Deed of Trust

Few things cause my clients as much confusion as getting a copy of the Deed of Trust for their house for me. Please let me explain. I promise not to be any more technical than I have to.

What is a Deed of Trust?

If you borrowed money to buy your house, you signed a Deed of Trust to give the bank or mortgage company the right to take the house back if you didn't pay for it. It is not the same as any of the other documents in the packet that say "deed" on them somewhere. And, we never abbreviate "Deed of Trust" to just "Deed", because it's completely different. At most, sometimes we'll abbreviate it in writing to DOT.

Theory: (this is more technical than you have to know): Texas is not technically a "mortgage" state. Lenders have to go through a few gyrations to give them the right to take the house back if you don't pay back the loan. When you buy the house, you immediately create a trust, and appoint someone the bank names as the trustee for the benefit of the bank. The terms of the trust are spelled out in the Deed of Trust, but essentially it says that if you don't pay back the loan, the trustee can sell the house, pay the bank back, and give you whatever's left over.

Why do you need the Deed of Trust?

In a divorce, the person who's going to keep the house also takes on the responsibility to pay back the mortgage. I'll probably prepare a Special Warranty Deed, and it will spell out the loan that the person keeping the house has to pay back. The terms of the loan that I need to know are spelled out in the Deed of Trust, including:

The date the note was signed

The original amount of the (current) note

The name of the original lender

The name of the trustee

The mailing address of the trustee

The legal property description of the home (e.g., Lot 6 in Block A of Smurfdale Acres ...)

What if I've refinanced, or if the mortgage has been sold to another lender?

Two separate questions. First, if the house has been refinanced, I need information from the most recent loan. The previous Deed of Trust was voided and replaced in the refinance. However, sometimes in a refinance the new Deed of Trust isn't called a Deed of Trust (just to make things more confusing). If you look through your refinance papers and don't see a document titled "Deed of Trust", look for one titled "... Security Agreement ...", and if you don't see either one, look online, or make an appointment to come see me with the whole packet and I'll find what I need.

If you now send your payments to someone else, it may be because the mortgage company was sold to someone else, or maybe because they're paying another company to "service" the loans (take payments, send statements, answer phone calls, keep track of escrow money). None of this matters to me. I need to identify the "note" (loan document), which means identifying the lender named in the loan documents, regardless of whether that information has since changed.

How do I find/recognize the Deed of Trust?

Look through the papers the title company gave you at closing. Look for a document with Deed of Trust as the title (that exact phrase, not other words or phrases that contain the word "deed"). If you've refinanced, and you don't see a Deed of Trust, look for "... Security Agreement ..." in the title of the document.

Sometimes there's a large blank space at the top of the first page of the document that confuses people. That's to give room for the county clerk to stamp the original at the time it's filed.

Click here to see a sample Deed of Trust. Note that this is 19 pages long, but the information I need is only on pages 1, 2, and 3. You'll almost always be safe sending me the first 3 pages of your Deed of Trust, provided you make sure the legal property description hasn't been moved to an exhibit at the back of the document.

I just don't have a copy of the Deed of Trust. What do I do?

If I've asked you for a copy of the Deed of Trust (or equivalent document in a refinance), and you just don't have it, you've got a few options.

Online search. As I write this, one can usually view real estate documents filed with the county clerks of Dallas and Collin Counties. Denton County isn't online, yet. If these links below don't work, go to a search engine such as Google, and search for "______________ County Clerk" with the name of the county where the house is in the blank. Click here for Dallas County. Click here for Collin County.

From the title company. Call the title company that closed your last financing and tell them you didn't get a copy of the Deed of Trust, or that it didn't have the Exhibit with the legal property description, and ask if they'll make a copy for you and mail it to you.

From the lender. Call the lender and explain the situation to them (you're getting divorced and your lawyer needs a copy of the Deed of Trust). They may make you a copy and mail it to you.

In person. Go to the county clerk's office in the county where the house is (not the District Clerk (court stuff), but the County Clerk (land stuff)). They may have branch offices, but call first and make sure you can do this at a branch office. There will be someone there to help you find the records. Tell them you need a copy of the Deed of Trust or the Security Agreement from the most recent financing of the property at _________. They'll probably find it for you and print it for you, and charge you 50¢ or $1 a page. You probably don't need any more than the first 3 pages, unless the legal property description is an Exhibit.

Pay me to do it. I don't want to do it, and you don't want to pay me to do it, but if you're completely frustrated, we can do it this way. I'll charge you $97 to look for it the next time I'm at that courthouse. Warning: I go to the courthouses in Dallas, Collin, and Denton counties once a month or less frequently, and almost never to other counties.

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