Legal Question in Real Estate Law in New Jersey

When you refinance, there are 2 basic documents. One is the Note, and the other is the Mortgage. Whoever signs the Note is promising to pay the money. Whoever signs the Mortgage is agreeing to allow the property to serve as collateral (a mortgage lien). All parties with an interest in the property must sign the Mortgage to allow the lien to attach to the property. If you are married and using the property as your principal matrimonial residence, your husband has a right to joint possession of the property. For this reason, spouses must sign the Mortgage even if they don't co-own the property. By doing so, they are not agreeing to be obligated on the loan. They are only agreeing to allow the mortgage to encumber the property. Therefore, your husband must sign the Mortgage even if he will not be signing the Note. If he will not do so, or if you will not let him do so, then the lender will not give you the loan because they will not be able to obtain a valid lien on the property to secure the loan. If you are concerned about not giving your husband an interest in the home in the event of a future divorce, that is another question entirely which I will not discuss in this posting.

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Unless the lender is looking only at his credit because your credit isn't good, you should not have to change legal title. The lender may want your husband to sign the mortgage so that he can't claim marital rights to the property if you default and the bank has to foreclose and take the property back.

Most lenders will not even listen to this reasoning. Consult a real estate lawyer to help you with this.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.

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