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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 36753
Experience:  I provide family and divorce law advice to my clients in my firm.
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I am filing an order to show cause against my ex-husband.

Resolved Question:

I am filing an order to show cause against my ex-husband. In our divorce decree we both waived alimony. However, the mortgage loan, which was only in his name, was listed as a debt, and he agreed to pay it. He has not paid it, and now I'm being evicted. The order to show cause gives me an option to hold him in contempt, unless he does what I say. Here is the language I am using. Does this sound appropriate? What do you think about the amount I am asking for? I realize that whatever I ask for, will most likely be reduced by negotiations, does it hurt me that I am asking for so much, or should I ask for more? Does it seem unreasonable? Here is the exactly phrasing I am using:
Within the next seven days, contact the mortgage company, stop foreclosure
proceedings by paying any unpaid mortgage payments and fees associated
with his failure to pay the debt, or anyone who currently holds the Mortgage
as their trustee.
If this is not possible, then pay me for my loss of my portion of the property
due to auctioning off of the property by the mortgage company. The
monthly debt to the mortgage payment included home owners insurance and
property taxes and totaled just over $1,400.00 a month. There were over 25
years left on the loan when he defaulted. Those 25 years times 12 months x
$1,400 equals $420,000.00. In addition there is the lost equity that would
have accrued in the house over that time. The last time the house was
appraised it was for $220,000.00. Over a period of the next 25 years, it would
not be unreasonable to expect the house to double in value to at least
$440,000.00, to which I was entitled to half ($220,000.00). This totaled with
the lost house payments is $640,000.00 This again doesn't take into account
my moving costs, the mental pain & suffering myself and my children have
felt from being evicted from our beloved home and neighborhood, and the
time and expenses I have paid to find a new place and file this order.
However, in an effort to be reasonable, he must pay me $100,000.00 or be
held in contempt."
Submitted: 3 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question.

First of all you cannot request mental pain and suffering. Those losses are something the courts would not provide you with. Second, as you cannot legitimately guess what the equity would be, you cannot sue for lost profits simply because they are too indefinite and too far away in the future. Third, you cannot demand future fees for injuries you did not sustain yet--while you can absolutely demand that he cover your fees for payment and moving expenses, if any, as well as legal fees and punitive damages, you cannot demand $420,000 as that is completely unenforceable. Notice that it was his debt to pay not yours, meaning that if there is anyone that would have a case against him, it would be the lender.

That does not mean you cannot try it, but I suspect that if a judge sees those numbers, he will deem the petition to be frivolous and throw it out (i.e., dismiss it).

Good luck.

Edited by Dimitry Alexander Kaplun on 12/1/2010 at 5:26 AM EST
Customer: replied 3 years ago.
OK, but I'm not asking for $420,000.00, I'm asking for $100,000.00. What would be considered a nonfrivolous amount to ask for?
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

A good amount to ask would be for your possible expenses, plus legal fees, expected court costs, and misc fees based on his breach and then multiplied by about 3 (and then revised upward, for example if it come up to be $14,500, revise it towards $15,000)--that is a legitimate number that you can then utilize and explain to the judge as to how you came up with it.

Good luck.

Edited by Dimitry Alexander Kaplun on 12/1/2010 at 5:42 AM EST
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 36753
Experience: I provide family and divorce law advice to my clients in my firm.
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