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Legalease
Legalease, Lawyer
Category: Real Estate Law
Satisfied Customers: 16288
Experience:  13 years experience in RE Law, including LL/Tenant, contractor disputes, comm'l prop. issues
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I inherited in ca during my marriage a sole property from a

Customer Question

I inherited in ca during my marriage a sole property from a trust and also have a community Prop. domestic violence seperation in May with court orders for us to sell with real estate agent and finds to deposit to my lawyers trust account. bought joint home $215k and I was gifted partial inheritance with notarized letter in HUD. docs that I put $37k+ down from that gift. we owe $186 are 3 months past due $4600, pending divorce. husband arrested 2wks ago. with a bail $6000 told bondsman he would sell property and pay bail. got out $0 has paid $0. bondsman affiliated with investment company. I entertained sale offer but they ignore my separate interest and the built equity. valued $270k and despite husband malicious vandalism would probably still sell approx $250k. i refused offer 2nd time, just right now. with my refusal they will now put a $60k lein on my joint home? i never approved the property to be used in the bail. can they put a $60k lein on a $6500 bail?
Submitted: 4 months ago.
Category: Real Estate Law
Customer: replied 4 months ago.
they also threaten to lein my sole inherited property. can they touch that? if a lein is made falsely, how can i duspute it?
Expert:  Legalease replied 4 months ago.

Hello there --

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First, in a community property state like CA, any real estate that is purchased with marital funds is subject to being liened and eventually foreclosed upon (f the lien remains unpaid and the creditor feels that the only way to get their money is to force a foreclosure sale of the property that the lien was placed on). Marital property in CA and all other states is any money that either of you get or generate from your employment (regular paychecks, bonuses, any and all IRA's or 401ks that are contributed to using money generated from employment and any pension plans from an employer are all considered marital property. Social Security benefits and Veterans Benefits are also considered to be marital property in community property states like CA) -- so, if there is any real estate purchased during the marriage using such funds, then that real estate is also community property EVEN IF that property is held in only one name (both names do not have to be on the title and/or the mortgage to the real estate for that real estate to be considered community property and owned by both spouses during the marriage -- the family court / divorce court will pull any such properties into the marital asset pool and split that real estate between the two divorcing spouses as if the property had both spouses names on the title and/or the mortgage for the property). Regarding the 37K that you used from your own inheritance to purchase the marital home, by using those separate funds to purchase a marital property in the manner that you did here, the inheritance funds became co mingled with the marital assets and thus are no longer considered your sole and separate property in a community property state. Once you co-mingle your sole and separate property (your inheritance money) with the money generated during the marriage ( employment income that has paid for the mortgage and maintenance of the marital property since you purchased it), that money becomes part of the marital estate unless you and your spouse entered into a written agreement at the time you put up the 37K (before the marital home purchase) to consider that 37K your sole and separate property and to reimburse you first (off the top of any sale proceeds) then that money stays as a marital asset and any equity built up in the marital home that remains for distribution to the two of you after the mortgage and all other costs of the sale of the property are paid will be split equally between the two of you as a distribution of a marital asset at the time of a divorce.

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Turning to your other questions --

(A) In a community property state such as CA, each spouse is legally responsible for any debts incurred by the other spouse if those debts are for medical treatment and/or anything else that a court would call "necessaries" of the marriage ("necessaries" have been found to be things such as food, shelter, transportation, clothing, items for minor children, and any legal fees incurred by the individual -- and by the same token, such "necessaries" have been found to include the cost of a bail bond to get the other spouse out of jail and released on bond until a trial date happens). In this situation, where your husband was arrested on a domestic violence charge (a crime committed against YOU) - you may be able to argue against enforcement of the lien because such a bail bond for this particular crime is NOT a necessary of the marital relationship) -- generally speaking the bail bondsman or any other creditor can place a lien for payment on the marital property principal residence even if that property is held in the name of the other spouse alone who did not incur the debt in the first place . Even if you do not have the correct amount of equity in the property to cover such a debt, if the lien is placed on the property it can still cause you problems with your lender and any potential buyers of the property because they will want the lien removed from the chain of title whether the bail bondsman or other creditor gets paid or not (placing a lien and then NOT foreclosing on that lien is basically a form of legal harrassment to get you to pay the amount due to the bail bondsman so they will release the lien and they will not have to go through the trouble of a foreclosure court proceeding to enforce the lien against the property).

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(B) Regarding the sole inherited property -- if that is in your name alone and you can prove that the property was an inheritance, then the bail bondsman and any of your husband's other creditors who may have provided him with the "necessaries" of the marriage or of being married CANNOT place a lien on your sole inherited property because any property or money or other assets that are obtained by either spouse during the course of the marriage from an inheritance are NOT considered to be marital property or assets unless you co-mingles the property or other assets or money with the marital funds or property. In the event that the bail bondsman does place a lien on this property and you can clearly show that is was an inheritance, then you would petition your local probate and family court with a Motion to Remove Lien From Real Estate -- you can simply write up the motion using a form motion that you should be able to obtain at the clerk's office of the probate and family court and in that motion, you state that the property is your sole property through inheritance and not subject to the community property laws regarding marital property in CA -- therefore, you request that the court issue an order against the bail bondsman ordering him to remove the lien and rendering the lien to be invalid under CA law.

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(C) Finally, regarding the lien amount that the bondsman can place against the marital property -- the actual debt that the bail bondsman is guaranteeing to the court to secure your husband's release from jail is 60K. You see, when a court permits a bail to be paid by a BOND from a bail bondsman the amount of the bond itself is only ten percent of the actual bail amount set by the judge. The court set a bail of 60K to be paid in 60K CASH or by a 6K BOND issued by a bail bondsman in favor of the court -- and in order for the bondsman to pay that BOND to the court, the bondsman must collect ten percent of the bail amount from the person seeking the bond (your husband) -- But what is really happening is that the 6K bond on file with the court becomes a 60K debt in the event that you husband fails to appear for his court dates in these matters. THe bail bondsman is then on the hook to the court to pay the full 60K and the bail bondsman will then turn around and foreclose on the marital property in order to collect the 60K that the court charged the bondsman after your husband failed to appear for court. In the event that your husband appears for all of his court dates then the court will give the 6K bond bAck to the bail bondsman and your husband is on the hook for the fees charged to issue the bond and file it with the court in the first place. Generally speaking, most bail bondsmen and companies will charge the defendant (your husband) the full ten percent and the final bond fee will BE that 6K amount. This is the reasoning why the bail bondsman is seeking a full 60K lien -- so that they can foreclose against the marital property and get as much money as possible to make up for 60 K if paid out by the bondsman or company to the court.

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I hope that all of this helps. Please let me know if you have any further questions on this matter. If not, can you please press a positive rating above so that I will be paid for my time assisting you today? I am paid NOTHING unless you press the middle star or the fourth or fifth star above in the star ratings section. Pressing a positive rating above will not cost you any additional money (it is just a trigger used to pay me for my time spent assisting you today) and doing so will insure that your question will remain open for follow up questions for the next 3 months. THANK YOU VERY MUCH !!!!! MARY

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