First in time, first in place. That means that whichever lien is recorded first, has first lien preference. Unless a lienholder consents otherwise. If you simply refinanced the first mortgage and no contact was made with the second mortgage holder, the second mortgage would have a priority lien, which would violate one of the sections of the new first mortgage.
This does not mean, however, that you MUST incorporate a second mortgage balance into your refinanced loan. What is DOES mean is that you will need to get a subordination agreement from the lender holder your second mortgage and have that recorded. The subordination agreement simply states that the second mortgage holder agrees to stay in second place. Sometimes there is a fee from that lender to obtain one. But, if the first mortgage balance is increasing only by the closing costs AND you are improving your ability to pay by lowering the rate and payment on the first mortgage, then most lenders will issue a subordination.
If you are looking at a 'cash out' refinance, though, it is very unlikely that the holder of the HELOC will agree to subordinate their lien.
Answer Submitted on Fri, Dec 26 2008
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