“I’m married and we own a house.  My wife is on the title but not on the note or the deed of trust.  Is this a problem?”

It is a problem, but only for the bank.  If your mortgage is defective it may mean that the bank cannot foreclose on your home.

When you borrow money to buy a house, we typically call that getting a mortgage.  Around here to get a mortgage you have to sign two important legal documents – the Note and the Deed of Trust.

The Note is simply an agreement setting out how much you borrowed and how you plan to pay it back over time and at what interest rate.

The Deed of Trust is the actual mortgage – you put up the house as collateral (i.e. mortgage the house) to get the loan and you promise to allow the bank to take your house if you do not pay on the Note.

If your wife did not sign the Deed of Trust, then she did not promise to allow the bank to take the house.  Within the industry this is called a defective mortgage caused by a “tenants by the entireties” issue.

Therefore, if the Note – i.e. the monthly mortgage – is not paid the bank cannot foreclose on the home with a defective mortgage.

It takes a trained eye to read and understand all the loan, deed and mortgage documents, and to determine if the bank made a mistake and your mortgage is indeed defective.  Banks do make mistakes, but it is much less often than homeowners would have liked them to (especially mistakes that benefit us!).

For anyone, including myself, to determine if you have a defective mortgage, they will need to see all the documents.

* the above applies if you live in Virginia or Maryland.  For other states, consult a local attorney licensed there.