Who has the authority to take my name off the mortgage when the deed is in someone else’s name? – North Carolina

Short Answer

In North Carolina, only the lender (or loan servicer acting for the lender) can remove a borrower’s name from a mortgage loan, and it usually happens only through a refinance, assumption approved by the lender, or full payoff. The person on the deed cannot unilaterally “take a name off” the mortgage because the mortgage is a contract with the lender. A court partition case can sometimes force a sale of property, but partition generally requires an ownership interest in the real estate, not just liability on the loan.

Understanding the Problem

In North Carolina, a common problem arises when one person signs the mortgage note (and becomes personally responsible for the debt), but the deed lists a different person as the sole owner. The key decision point is whether a person who is not on the deed can still force a sale of the property or otherwise get removed from the mortgage obligation. The issue usually turns on who has legal authority over the loan versus who has legal ownership of the real estate, and what options exist when those two do not match.

Apply the Law

North Carolina treats the deed and the mortgage as separate things. The deed controls who owns the real estate. The mortgage loan (the note and deed of trust) controls who owes the lender money and what collateral secures that debt. As a practical matter, the lender controls whether a borrower can be released from the loan. A partition case is filed in North Carolina Superior Court, but partition is generally a remedy for co-owners (cotenants) of the property.

Key Requirements

Loan release requires lender approval: A borrower’s name typically comes off the mortgage only if the lender agrees in writing, usually through a refinance into a new loan, a lender-approved assumption, or payoff of the existing loan.
Partition requires an ownership interest: Partition under North Carolina law is designed for tenants in common or joint tenants who claim an ownership share in the property and want to divide it or sell it.
All interested parties should be joined: In a North Carolina partition case, the petition must join and serve all cotenants, and it may include other parties with interests such as lienholders or mortgage holders.

What the Statutes Say

N.C. Gen. Stat. § 46A-21 (Partition petition; parties) – Allows a cotenant to petition for partition in Superior Court and addresses who must be joined, including cotenants and potentially mortgage or lien holders.
N.C. Gen. Stat. § 46A-52 (Unknown cotenants; title disputes) – Explains how partition can proceed even when ownership shares are disputed, with certain disputes decided later.

Analysis

Apply the Rule to the Facts: Here, the deed appears to be solely in the title holder’s name, while the client is on the mortgage. That usually means the client has personal liability to the lender but may not have an ownership interest that supports a partition petition. If the client is not a tenant in common or joint tenant, the Superior Court partition process under Chapter 46A may not be available to force a sale, even though the mortgage obligation remains. Separately, removing the client’s name from the mortgage generally requires lender action (refinance, assumption, or payoff), not a deed change.

Process & Timing

Who acts: The borrower seeking removal typically starts with the lender/servicer. Where: Through the lender’s loan servicing department (not the Register of Deeds). What: Request written options such as refinance, lender-approved assumption, or payoff; the lender may require an application and underwriting. When: As soon as possible, because late payments can affect credit and collection risk while the name remains on the note.
If ownership is disputed: If there is a good-faith basis to claim an ownership interest despite the deed (for example, a dispute about whether someone should have been placed on title), a civil action in North Carolina Superior Court may be needed to resolve title issues before (or alongside) any partition request. Chapter 46A allows partition to move forward even if some ownership claims are disputed, but the person seeking partition still must be someone “claiming” the property as a cotenant.
If partition is available: A partition petition is filed in Superior Court. The petitioner must join and serve all cotenants, and the petitioner may join other interested parties such as mortgage holders. If the court orders a partition sale, the sale proceeds typically address liens and mortgages in the order required by law, and the remaining proceeds (if any) are distributed among owners based on their interests.

Exceptions & Pitfalls

“Deed change” does not change the loan: Signing or recording a new deed usually does not remove a borrower from the mortgage note. The lender can still pursue the borrower for nonpayment if the borrower signed the note.
Partition is not a tool for non-owners: Chapter 46A partition is aimed at cotenants. Being on the mortgage alone often does not create the ownership status needed to file.
Title disputes can complicate timing: If the title holder disputes any claimed ownership interest, the case can become a title dispute. North Carolina law allows certain disputes to be decided later in the partition process, but the case still requires careful pleading and proper parties.
Missing a necessary party: Partition requires joining and serving all cotenants, and it may be important to include lienholders. Failing to include necessary parties can delay the case or create problems with the final order.

Conclusion

In North Carolina, the lender has the authority to remove a name from a mortgage loan, and that usually happens only through refinance, a lender-approved assumption, or payoff. A deed in someone else’s name does not, by itself, release a borrower from the mortgage note. Partition in Superior Court is generally available only to someone claiming the property as a cotenant, not merely a borrower. The most important next step is to request the lender’s written options for release and requirements as soon as possible.

Talk to a Partition Action Attorney

If you’re dealing with a situation where someone is on the mortgage but not on the deed and a sale or court action may be needed to untangle ownership and liability, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.