Glenn F. Russell, Jr.
Law Office of Glenn F. Russell, Jr.
Fall River, MA
If your lender is seeking to foreclose on your home, and you live in a state that recognizes a type of property ownership known as “Tenancy by the Entirety”, both spouses’ signatures are required to be on all of the loan and property documentation when you purchased your home.
Tenancy by the entirety is recognized in 28 States, including Massachusetts, Florida, the District of Columbia, and Michigan (Real Estate only). Tenancy by the entirety is like a joint tenancy, in a tenancy by the entirety, creditors of one spouse usually can’t come after the indebted spouse’s portion of the property, as is the case with joint ownership.
In some states (like Massachusetts) when married couples purchase property, it is automatically transferred to them as a tenancy by the entirety, unless the couple specifically states that the property is to be transferred as some other type of estate (such as joint tenants). In other states, couples have to specifically state that the title be transferred this way.
If the property was transferred as a tenancy by the entirety, in most cases the foreclosing lender will not be able to foreclose and sell you property, but will be able to place a lien on the property equal to the spouse’s share who did sign the loan documents, as long as the couple remains married, and alive. However this share is only what is called a “contingent” interest, meaning that the lender would only take actual ownership of the property if the non-signing pre-deceased the signing spouse. If the couple divorced, the lender could now begin the foreclosure process.
For example, say Fred and Wilma bought a home while they were married, and received title to the property as tenants by the entirety. In 2005 Fred decides he is going to take a second loan on the property. Fred contacts Mr. Slate at Bedrock Mortgage, who promptly sends a representative out to Fred’s home to have him fill out the loan application. In the rush to get as many loans as possible, Bedrock Mortgage does not realize the names of both spouses have to be on the loan. The lender is now only left with the possibility it may acquire the property, and it cannot currently foreclose while the couple is married, and both are alive.
During the “mortgage frenzy” over the past 7 years, mortgage brokers could not keep up with the paperwork, and became very sloppy, or worse. Because of this fact, many times these people were in such a rush, and lacked the knowledge about this issue, to even ask for both signatures.
So, if you are married and being threatened with foreclosure and you happen to live in a state that recognizes tenancy by the entirety, check your mortgage deed to see if that is the type of title you have to your property. If the answer is yes, then carefully review all of your mortgage loan documents to see if both of your signatures are on all of the paper work, especially the mortgage note. If you find that your signatures are not on the note, you may have a very real chance to tell your lender “Oh No You Don’t!
Attorney Russell is licensed to practice law in Massachusetts and Connecticut, and has decided to base his practice in the area of foreclosure defense, and related areas of the law such as bankruptcy, and divorce. You can learn more at www.foreclosuresinmass.com. He can be reached by phone at (508) 324-4545.
Prior to becoming a licensed attorney, he was a professional Jai Alai player in West Palm Beach, and Quincy Florida, as well as Newport, RI.