Full question:
I am purchasing a house and lot. The owner of the property is a divorced lady. She has a quit claim deed from her ex-husband (Grantor) dated 12/20/2004. Her name is listed as the Grantee on the deed. She is now going by her maiden name. I am buying this property _subject to_ the existing mortgage (a refinance 2 years ago). The name on the promissory note is different from, yet, another failed marriage. I want to take title to the property in a trust. So therefore, I will be using your _ILLINOIS WARRANTY DEED TO A TRUST._ My Question: Which of her names do I use as the Grantor to the trust? Question 2 : Should I also use a signature/name affidavit? And if so, I have noticed the affidavit form you offer is for a _Borrower._ Should I change that name to _Grantor_ on the form?
- Category: Real Property
- Subcategory: Deeds
- Date:
- State: Illinois
Answer:
The note isn’t exactly relevant to the transfer if she is to remain liable on it, except in one important way, if she doesn’t pay, they can foreclose on the property if her name is still on the mortgage and she doesn’t pay on time. We cannot advise you on how to fill out a form, but in the case of a sale of a property, it would be more accurate to change the affidavit to grantor.
If there is a mortgage on the property, the contract may violate a due-on-sale clause in the mortgage which the lender may or may not seek to enforce. Most lenders require that the mortgage or deed of trust contain a due on sale clause. This is an acceleration clause in a loan, calling for payment of the entire principal balance in full, triggered by the transfer or sale of a property. Such a clause permits a secured mortgage lender (federal, state or private) to call the entire unpaid loan balance due and payable immediately if the property securing the loan is sold, transferred, traded, gifted or otherwise disposed of without the lender’s prior written consent.
We suggest calling your local deed recorder's office, as name change procedures vary by local office. In some cases, this may be a simple administrative procedure. They may ask you to provide your original marriage certificate, take a copy of it and return the original to you. The copy is certified as being a “true copy” of the original. A certified copy of the marriage certificate or divorce order may be required. This proves to the buyer that you have legally changed your surname and that you are entitled to sign the contract as the owner of the property in that name.
Please see the information at the following links for further discussion:
http://ezinearticles.com/?The-Advantages-of-Buying-With-Owner-Financing&id=1595064
http://www.curtepperson.com/seller.htm
http://www.ehow.com/how_8133_offer-seller-financing.html
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
