Can I nullify a mortgage contract due to the title company’s lack of due diligence and the mortgage company not checking the proper title to my house?

Get Legal Help Today

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

Can I nullify a mortgage contract due to the title company’s lack of due diligence and the mortgage company not checking the proper title to my house?

Original deed named husband and wife. Husband died 9 years ago. Refinanced the house within 6 months 8 years ago. The mortgage company closed the loan with my name only (single person). Fast forward to now. During another refinance I was told that the house should be in probate due to the titling of the property. There was a mistake years ago. I was advised to get a probate lawyer so the mortgage company can refinance it for me. Do I have any recourse?

Asked on August 5, 2011 Kansas


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Title issues and loan issues concerning the sale or refinancing of real property are entirely two different matters. When one buys real property he or she typically buys title insurance regardless if whether or not a loan is needed to purchase the property. Title insurance protects the new owner's rights and title to the property acquired.

When one buys property where a loan is needed (or refinances the property's loan), the lender also requires title insurance to safeguard the loan from any senior liens of record as well. The new owner of the property and the lender rely upon the preliminary report issues by title before close and the issued title insurance policy in buying the property, agreeing to the loan and making the loan.

You cannot cancel your existing loan due to the title company's lack of due diligence concerning how legal title should be on the real property for the secured loan where your former husband's name should have been removed from title before the loan was taken.

What has happened is that in order to refinance, the new lender is making a condition of the loan that title to the property needs to reflect that you are its sole owner since your husband who is still on title passed away nine years ago.

If legal title to the property is in joint tenancy or as community property with the right of survivorship between you and your deceased husband, all you need to do is sign an affidavit of surviving joint tenant or spouse, attach a certified copy of your husband's death certificate to the affidavit, and record on the property.

Title to the property would be in you name alone at this point.

Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption