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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21745
Experience:  General practice of law with emphasis in family law.
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I was divorced August 15th 2011. Prior to the divorce, My ex

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I was divorced August 15th 2011. Prior to the divorce, My ex and I filed Chapter 13 Bankruptcy. After the divorce was final, My ex converted to a chapter 7 bankruptcy. I was unable to do so because of income to debt ratio. I continued paying the 13 trustee for a year and a half. I remarried and have a new son, and shortly after my son was born I converted to a chapter 7.
My Ex was awarded the House in the divorce. The house has a mortgage and a 2nd mortgage. The 2nd Mortgage was listed in My bankruptcy but not hers. But both the mortgage and 2nd mortgage are in both of our names.
Her attorney has now stated that if I convert to chapter 7 that I owe Half of the 2nd Mortgage amount to my ex, and of course they are furious about the chapter 7 on my part, Since the she didnt add it to her bankruptcy, then she would still be responsible for it if I convert it over to a 7 and cease paying on it. However, I cant find anywhere realistically that I am responsible for paying half of this 2nd Mortgage, and If anything, I have been paying for half of her (our Joint) debts through chapter 13 for over 2 years.

My divorce decree states these facts.
It is Ordered:
(2) Neither plaintiff nor defendant is entitled to spousal support. spousal support if forever banned.
PROPERTY DIVISION:
Any lien, encumbrance, or obligation on any property awarded must be assumed and paid by the party receiving it unless otherwise specified in this judgement.
(c) The plaintiff is awarded the house located at (XXXX), and the plaintiff assumes all liens, encumbrances, or obligations, which includes but is not limited to, the mortgage on stated property. Defendant will relinquish any and all claims he may have to this real property.
(5) LIABILITY FOR JOINT DEBTS.
Plaintiff and defendant will remain equally and jointly liable for the debt of their joint bankruptcy.
(8) BAR OF CLAIMS AGAINST THE PARTIES.
The property division of this Judgment fully satisfies all claims that either party may have against the other except for the obligations and reservations contained in it.

So, those sound conflicting. But the 2nd mortgage is part of the house, and it was taken out at the same time as the original mortgage for a down payment and point reduction, from the same mortgage lender.
And, She filed 7 and left me to pay all the remaining debt in my 13. so I am now converting to 7.
she didnt originally list the 2nd mortgage on her bankruptcy and it is in both of our names, so when I convert to 7 she will then be responsible for that 2nd mortgage in the eyes of the creditor.
Again, My question is, isn't she responsible for that 2nd mortgage anyway? according to the divorce decree?
and If her attorney is insisting I pay half of the 2nd mortgage to her, then what is she basing that on, and is there any real grounds for that.
Should I be worried that after my Bankruptcy converts that she will sue me for that half of the 2nd mortgage? or, better said, Am I responsible for the half?
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.
Hi

Thank you for posting your questions and I will be the Pro who will be providing information for you today

First, I will note that a divorce decree never trumps the terms of a loan or any agreements with any creditors.

Now, with that being said, if she never got the loan on the home in her name only then, unfortunately, you can be held liable for it by the lender. As such the ex can hold you accountable for at least half of the loan.

The Decree is not meaningless, but if she never followed through to get the re fi and her name only on the home, then you are responsible to the lender. The "Grounds" as you state being the fact that you co signed a loan and still remain on that loan.

Of course, it is too late for this, but if you all were not in bankruptcy, I would suggest that your recourse would be to file a Contempt Proceeding to have the court establish a date when the home would be in her name or the terms voided and the home sold for each of you to split the proceeds once the lender was paid.

Unfortunately, that is not an option at this time



I think I have answered your question. Remember, I can only answer and provide true and correct information for what you ask.

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Thank You and good luck with everything
Customer: replied 1 year ago.

Okay, responsibility to the lender is understandable. But, I guess what I am asking is, since I am converting to chapter 7, and the 2nd mortgage is listed in my Chapter 7 bankruptcy, the lender is no longer holding me responsible. But they are going to hold her responsible for it since she did not list this 2nd mortgage on her bankruptcy.


I am prepared to deal with the lender per se.


But I am asking about her personally trying to collect from me half of the debt. Not the lender.

Expert:  Samuel II replied 1 year ago.
Hi

Thank you

According to the Decree she cannot expect you to give cash, if that is what you are asking.

You are responsible to the lender and it is in your Chapter 7 as you state But the Decree says it is hers and therefore, no - you are not bound to her legally



I think I have answered your question. Remember, I can only answer and provide true and correct information for what you ask.

Otherwise, please rate this service below Good to Excellent so that I may get credit for my time and information. Rating will not close the question and it will always be available for follow ups. A Rating will only close a CHAT and then convert it to a QA where you can always access it.

Thank You and good luck with everything
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21745
Experience: General practice of law with emphasis in family law.
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