In a divorce proceeding, If there is a foreclosure looming does the court have a fiduciary duty to request joinder of the mortgagee?
Hello thanks for submitting this question. If the parties to a divorce proceeding are also in (or about to be in) foreclosure the mortgagee is NOT a necessary party in that proceeding, and it would be improper to attempt to join it. There is nothing the court can do regarding the mortgagee. I can only direct the parties as to what they are to do regarding the mortgage. Also, a court does not have a fiduciary relationship with the parties in the litigation.
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So if the home in question is part of the marital estate, how can the court equitably divide the estate without knowing the equity of the situation?Especially if the foreclosure is occurring in the same courthouse. Both cases may end at different times and one judge may not know the true outcome of the case. Doesn't judicial economy , "double jeopardy" per say etc call for joinder? I may have used the wrong word "fiduciary" as I am sure the court can order joinder on its own accord if the situation calls for it, The court has some duty in equity situations to be sure that the rights of each individual are accounted for in each situation.
Your general statements are correct; however, the legal issues in a foreclosure are totally different that those in a divorce. It is up to the parties to advise the respective courts as to the status of the other case. The judges may make rulings based on the status of the cases if necessary to reach a just decision in either one. I can tell you that in close to 50 years of handling foreclosure cases, I've never seen or heard of one being joined with a divorce proceedings, and there are divorces pending in a large percentage of them. A party may move for joinder, but I'm betting that the motion will be denied.
I have seen a few others in NH courts as well
Hello again and thanks for the additional information. As those opinions point out, this is not a tactic that can be used to prevent the foreclosure from being filed or from proceeding to judgment without the account being kept current. The divorce court can't enjoin filing if the account is in default, and if it isn't the foreclosure threat goes away. I can't see anything to be gained by either party via joinder, but if a party can show some compelling legal or equitable basis for it, the courts certainly have the power to do it. Getting back to the original question, the answer is that the Court has no duty or obligation to join the two cases. It would have to be petitioned for by a party, with good cause shown.
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