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Question

My Wife was divorced from her spouse almost 4 years ago, at which time she was awarded the house. Prior to the divorce she signed a typed up contract by her former spouse saying that she would pay him $10,000 to be removed from the loan. As of today he hasn't been removed from the loan, and we are trying to refinance. He submitted a civil claim that we have to go to court on 11/30/09, and he is asking for the $10,000, 6% since the date of signing, and $53 in fees. My question is this contract valid? Does the divorce decree trump the typed up contract(since it came after the original contract and doesn't state anything about the loan). Also, they typed contract wasn't witnessed or notarized... any help would be greatly appreciated.

Submitted: 15 days and 6 hours ago.
Category: Legal
Value: $38
Status: CLOSED
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State/Country relating to Question: Virginia

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Posted by Dimitry Alexander Kaplun 15 days and 6 hours ago.

Info Request

I just want to follow the timeline if I may:

1. First the contract for $10,000 was created.
2. Then the divorce occurred.
3. Then a divorce decree was awarded.
4. Now a suit was filed. Is that correct?

15 days and 6 hours ago.

Reply

Yes thats correct. Also, here is the verbage of the contract...

 

Dear Sir or Ma'am,

Connie B. XXXXX and John B. XXXXXX are in agreement that Connie B. XXXXX will assume the mortgage loan number XXXXXX-X for the property at XXXXXXXXXXXXXXXX, Chesapeake, Va XXXXX. John B. XXXXXX will be paid $10,000 to be removed from the loan. Mr. XXXXXX can be contacted at (XXX) XXX-XXXX and his current address is XXXX XXXXXXXXX XXX Sanford, Florida XXXXX. Please send an application to Connie B. XXXXXX at XXXX XXXXX XXXX Chesapeake, Va XXXXX to contiue the assumption process. Thank you.

Posted by Dimitry Alexander Kaplun 15 days and 6 hours ago.

Answer

By itself, this could be argued that this is a valid post-nuptial agreement, as there is a fair exchange. If the divorce decree did not specifically touch upon responsibilities as they refer to the home, then this contract would be legitimate, regardless of lack of notary.

Sincerely,

XXXXXXX XXXXXXXXX XXXXXX, Esq.

15 days and 5 hours ago.

Reply

Could it be argued that because the contract states that she would pay him to be removed from the current loan. But since he is still on the current loan, she hasn't completed the contract and should not be required to pay him. Also, if she refinances the original loan would be considered mute, and a new loan number would be created. I know this is me reading between the lines, but since he hasn't been removed then the critereria in the contract hasn't been met.

 

Accepted Answer

That is true, and it may be a valid argument. The problem here is that the contract had a time clause and that you are now actively trying to refinance (meaning that you are trying to remove him from the contract). Yes, you can try to argue that he is not entitled to the funds as yet since you have not yet performed the contract, but it is a weak and non-persuasive argument; there was a valid promise that was supposed to have been concluded--and as such he has the right to sue for breach of contract.

I am sorry, I attempted to view it as favorably as possible, but I do not see this as a winning argument.

Sincerely,

XXXXXXX XXXXXXXXX XXXXXX, Esq.

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Expert: Dimitry Alexander Kaplun
Pos. Feedback: 99.0 %
Accepts: 
Answered: 11/5/2009

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Licensed in PA & NJ, specialize in business/contract disputes, immigration, estate creation & admin

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