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Asad Rahman
Asad Rahman, Lawyer
Category: CA Real Estate
Satisfied Customers: 2134
Experience:  Practicing Attorney with 10 years experience
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My boyfriend and I purchased a home in 2008 he put 120,000

Customer Question

My boyfriend and I purchased a home in 2008 he put 120,000 down. We were placed on title as joint tenants. We were married seven months later. We separated three years later and I moved out of the home. 10 months following that he stop paying the mortgage and continued to not pay the mortgage for another 10 to 12 months and the house went into the foreclosure process. We were lucky enough to be able to find a buyer for the house and received $152,000 in equity. However that amount of equity that we received should've been $30,000 higher (182,000) because the $30,000 was the amount of the total mortgage that he did not pay during that 10 to 12 months. I was never informed and had no idea that he was not making the mortgage payments until the house was already in the foreclosure process. Isn't this breech of contract on his part?The courts and his attorney are insisting that because he can prove it, he gets his $120,000 down payment back. I can't find any caselaw nor can my attorney that proves otherwise so I'm assuming that yes out of the equity in the home he would get back the first $120,000. My question is about the remainder after we carve out the $120,000 what's left of the equity technically I feel should be split 50-50 in addition to that the additional $30,000 that was taken from the equity (added to the balance of the loan) to pay back the lender for his nonpayment of mortgage payments. I feel I should be reimbursed half of that. It doesn't seem right that he was banking that mortgage payment every month for 10 to 12 months and I would get penalized for that as such what I would like is to get 50% of the equity which includes the amount of equity that I should've got because of his non-mortgage payments. His attorney is claiming that the entire time I did not live in the house I should have been paying him half of the mortgage because we hold title as joint tenants and because of that I am not entitled to half of the equity because the amount that I should've paid him for half of the mortgage is pretty much equal to what my half of the equity would've been. Is this true? Can you please provide me any information or similar cases that might be helpful in my situation.
Sale of home 635,000
Balance of loan 414,000
= $221,000
Amt added to balance for non mortgage payments. 30,000
= $191,000
Less realtor and misc fees 39,000
Proceeds $152,000
If we deduct his 120,000 down payment bal is 32,000 which should be split 50/50 (16,000 each)
But this amount should have been $30,000 higher because I feel he banked this amount the whole time he didn't pay his mortgage and was padding his bank account as a result of it. Not to mention he received all the benefits of living in the home. As such I think that I'm entitled or I should at least get half of that amount which is $15,000. For a total of 31,000 as my share. The judge wants facts in order to consider my request. She is very favorable towards the respondent.
Civil court will listen until I have a ruling from the family court.
Submitted: 1 year ago.
Category: CA Real Estate
Expert:  Asad Rahman replied 1 year ago.

I am sorry for your troubles. The only theory I can come up with is filing what is called in California a Marvin claim. A Marvin claim must be filed as a separate civil action because it is not a family law matter. The statute of limitations (the period within which a plaintiff must commence the action) for a Marvin claim will depend upon which legal theories are asserted. Applicable legal theories may include breach of express or implied contract, implied partnership or joint venture, quantum meruit, unjust enrichment, constructive fraud, the imposition of constructive or resulting trust, and additional legal remedies. You bought the home when you were not married so it was intended as an implied contract or joint venture.

Customer: replied 1 year ago.
Well it has been made quite clear that I need to get a judgment in the family courts before I can take it to a civil court with that being said in order to help me get a favorable outcome in the family courts what is your take on the thought that I had to pay half of the mortgage while I was not living in the home after I moved out because it was a joint tenancy. Is this actually true?And do you feel I have any rights to claim half of the money, the $30,000, that was Added to the balance of the mortgage that he did not pay? I'm willing to forgo any claim to the down payment money of 120,000 but I would like some information or caselaw on my other two questions I appreciate it thank you very much.
Expert:  Asad Rahman replied 1 year ago.

I could not come up with any case law or statute other than it would be unjust enrichment if he were to get more money simply by not paying the required mortgage payments. The court would be rewarding his bad conduct.

Expert:  Asad Rahman replied 1 year ago.

The Marvin claims can be done simultaneously.

Customer: replied 1 year ago.
Ok. Well then that might be something I could possibly consider. But in a joint tenancy when one person moves out due to separation, are they still liable to pay the other person half the mortgage when they're not living there, thus not being entitled to the equity.
If I were to file a Marvin claim, what information or documents would I need to provide in order to try to get the best outcome?
Expert:  Asad Rahman replied 1 year ago.

I believe as long as you are on the mortgage you have the same obligation to ensure mortgage payments are being made. The Marvin claim is based on the fact this home was bought prior to the marriage so you just have to prove he breached the contract.

Expert:  Asad Rahman replied 1 year ago.

If you do not need further assistance, could you kindly accept the answer and provide a rating so that I may close it out?