as to your interest in the property and claim as an affirmative defense that you are not liable on the mortgage. You want the judgment that is ultimately entered to say that your interest in the property is inferior to the mortgage company and that you are not liable for any portion of the mortgage. You would be entitled to share in proceeds in excess of what it takes to satisfy the mortgage.