What happens to the second mortgage on jointly held property, if only one of the co-owners took it out?

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What happens to the second mortgage on jointly held property, if only one of the co-owners took it out?

My brother and I own a house as joint tenants. My brother’s section in the deed indicates that he is a married man and that the property is his sole and separate property. My brother and his wife took out a second mortgage on the house about 2 years ago without my consent. My brother divorced his wife a few months ago. He recently passed away. What happens to the second mortgage? Is the second mortgage still tied to the property? Is his former wife solely responsible for the second loan?

Asked on February 5, 2011 under Real Estate Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

This is not the best of situations here and you should consult with an attorney in your area on how to proceed because you will probably have to consider bringing an action against your brother's estate. The second mortgage is the responsibility of your ex sister in law and your brother's estate.  But that does not really help you any as it is tied to property that is your as well.  If she and his estate do not pay the second mortgage then they can foreclose on the property.  It is collateral for the loan.  Your first mortgage has priority in the scheme of things. But you will need to possibly sue her and his estate to pay it off.  Good luck to you. 


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