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Thomas McJD
Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6510
Experience:  Real Estate Attorney
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At the time of our divorce, my ex-husband signed a quit-claim

Resolved Question:

At the time of our divorce, my ex-husband signed a quit-claim deed surrendering his rights to our jointly owned property. I am currently in the process of applying for loan modification on my mortgage and HELOC and am required to provide a copy of the quit-claim deed with the supporting documentation. The office of the recorder of deeds in my county has informed me that the quit-claim was never filed by my attorney and my attorney says that he no longer has the records. I do not communicate with my ex, nor do I wish to create an opening for him to re-assert his claim to the home where I reside. I am very concerned and looking for advice as to how to proceed.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Thomas McJD replied 1 year ago.

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

Customer:

Okay.

TMcJD :

Unfortunately, if your attorney no longer has the original deed to record, then you will need to obtain a new original deed from you ex. If the deed was pursuant to the divorce decree, then he has no choice but to sign a new document pursuant to the decree. If he does not, then you can file a motion for indirect contempt (the court would cite him for contempt by not following the court order and deeding the property to you).

TMcJD :

I wish I could tell you there was an easier way to accomplish this without contacting your ex, but there just is not unless the order (divorce decree) can serve as a deed itself -- actually makes the transfer of real property rather than directing your ex to do so via deed; such an order is rare.

Customer:

So, he cannot refuse to sign, as long as his signing is stipulated in the divorce agreement?

TMcJD :

Yes, exactly. His refusal would be a violation of the court order.

Customer:

I don't know that I have any record of that. I only have a copy of the decree, which just states that we're divorced. No conditions are stipulated. If my lawyer no longer has my records, I don't imagine I'll be able to compel him to sign.

TMcJD :

The decree may not state it but it might incorporate a property settlement that does state he will sign the house over to you. If not, then you would need to modify the decree so it specifically makes reference to property settlement (i.e. you get the house and he must execute a deed).

Customer:

So, that might be on file with the family court?

TMcJD :

Thus, if the decree makes reference to the settlement agreement and incorporates it by that reference, then you're still good to go without going back to court (unless you do so to get a citation against him for indirect contempt of court).

TMcJD :

Yes, it would be public record with the court where you obtained the divorce.

TMcJD :

You can get copies from the court clerk.

Customer:

Does a divorce decree by definition make reference to any property settlement? (I'm in PA)

TMcJD :

It usually will because property division is part of a divorce

Customer:

I'm sorry if these seem like obvious questions, but...

TMcJD :

No, that's okay.

Customer:

Does his signing a QG deed count as a distribution of property? I paid him $10K and agreed to assume his debt (a HELOC he took out to capitalized a since-closed business) as part of the settlement as a buyout of his share of equity in exchange for his signing the house over to me.

TMcJD :

It's not really part of the property settlement of the divorce if you were both awarded equal ownership of the home. Rather, it would be a contract between the two of you. If he fails to complete a second deed pursuant to that agreement, it would be a breach of contract, not a violation of the divorce decree. It will all depend on exactly how the home was dealt with as part of the divorce.

Customer:

But my point is, I'm not certain that there is anything on file anywhere that spells out the agreement regarding the disposition of the house if there was no property settlement agreement filed. I'm concerned that there's no proof that he agreed to this that will then compel him to re-sign a QC, if necessary.

Customer:

If my lawyer no longer has any records...

TMcJD :

But if you paid him $10,000, that itself is proof of some agreement. You wouldn't have given him that for no reason. It may make your case much more difficult, but you still have some proof. It is a matter for concern, but you'll have to check the record first to see what's there and what isn't. You'll then know what you might have to prove and what the court record already deals with.

Customer:

So the next step is...

Customer:

contact family court and see what, if anything is on file?

TMcJD :

Yes, that is what I would do first. Find out what's there first.

Customer:

Which, I imagine, I will have to do in person...

TMcJD :

You can call and ask if you can obtain copies by mail or fax. If not, then you'll have to go in person. Usually going in person is required because they do require payment for copies. If they don't have a way of charging you by credit care, by mail, etc., then they'll ask you to do it in person.

Customer:

There is a larger question here, regarding the quality of representation I received. This is not the first instance in which my attorney's actions or lack or follow-through has been cause for concern. But I don't suppose that's germane to this particular chat...

Customer:

And given that the divorce was filed just under four years ago...

TMcJD :

Yes, that is a potential issue, but that's something to address down the road after you've had a chance to see how to tackle the first problem.

Customer:

Sigh.

TMcJD :

Certainly, though, your attorney should have filed the original deed when you gave it to him, and if he didn't, he should still have it somewhere. Yes, I agree - "sigh."

TMcJD :

Sorry you're having to deal with this. It should have been taken care of 4 years ago.

TMcJD :

Please let me know if I can provide additional assistance. If not, I would be grateful if you could please leave me a positive rating. I cannot receive credit for my work without your positive rating and that is the sole means of compensation for JustAnswer experts. Thanks so much!

TMcJD :

And I meant it should have been taken care of 4 years ago by your attorney.

Customer:

Thanks for your help.

TMcJD :

You're welcome. Have a great day!

Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6510
Experience: Real Estate Attorney
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