Powered by RealTown Blogs

Collin County Real Estate Info.

� Dec. 14, 2007 - Mom signed but Dad my be liable too...

Having someone co-sign on a loan is a great way to get into a car or home if you don't have the credit score (or tax returns, for those self employed) to support a purchase. Not that co-signing is just done by Parents (anyone can co-sign), but Parents often co-sign loans for their kids. Be careful though... If you live in one of the nine community property states listed below, one-half of a married couple co-signing usually obligates both to the debt.
Nine Community Property States: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
You see, co-signing makes the co-signer (i.e. Mom & Dad) just as responsible for the debt as the main signer (i.e. Son or Daughter). So, if the co-signer is married, it makes their partner equally responsible. If payments are not made (or made late), it can adversely affect the credit of both the main signer and both co-signers. It is for this reason, the Federal Trade Commission has a web page specifically about co-signing. See it here:
http://www.ftc.gov/bcp/conline/pubs/credit/cosign.shtm

On a related topic, even though one-half of a married couple may be the one to qualify for a loan, and only the one name is on the loan paperwork, BOTH parties need to sign the sales contract in community property states. The reason: even though the wife (for example) may be the one who qualifies for the loan (i.e. makes the money and has good credit), the husband must also agree to buy the home because their assets will jointly pay for the home. Even if he's a stay-at-home Dad (i.e. no income), in community property states, courts have ruled that Mom wouldn't be able to work and pay for the home without Dad watching the kids, cleaning house, running errands, etc. So be careful... if you have a contract to sell your home to one party, and it turns out they have a "better-half", things could get messy if that spouse decides against the purchase (i.e. they never signed the contract and half of the funds to purchase, in theory, belong to them).

Back to the point at hand though (and a common related question): After Mom & Dad have co-signed, how do we get their names off the loan so that they are no longer liable? Well, the mortgage lienholder has three parties responsible for the loan (which is always better than one). So, they'll probably never remove anyone by choice. The best way to do this is to refinance the loan once the kiddo has improved their credit and/or established better income via subsequent tax returns. They can't say anything if you pay them in-full with a new loan in just the Son or Daughter's name. Of course, you could always try just asking your mortgage lender nicely to remove the co-signer... just listen carefully for the laughter.

Ryan Cave, The "Caveman"
Truth, Honor & Personal Integrity
214-789-9366
www.CaveRealty.com

Comments (4) :: Post A Comment! :: Permanent Link
View more entries tagged with: None

� Dec. 15, 2007 - RE: Mom signed but Dad my be liable too...

Posted by Tom Burris

Interesting....

But this seems to go against what I have been led to believe. For example: If a married person buys a home they need their spouse on the deed. But if that home is an investment property, then the spouse gets NO notification. So I would think the spouse of the co-signer on the kiddee condo would not be liable.

Thanks for the link for more reading.

Permanent Link

� Dec. 21, 2007 - RE: Mom signed but Dad my be liable too...

Posted by Ryan Cave
I'm not a lawyer, but here is my understanding from classes on community property taught by a real estate attorney: In a community property state, investment properties (even those with only one spouse on the deed) ARE subject to being treated as community property. This is unless the property was obtained prior to the marriage and it can be shown that the spouse in NO WAY contributed (i.e. didn't help make mortgage payments, insurance payments, property tax payments, or take care of the kids so that the owner could work to earn and make any of these payments). In other words, their would have to be a fund set-asside (prior to the marriage) to pay any/all expenses. If there are NO ongoing expenses (i.e. land is difficult, but let's say your father gives you an antique watch before you are married) then the spouse has little claim to it. However, if they can claim that they helped support or pay for the item/property in any way, then you better watch out... it's subject to being treated as community property. Think of it this way: Should you be entitled to part (i.e. is it community property) if your spouse went out and bought an "investment property" with all of the cash from your joint savings account (putting just their name on the deed) and then filed for divorce?
Permanent Link

� Dec. 22, 2007 - RE: Mom signed but Dad my be liable too...

Posted by Ryan Cave

An interesting clarification from a lawyer friend of mine. Note: he's not your lawyer or mine (i.e. get your own legal advice).  [my comments are in brackets]:
-----
Just to clarify, community debt and liability for debt are very different. Community debt is pretty much limited to divorce court and bankruptcy court--and each court treats it differently. Liability for a debt is generally in the contracts realm. See, there is no liability for the non-signing spouse of the co-signer as there is no privity of contract. The person who is owed the money cannot collect against anyone who is not a signatory to the contract. period. [Of course, this won't keep banks from at least trying to collect from anyone/everyone they can.]

 Regarding separate property in a divorce procedure, in Texas we confirm separate property. The ownership of the separate property does not change regardless of who paid and didn't pay the maintenance on it. Separate property simply falls outside of the community estate.
 
Here's an illustration: say Jane gets married in 2009, he moves into her lovely home in McKinney that she bought in 2004. Jane quickly decides to become a stay at home housewife while husband uses his income to make all payments, including the mortgage, and all associated bills. Finally, Jane gets bored and dumps the husband after the mortgage is paid off. In divorce court, Husband claims an interest in the house, so what is his interest and how does the court divide it?
 
Answer: husband has no ownership interest. It is Jane's separate property as it was purchased prior to the existence of the community estate.  The income after the marriage was community so he has no claim. Now if say, husband and Jane refinance the home after the marriage, then the answer would change. Also, I think the husband would have a claim if he used his separate property to pay off the mortgage (but before he did that [Ryan Cave, The] Caveman would have him contact a lawyer to make sure there are documents drawn up to transfer an interest). However, it would be an equitable interest and not an ownership interest.
 
A divorce doesn't affect third parties. Such as those who have contracts with the divorcing spouses.
-----
Thanks for the Clarification...
Ryan Cave, The "Caveman"
Permanent Link

� Sep. 18, 2009 - RE: Mom signed but Dad my be liable too...

Posted by Ryan Cave

Great question Don. There is a way around this, but basically you and Mom have to make enough to qualify for the loan on your home with just your two incomes, but counting the debts from all the three of you (Mom, Dad, and yourself). If you and Mom make enough income, then you're all set. If you don't, then you may be out of luck. However, to explore this further, I recommend contacting a great Mortgage Banker (not just a mortgage broker or a big bank) and getting a second opinion. I recommend Scott Hevel (972-834-9798) or Greg Parks (972-897-6348). Both are very experianced and will shoot you straight.

Ryan

Permanent Link

Write a Comment

Your Name:  RealTown Members: Click here to login
Your E-Mail: 
Your Website: 
Subject: 
Your Comment: 
Notifications: 
Privacy: 
Verification: 
To verify that you are a human and not a script, please enter the verification word from the image into the box on the right.
 

All things pertaining to real estate in the areas north of Dallas (i.e. Plano, Frisco, Allen, McKinney, Lucas, Fairview, etc.).

Links

Home
View my profile
Archives
Email Me
Blog Manager


PageEntry 1 of 1
Last Page | Next Page

Clicky Web Analytics