If I have been late on second mortgage payments on a house my ex-wife lives in, can they foreclose?

Although the second payments are late they are paid monthly. The first mortgage is paid on time. It has been financially taxing to pay a first and second on a house I don’t live in. Does this second mortgage company have the legal right to threaten foreclosure and in fact actually do it?

Asked on June 2, 2012 under Real Estate Law, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Yes, a second mortgage lender may foreclose if it's mortgage is not paid, even if the first mortgage has been paid. It may not be in it's interest to do so, depending on how much equity is in the home and how large the remaining balance of the first mortgage is: if the home is foreclosed upon, then sold (e.g. at a foreclosure sale or auction), first the costs of the sale are taken out of the proceeds; then the first mortage, which has priority, is paid in its entirety; only if there is  money left after that, would it be applied to the second mortgage. So depending on the circumstances, it may not be worthwhile for the second mortgagee to foreclose, but it has the right to do so if you default on your obligations.

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

With respect to the second mortgage on the home that you are making pay,ments for with respect to your former wife, the second lender can foreclose upon the owner of the property if payments are not made. However, even though you have been late on the payments, the payments have been made. Given such, the chances of the second lender foreclosing due to late, but current payments will not happen.

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