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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86553
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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For Ely Hello Ely: My wife, the petitioner in our 4yr.

Resolved Question:

For Ely

Hello Ely: My wife, the petitioner in our 4yr. old divorce proceeding, has been certified by a clinical psychologist as having dementia, pursuant to receiving disability benefits from SSI. Recently, she has apparently had a stroke and moved in with her brother. She had been occupying the marital home via a verbal agreement that she would pay the mortgage payments and those payments would be considered rent. She has not paid the mortgage payments for two months and according to her brother she will not be paying the 1st of November payment which will put the mortgage 90 days in arrears. In my opinion, she has forfeited any exclusivity to the property. Her brother has had the locks changed to prevent me from entering. The home houses all of the marital property both jointly and separately owned.

In mid-July I filed a motion to get access to the home; to inspect it and inventory the property. This was before she stopped making mortgage payments. To date I have received no ruling from the court regarding this motion. I need to request a hearing on this motion ASAP.

My question is: In what manner would I put my request to the Court? I need to know what form or format it should take. Should I file another motion to request a hearing on my original motion? Should I write a letter to the judge requesting the hearing or a ruling? (by the way wife’s attorney did not file a response to my original motion, so I assume he will not oppose it.) This needs to be ruled upon and a court order issued like yesterday as this mortgage issue is looming.

Additionally, I need to have continuing access to the home to do some repairs, which according to the real estate agent whom her brother called to evaluate the property, would enhance the possibility of selling it. Since she stopped paying the payments and living there, I feel I should be as entitled to access as she is as I am joint owner.

I am wondering if the issue in the immediately foregoing paragraph can be raised at the hearing on my original motion. I need to get a key to the home and access as soon as possible. In your opinion, would this latter issue require another motion, especially when time is so critical?

Thank You,
Bill
Submitted: 9 months ago.
Category: Legal
Expert:  Ely replied 9 months ago.
Hello friend and thank you for requesting me.

Please tell me - when you filed the ruling, did you set it for a hearing, or did you simply file it and then waited to hear from the Court?
Customer: replied 9 months ago.

Ely:


 


I filed a motion and was not aware that I had the option to set it for a hearing. I simply filed it with the clerk and gave a copy to the opposing attorney. He did call me and apologized for not having responded to my requests to confer on this issue. An attempt to confer and resolve prior to involving the court is required and I made several attempts.


 


Yes, I simply filed it and have been waiting for the Court to advise me of a ruling or a hearing date. I spoke with the Judge's law clerk and she said she did not find anything on it.


 


Hope that answers what you need to know.

Expert:  Ely replied 9 months ago.
Thank you for your reply, W.

This is a common mistake. When one files a motion, the court is not going to simply automatically consider it. One has to set it for a hearing for it to be considered. A motion filed simply stays in the court's file all the time, waiting to be set for hearing.

A such, someone in your situation may wish to call the court, ask the clerk to set it for a hearing, get a date/time, and notify the other party. Hence, the hold up - nothing has been done to actually ask the Court to consider the motion.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

Sorry I did not get back to you in a timely manner. The page I was on has been saying for hours that we were "waiting for expert".


 


When you suggest calling the court and speaking to the clerk, do you mean the county superior court clerk or the judge's law clerk? I have asked the county clerk's office and they advised they did not set the hearings although I can never be sure that the knuckel-heads who work there know what they are doing.

Expert:  Ely replied 9 months ago.
There is not need to apologize. Strange that the page would say that; I will let customer service know so they could look into this.

When you suggest calling the court and speaking to the clerk, do you mean the county superior court clerk or the judge's law clerk? I have asked the county clerk's office and they advised they did not set the hearings although I can never be sure that the knuckel-heads who work there know what they are doing.

Judge's clerk. One calls the court itself where the matter is pending. Some courts have clerks do this, and some have coordinators do this. It is best to ask for the coordinator first. Often, the clerk and the coordinator is the same person, anyhow.

And sometimes, no one knows what the other is doing.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86553
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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