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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118789
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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If my ex wife has defaulted in paying the mortgage payments

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If my ex wife has defaulted in paying the mortgage payments on an investement house which she was solely responsible for paying, can this be done with a motion for summary judgement. There was no provision in the marital house that the house would be sold if she did not pay. She has not paid in four years, i ma in the mortgage note, and I did a quit claim of deed in 2005.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If your ex was awarded the house and is in default, you have to file a motion for an order to show cause for contempt of court and as a relief you would ask the court to award you the investment property or order the property sold based on her non-payment. This is done with an order to show cause for contempt, not a summary judgment.

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Customer: replied 4 years ago.

The house had to do with a martial agreement and equitable distribition. The judge has found her behavior despicable in his findings and that she was obtaining rent while not paying mortgage payments. The judge ruled last year for her to do monthly accounting of the rents and provide half which she has not done despite contempts motions. The judge ruled that the house was part of equitable distribution and there was no provision to sell the house in case of default. Do you agree with this? There has been a foreclosure on the property already that it was dismissed once already. I am on the note, am I responsible for future judgment of foreclosure if the court has ruled she is solely responsible for the mortgage payments?

I am being injured by her not paying and the my credit being affected for years to come. During equitable distribution in 2005 I did not forsee this damage. Can I obtain any damages for her injury to my credit?

Thank you for your response.

The courts many times give parties a lot of rope to hang themselves with on contempt motions, but you have to file another contempt motion for what she has done now. It does not matter there was no provision to sell in case of default, you can ask for that now as part of the contempt motion. Yes you are liable if your name is XXXXX XXXXX mortgage even though the court ordered her to be liable that court order is only between you and her and the court cannot alter the contract with the mortgage company. Thus, your claim if she has caused harm to your credit score and the lender goes after you would be in a contempt motion against her and ask the court for a sale and to award you damages for her conduct in the form of some compensation like attorney's fees and a higher percentage of compensation from sale of the house if there are any profits or for the court to order her to pay you some money for the harm she caused to your credit.
Customer: replied 4 years ago.

Everything you have said has been on target. I filed another motion for contempt and the new judge said to make it easier for him to understand " he was not into working that day" and told me to resubmit it stalling for time for my ex wife. This has alreadygone thru appeals court so he had very litle to understand. This wook I filed a petition for modification requesting house to be sold or a deed i lie of foreclosure be given to the mortgage company. The money owed in mortgage payments is over $200,000 without costs but since she is rent free she does not care. Does this constitute and emergency motion? How can I prove a value on damages caused by credit score which will affect me 7 years into the future. My agreement has a DEFAULT attorneys fees provision, I always read in appellate opinions that a marital agreement is like any other type of contract.

Thank you for your response.

Unfortunately, courts put you through these exercises in futility because they just do not care. I am afraid this is not an emergency, you have to file it as a regular motion. A marital settlement agreement is indeed treated like a breach of contract, but at this point you are already in court on this, so you would need to pursue the contempt since the court has ordered her to do these things subsequently in court proceedings already.

Putting a value on the future damage to your credit report is tough, you have to show actual harm or alternatively the court will use the default provisions of minimal damages from the Fair Credit Reporting Act and that is only $1000 per violation, which you do not want. You have to figure as best as you can the damages this credit score damage and that is very hard even for attorneys I am afraid when the attorneys have all of the documents and records in front of them and it is impossible when we have none of the records as on this site I am afraid.
Customer: replied 4 years ago.

Does it matter that I have a motion for contempt, and a petition for modification to get id of the house at the same time? I did not want the excuse of the judge saying it had to go thru a petition for modification to get it sold. This judge unfortunately is an old time judge who thinks he is an emperor and he runs his courtroom as he feel like. Is it a ggod strategy to request to be given the house since she is not interested in selling and I can give the house to the mortgage company in a deed in lieu of foreclosure as they have suggested erasing the debt owed. Or is it better for court to appoint somebody independntly to transfer the ownwership of the house.

Thank you for your response.

No it does not matter you filed for a contempt and asking for selling the house as well as the modification, you are entitled to ask for alternative types of relief as that allows the court a choice of what to do to settle this matter.

What you are hoping for is that he either gives you the house or sells it so you can pay off the mortgage balance, either of those would be good for you. Selling it would be better because you can pay off the mortgage and be done instead of negotiating a deed in lieu.
Customer: replied 4 years ago.

After giving her a quit claim deed in 2005 she obtained a second mortgage from well fargo for $225,000 which I forgot to mention to you. . Does this have any effect on me? this second mortgage is only under her name. How does this affect selling the house or a deed in lieu of forclosure.

Thank you for your new information.

The second mortgage is her problem. Of course the second mortgage could impair the sale of the house and the deed in lieu since they are a secured creditor in the house. This is something the court will have to deal with and I do not have access to all of the assets and the case file to even begin to know what the court could give you in exchange other than awarding you monetary sanctions against her to make her pay you for the damages she caused you.
Customer: replied 4 years ago.

Wells Fargo, the second mortgage holder would need to agree to compensation before a deed in Lieu of foreclosure takes place?

Thank you for your response.

The second mortgage would have to agree to compensation with the deed in lieu.
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