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I have made an arguement for why the judge should review her…

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ForCustomer I have made an arguement...
ForCustomer
I have made an arguement for why the judge should review her recent judgement to rule in my favor. Via the decree - via the decree the only time a price consistent with fair market value must be set is if I don't want to dwell the house. I have attached the arguement. Is it reasonable?
Submitted: 11 months ago.Category: Legal
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Answered in 15 minutes by:
9/18/2017
Lawyer: socrateaser, Lawyer replied 11 months ago
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 40,170
Experience: Retired
Verified

Hello again,

Your file is only one page long. All that's there is the last page (Conclusion). Please try again.

Note: I'm getting tired (though, probably not as tired as you, given the time zone difference). However, I have to prepare for a court hearing on Tuesday, so I may not be able to get back to your issue until Wednesday. You may find it preferable to discuss this matter with "Law Educator," since he's licensed in NH.

Or, you can wait for me to get back to you. Thanks again for using Justanswer!

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Customer reply replied 11 months ago
Here it is
Customer reply replied 11 months ago
If you get a chance I would be great full for input.
Lawyer: socrateaser, Lawyer replied 11 months ago

Okay...

1. Not having reviewed any of the previous pleadings or orders, I'm operating in a vacuum of information -- which likely leads to misinterpretation of the case status.

2. Your argument does not provide any statutory or case law rules for interpretation of a court order. I would have to conduct fairly extensive research on NH law to determine how strongly the decree's orders constrain the court's decision making powers.

3. I would also need to determine the court's authority to modify or set aside the decree. On its face, the order requires that your ex prove that it is more likely than not that you do not wish to sell the property. Typically, a family court judge is entitled to deference under the "abuse of discretion" standard. This means that your judge can make a decision on your desire to sell, and the NH Supreme Court will not reverse the family court's judgment, because under the abuse of discretion standard, an appellate court will not reverse unless the trial court judge's decision is so unreasonable that no other reasonable jurist would have made the same decision. Thus, even a poor decision by the family court will withstand an appeal.

4. Once its proved that you don't wish to sell, the property must be refinanced or sold for "fair market value" (FMV). Assuming that the definition of FMV under NH case law is the price at which a reasonably motivated buyer is willing to purchase, and at which a reasonably motivated seller is willing to sell, then ordinarily, an appraisal or broker price opinion (BPO) would be sufficient to establish a listing price for the property.

5. However, it is at this point in the court's decree, that the legal drafting goes haywire. The order expressly states that the property must be sold for FMV -- but the next sentence states that Melissa shall have the final determination of the sale price. These two orders are irreconcilable -- because the orders effectively grant you the power to determine FMV -- and that is the antitheses of such a determination, as FMV cannot be determined by only one person. It requires the motivated negotiations of a buyer and a seller.

6. This leads me to the following two possible routes: (a) you can stand firm on the claim that the court orders unconditionally permit you to set FMV, and while that grant may be inconsistent with the definition of FMV, the court has made a final order, and it's not modifiable, unless the court sets aside the decree; (b) you can offer to systematically reduce the listing price of the property by $X per month until the property sells. That way, no one can claim you aren't trying to sell, nor can they claim that the property was sold for something other than FMV -- because you will be setting the price, which you are legally entitled to do under the decree, and when the property sells, that price will be the FMV, because the definition of FMV will be satisfied.

Can't spend any more time on this today. Got to finish my prep for tomorrow's hearing.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Lawyer: socrateaser, Lawyer replied 11 months ago

My hearing was continued. So, I have free time. Do you need anything further from me on this question?

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Customer reply replied 11 months ago
How can the judge determine I don't want to sell the property when I obtained an unbiased CMA prior to her order and set the price accordingly REGARDLESS of any claim that my ex will make that the price is not fair? I sought a proper price from a professional in good faith.
Customer reply replied 11 months ago
Whether he agrees with the price or whether the judge agreed with the price is irrelevant to my intent
Lawyer: socrateaser, Lawyer replied 11 months ago

The first sentence of the orders state that if both Peter and Melissa wish to sell the property, then [nothing] -- the orders are entirely silent. There is no order which follows this circumstance. Thus, the judge can make a ruling based upon the court's intent, if it originated the order -- or upon the parties' intent if this order was accomplished via a marital settlement agreement or stipulation. The intent of parties who wish to sell would be to set a listing price that is likely to produce a bona fide offer without 90 days (IMHO as a real estate broker). Since the order is silent here, the judge could conclude that a listing price which doesn't produce a bona fide offer means that Melissa does not wish to sell the property.

This decision would be based upon the court's discretion, which as previously explained, will prevail on appeal, even if the appellate court were to independently find that the decision is erroneous. To prevail on appeal you would have to show that the decision is so bad that no reasonable jurist would make the same decision. This is a very high bar which practically no appellant can overcome. It's set this high, to be frank, so as to prevent the appellate court from having to deal with difficult cases where the trial court's opinion is in question, rather than the underlying legal rationale.

Once the court makes this finding, the second sentence takes effect, which permits Melissa to set the price -- but, it also requires that the price be set at FMV. As previously mentioned, this portion of the order is irreconcilable. FMV objectively, is the price that is arrived upon by negotiation between a motivated buyer and seller. It's not arrived at by the determination of Melissa. Yet, this is precisely what the orders required: Melissa gets to set the price.

If I were representing you, I would stand on this argument: The orders expressly permit you to set the price, and unless the court intends to set aside the order, then Peter cannot argue that FMV has not objectively been met, because FMV, under the terms of the order is set by Melissa.

It's a ridiculous argument, if viewed from an entirely objective view. But, the orders are written to give you the authority to determine FMV independent of what FMV might actually be from an objective view.

That's the best argument for your circumstances, in my opinion.

Hope this helps. Thanks for using Justanswer!

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Customer reply replied 11 months ago
Your arguement makes no sense to me. The decree gives me the sole right to determine when to sell the property. after that of one vacated and the other stays I put the property on the market. Etc. That is the decree. So I don't know where you are coming up with the condition of we both want to sell. It is irrelevant
Customer reply replied 11 months ago
There is a divorce decree which gives me the right to market the property. The only case in which It stipulates I must maker it at fair market value is in the event I don't want to sell it.
Customer reply replied 11 months ago
even then I have the sole right to determine the final sale price
Lawyer: socrateaser, Lawyer replied 11 months ago

Everything you've just said, is the same as what I said.

The bot***** *****ne is that the order gives you the right to set the sale price -- nothing else matters, in my opinion.

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Customer reply replied 11 months ago
39;socrateasersocrateaser
Lawyer
The first sentence of the orders state that if both Peter and Melissa wish to sell the property, then [nothing] -- the orders are entirely silent. There is no order which follows this circumstance. Thus, the judge can make a ruling based upon the court's intent, if it originated the order --... Well I don't understand what you mean by this?
Customer reply replied 11 months ago
I think my point is that I don't see how the judge can find that I don't want to sell?
Customer reply replied 11 months ago
Thus the fair market value clause is not invoked so while I followed a professional
CMA it is actually itrelevant
Customer reply replied 11 months ago
Because the decree gives me the right to market the property and does not specify fair market value.
Lawyer: socrateaser, Lawyer replied 11 months ago

I was interpreting the text of the order as written. And, as written, the order does not make any provisions in the event that the court finds that both Peter and Melissa want to sell. That's all. In order to invoke the forced sale provisions, the court must find that Melissa doesn't want to sell.

Once that happens, the court can order the property sold -- regardless, Melissa gets to set the price. Period, end of story. FMV in this scenario is what is irrelevant -- because Melissa gets to decide what FMV is, regardless of any extrinsic evidence to the contrary.

Hope this helps.

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Customer reply replied 11 months ago
I think the decree does cover the scenario that both want to sell? Under the provision that if one party moves out and gives notice I must place the property on the market with in x time - that is a condition in which both parties want to sell? Yes?
Lawyer: socrateaser, Lawyer replied 11 months ago

I suppose so. But, that's not part of the orders that you displayed in your question. From my viewpoint, the order says nothing about what happens when Peter and Melissa want to sell. But, it doesn't change the current situation, because the bot***** *****ne, again, is that Melissa gets to set the sales price -- period.

Thanks for using Justanswer!

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Customer reply replied 11 months ago
The provision is much longer... I think the sticky part is that the property will be placed on the market at fair market value then I will determine final sales price - I read that to mean that I will use a CMA I select to place it on the market - however I assume there is another way to read it?
Lawyer: socrateaser, Lawyer replied 11 months ago

Seems to me that it doesn't matter, because if Melissa has the final determination of the sale price, then FMV is irrelevant -- i.e., you don't have to accept an offer, even if it's at the full listing price and terms.

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Lawyer: socrateaser, Lawyer replied 11 months ago

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Customer reply replied 11 months ago
I don't think the judge will buy your answer- how can it be justified?
Customer reply replied 11 months ago
Is there precident?
Lawyer: socrateaser, Lawyer replied 11 months ago

There may be precedent, but, that's an expensive and time consuming exercise. Are you tipping? N.B.: I receive the rough equivalent of a Starbucks mocha and a brownie to answer subscription questions.

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Lawyer: socrateaser, Lawyer replied 11 months ago

If you would like me to opt out of this question, please let me know. Otherwise, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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