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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33879
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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ToCustomer Is there any case law or authority that I

Resolved Question:

ToCustomer
Is there any case law or authority that I can use to prove that my deceased ex husband's estate is not entitled to 50% of the rents that I manage to obtain from a community property asset? He stopped paying the debt service several years ago and did not participate in maintaining the property.
Facts:
The state court Judgment said this property (in another state) is community property so sell it - 50 - 50 to each party. No mention of rents in the Judgment.
The Sale did not take place then but is still pending. I rented the property as much as possible to pay the debt servcice on the property after my husband left the family and abandoned the debt service - taxes, mortgage, insurance, maintenance etc. The rental funds went back into the property.
Years latter in BK court--My ex husband's attorneys want half of the rents that I collected but my husband had abandoned all payments on the property for years. Why get rents on what he did not support????? I spent 7 days a week, maintaing and renting the property in order to pay the debt service on the property that my husband had voluntarily abandoned.
Why would he get half of the rents that went back into the property especially because he quit paying the debt service on the property in order to force me into foreclosure. I was advised to file Chapter 11 because the proposed sale would have created a large deficit. A set aside was created in the proposed sale that left a deficit - therefore sale was stopped.
After conversion to 7 - the trustee cancelled lucrative rents without notice to the Court and only created debt.

I NEED CASE LAW OR SOME PROOF THAT 50 -50 DOES NOT INCLUDE RENTS WHEN THE OTHER PARTY DID NOT CONTRIBUTE TO SUPPORT THE PROPERTY. CAN YOU HELP?
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 2 years ago.
Was the property divided between you at divorce?

Was this before your bankruptcy was filed?
Customer: replied 2 years ago.

The property was bought by me with the help of my parents before my marraige and before BK. Five years after I was married my then husband put his name on my deed to this property when he applied for a consturciton loan in his name alone to build the main house on my ocean front land. I did not know this at the time but he stated to me at the closing of the loan that it was a requirerment of the Bank that his name be on my deed. Years latter I find out that my then husband lied. It was NOTa requirement of the Bank that my husband's name be on my deed. I tracked down the Banker VP in charge of loans who wrote a declaration in 2010 stating that this was not required by the Bank - only requirmewnt was that my property would be used as collateral for the loan. The loan was applied for by my husband and in his name alone. He latter had me sign a refinance - I did not know what it meant. I wound up paying the debt service on the property after my husband left the family and his financial obligations.

I knew nothing at the time. I worte an agreement at the closing of this loan when I was handed a new deed with my husband's name on my deed.

The agreementstated that my husband promised never to sell the property and it would be left in the fmaily for our son. The bank representative, my husband and I signed the docuement. 10 years latter my husband left home and tried to sell the property to my billionaire tenant at the same property in our divorce. The Judge ordered the property sold. The state Judge was removed from the bench a few years latter on another case. I had no attorney in my divorce. I appealed the divorce and lost.

 

Bankruptcy began when my husband cut off all support and my billionaire tenant at the same property cut off the rent - together both trying to force foreclosue. I was advised to file Chapter 11 when both my husband and my tenant created some millions in a set aside in their proposed offer to buy the property leaving a deficit of 1.4 million if the property had been sold at that time. I've tired to get out of BK for years - but I was held hostage until they could use up my estate and stop my 2120 perjury & fraud action against my husband in another court. I asked to set aside the Judgement at the advise of the appellate attorney. I have presented enough evidence from declarations etc. to prove perjury & fruad in the divorce action but the trustee is interested in his commission from a lucrative sale of the property and sides with my ex husband's probate estate. The trustee is also still intent on selling my calif. residence to make me homeless. There is anger that I file opposition and the retaliation is vicious.

 

The trustee owns the ocean front property since I was converted to Chapter 7 and has agreed to give half of the property's rents to my deceased ex husband's attorneys who has not been paid his attorneys. The trustee and all involved work to create debt for my estate and to get everyone paid from my estate and to sell this property to the billionaire.

 

The trustee & my deceased ex husband's attorneys want me to pay his estate for half of the rents on this property that I received over the years but state they will not pay for half of the expenses - mortgage, taxes, Insurance, maintenance etc. The rents went back into the property. I have a declaration from the attorney at the closing of my husband's loan wherein my husband caused to have his name put on my deed. The declaration states that my husband promised to pay all expenses on my property if I left his name on my deed. It was not in writing but the bank representative was present during the long confusing discussion when I was handed a new deed to my land with my husband's name on my deed.

I have the declaration from the Bank's representative (who is an uninterested party) but was present when I was presented with a new deed to my land. I was shocked and worte an agreement - you cannot sell -save property for our son. I only agreeed to leave my husband's name on my deed when he promised to pay all expenses on the property and save the property for our son.

The trustee has taken my solvent case and created an insolvent case on all of the outstanding issues including the rents from this property. I worked 17 hour days to manage, rent and clean up the property for years.

I am trying to find a legal reason for the court not to give back rents from this property (that went back into the property) to my husband's probate estate.

Expert:  socrateaser replied 2 years ago.
There is no case law supporting your direct question. There is only the equitable defense of "clean hands."

"Of rents thus received, the jurisdiction of equity to direct an account, as an incident to a partition, is unquestionable. From these rents the defendant is entitled to deduct the amount of the taxes paid, and of the expenses incurred in making necessary and proper repairs and additions, for the preservation and security of the buildings, during the period for which the rents were collected. He is also entitled to reasonable allowances, to be deducted from the rents, for the use of his individual property, when such use was required in order to let the premises themselves. It is not probable that he could have let the theater rooms, from time to time, as different theatrical companies required them, without, at the same time, letting the carpets, lamps, and scenery; and as these constituted his individual property, a reasonable allowance for them should be deducted from the rents received. But he is not entitled to allowances for the use of any individual property in connection with the premises not thus required, nor to any allowances for his personal services in taking charge of the building, renting the same, and collecting the rents." Goodenow v. Ewer, 16 Cal. 461 (Cal. 1860) [yes, 1860]

 

The family court order to sell the property and distribute the proceeds between spouses was the equivalent of a partition order. Based upon the above-quoted case-law precedent, your ex has a valid claim in equity against the rent received from the property lease(s) after deducting your actual expenses.

 

However, in order to obtain the above result, (1) the plaintiff must plead for an equitable accounting, rather than for breach of contract, a common count (e.g., money had an received), or some other "at law" action (Pico v. Columbet, 12 Cal. 414 (Cal. 1859)); and (2) the plaintiff must come to court with "clean hands." Dickson, Carlson & Campillo v. Pole, 83 Cal. App. 4th 436 (Cal. App. 2d Dist. 2000) ("Unclean hands...requires inequitable conduct by the plaintiff in connection with the matter in controversy and provides a complete defense to the plaintiff's action.").

 

So, if you can show that ex convinced the tenant to stop paying as a means of forcing you out of the property, then that could operate as a clean hands defense to owing him a net portion of the rent.

 

However, the bankruptcy court owns your 50% tenancy in common interest in the property, and one half of the net rents after expenses, whatever that net may be. So, even if you succeed against your ex, you're not out of the woods re the bankruptcy trustee.

 

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


 

Customer: replied 2 years ago.

1. The rents went back into the property. I rented the property to many high end tenants not just the billionaire who wants the property. he rented every year for 5 years for a large protion of the summers & wanted to buy. I did not want to sell and now this mess for years in BK.

2. Should I quote that case? I don't understand all of it. It seems the person taking care of the property, obtaining the rentals and paying ALL OF THE DEBT SERVICE on the property should be compensated for their work. That mentioned portion you mentioned above might not be useful. I don't know.

3. What about the fact that I spent my years working night and day to support the property with rents & paid all of the debt service on the property- ---Does a chapter 11 debtor in possession get an allowance for her work? I picked up all of my ex husband's debts and obligations and paid them from my work.

 

I don't understand your last few paragraphs beginning with; "however in order to obtain---

Am I the plantiff? Does it mean that I should be provided with an equitable accounting before they get half the net rents? The Court allowed subponeas for tax returns but they were never turned over to me or the court & the order was not enforced. I don't understand it enough to decide if I should use the case law or what words to use. What should I use? the Breach of contract mentioned in the above would be my husband breaching his signed agreement - his promise - never to sell the property & leave if for our son. I don't think that is part of half the rents but....I don't know.

 

Can you give me any words to use in a sentence re unclean hands for denying me a complete accounting thus no rents are due to his estate?

Expert:  socrateaser replied 2 years ago.
Do you know how to look up the case law, so that you can review it yourself?
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33879
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.

No and I have to file by 3:30 pm today. No time. Just need some words to use in my filing with any case or authority that would apply.

Would like to know how to look up after today. No time now.

Customer: replied 2 years ago.
Do you have any words for me to add to my filing today. I don't understand the case. Need ASAP
Expert:  socrateaser replied 2 years ago.
I can't give you verbiage re how to defend something, without reading the other party's pleading. I wouldn't know how to phrase anything. And, you need it by 3:30PM today?

Okay, you could say something like:

  • In order for the court to award a proportion of the rent, ______ [plaintiff/defendant/petitioner/respondent/creditor/etc.] must have clean hands in the transaction between the parties. Dickson, Carlson & Campillo v. Pole, 83 Cal. App. 4th 436 (Cal. App. 2d Dist. 2000).In this circumstance, _____ [plaintiff/defendant/petitioner/respondent/creditor/etc.] has ______ [describe what the other party has done to injure your interests in the property]. Therefore, the court should deny _____ [plaintiff/defendant/petitioner/respondent/creditor/etc.] request.

Hope this helps.

 

 


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


 

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33879
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and 2 other Bankruptcy Law Specialists are ready to help you

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