Oh man, I have to do a court call this morning! I can’t find my keys! I haven’t been out of the house for something like 5 days and I have no clue where in this chaos they are. She won’t be happy…oy
Then you’re doing the best you can given the circumstances that you’re in. Best of luck to you, sincerely.
Stoid are’nt there legal aid schemes for you in California? All the best!
If I was getting a divorce, fighting for custody of my kids, trying not to be evicted…yeah, for sure. Battling with my ex partner/fiance over our house and our business? Not so much.
Thanks, Jodi.
I missed this before:
I’m not sure why I assumed you were male, but sorry, I must apologize.
Have you looked into whether local law schools have a clinic that would cover the topic?
From your description it sounds as if the only options you’ve explored are Legal Aid type organizations, so let me offer a two more just in case:
First, many law schools have business law clinics that take real clients. Not sure exactly where you are, but it is worth looking into whether such a thing exists in your area.
Second, you might find a young associate a big law firm who is willing to help you out pro bono. There is someone at each of the larger firms who coordinates such things, and I’ve definitely heard of cases like yours being taken pro bono. For many firms, this is a bit of a down period in work, so you might find some attorneys with extra time on their hands.
Now that things have settled down a bit (thank you for the tips about help… I’m not sure where to start, given that there’s 10,000 lawyers in LA, but it would certainly be a relief…)
Let me put forth a query to the legal minds. Be the Justices.
He sued for partition of our property, a single family residence. In California, it’s (understanably!) pretty hard to fight a partition suit; everyone is entitled to take their share, obviously. And normally, if it’s a single-fmaily residence, it’s pretty much impossible to partition it in kind. So the end result is almost inevitably going to be an order to sell it.
However, there is one primary “defense” of waiver, explicit or implied, and that was mine, since he had agreed to let me buy him out. (Hell, early on, before we separated, he said he’d give me the damn house.) IN a pre-trial attempt to do an end run around the summary judgment rules, they asked for an interlocutory order to sell the house in the summer of '07. That pleading and accompanying declaration spelled out the fact that we agreed I would buy him out (and explained the fact that I didn’t by telling a big lie that was later exposed in the second trial: that we disagreed about price. Not true, he wanted me to pay him more than he would have received in a sale to a third party, a result that the California appeals court said, in an analagous case, would be absurd.) That’s considered a waiver.
Once we were in trial, she bifurcated the accounting and “everything else”. So she wouldn’t consider the evidence showing that, once you did the math on the house, our debt, and factored in the fact that my ex hadn’t put a dime towards his mortgage since the day he moved out more than two years before, he really didn’t have any equity to recover, so there was no point in selling the house at all. Or, if he did have some, there was no reason not to let me pay it directly to him and keep the house. At that point in time, I had already been approved to refinance the house on my own, which I had planned to do to pay him off if I had to, or at least to let him out of the loan even if he didn’t get any money.
But she ordered the house sold January 10, 2008.
Then the economy happened, among other things. It would take around 100,000 more than the house is worth now to cover our debt and pay all the costs.
The bank turned down a short sale, which I was thrilled about because I don’t want to sell the damn house. I want to stay. I love it and I want to get a loan modification and stay here forever (unless I get rich enough to go someplace better!). I got roommates to help already.
So I’ve appealed to you, and you agree that the rulings were wrong, and that at the time of the trial she should have either let me buy him out or found my waiver valid (not to mention his non-existant equity) and let me just cut him loose from the loan in exchange for a quitclaim by refinancing.
But it’s 2009. Even if my personal financial situation weren’t devastated by all this, no bank is going to refinance a house that’s worth $450,000 for $550,000. In fact, if the house is worth $450,000 and you need to pay off $550,000 in costs and debt, you had better have about $200,000 in cash to pay everything off and put 20% down. (figures are rounded off)
So now what? The Plaintiff is screaming bloody murder becauses he wants out of his loan obligation. What do you direct shall be done to make this right? Once they have been convinced to reverse, it is, supposedly, the appeals court’s plan to return me to where I was before the bad ruling trashed my life.
How ya gonna do that?
And I’m not asking just for the hell of it. It would certainly help my appeal if I can suggest a solution. This is such a clusterfuck that i can see them refusing to reverse even though they know they should just because they can’t think of a way out of this.
So whaddya think? Besides a lottery win, I mean…although if you know how I can swing that… 
Oh, and just to be clear: it’s not like the P has any intention of paying his mortgage or anything, he just doesn’t want his name on the loan. Getting his name off the house is obviously not a problem. If it were entirely his decision, he’d just hand the house back to the bank and be done with it. But I won’t. So here we sit. Even apart from the appeal, our current judge is totally floundering with this, that was yesterday’s topic.
My answer is simple: let me indemnify him. But of course, that doesn’t really solve the problem.
Does anyone know of a way to convince the bank of what is true: insisting on keeping his name on it is pointless, since he has no intention to ever pay? Again, the normal thing is for me to assume the loan, and ours is technically assumable. But this thing has devastated my credit. So unless the bank is willing to roll with that reality, we may be chained together forever.
All ideas welcome. Ah…if only the appeals court had jurisdiction over our bank….
Is this a fair summary of the case? If not, please correct it.
You had a divorce. In California, the court splits the assets acquired after marriage 50/50. A home can’t be split, so it gets ordered sold unless the parties work it out between themselves. Ex-husband agreed to work it out, but this fell through because, you contend, he asked for an unlawfully high price. The lower court ordered the house to be sold.
You have two points of appeal: First, that ex-husband waived his right to ask for sale of the house by asking for an unlawfully high settlement price (this actually has two elements—the unlawfully high request and the whether that results in waiver). And second, that the trial court is legally obligated to assess who paid the mortgage is evaluating how to the split up of assets.
Only the partition half.
Nope. Engaged, never married. If we had married, it would have been much simpler.
I know my angles of appeal, it’s resolution that’s stumping me. If the appeals court says I’m right, no partition…what can be done to let him out of his obligation on the house? I have a sinking feeling that they will say ok, bad ruling, send it back to the trial court and we’re still in the same mess of having no answers except limbo.
it’s a conundrum.
Generally, a bank will be reluctant to let someone off a mortgage by any process short of refinancing. The reason for this is that if the loan goes into default, they want someone to come after.* The bank may choose to release him, but it is unlikely.
Assuming that your state allows a deficiency judgment which is something that my state does.
California doesn’t allow deficiency judgments on purchase money firsts only. Seconds, lines of credit, refis… they are all fair game, theoretically.
If this were normal times, the questions and answers would be clear. It’s precisely because everything is haywire that it is muddy. The banks are thinking outside the box a little these days.
Since my ex doesn’t have a pot to piss in, as my mother was fond of saying, “going after him” (assuming such a thing were necessary) would be a wasted exercise.
Are banks going after people for deficiency these days? That seems rather unlikely…they’d be spending every dime on lawyers to hound people who have nothing to be hounded for. That doesn’t seem like a fiscally prudent choice.
Isn’t the real question how to get his name off the title? If he waived his right to partition, you don’t really care if he remains on the mortgage, do you?
Pro se in FL.
I am getting the impression that it’s pro se pretty much everywhere except California, it’s pro se in the federal system as well.
I didn’t see this question posted back in feb…
No, I don’t care if he remains on the mortgage at all, but HE certainly does, and at this point, that would be and is his objection to having his name taken off title (believe me, I’ve been studying up on ways this could be converted from his partition to my quiet title!). And unfortunately, the court has no jurisdiction over the banks and can’t just order them to remove his name from the notes because his name has been removed from the title (assuming it were).
It isn’t clear to me how that adds up to the court being unable to remove him from the title.
That’s not what I’m saying. The court can remove him from title. But it doesn’t matter, because it can’t remove him from the mortgage.
It becomes a matter of what is fair. Is it fair to remove him from title, thereby denying him any ownership of the property that secures the debt, but leave him responsible for the debt?
He would argue (and rightly so, if nothing else is considered) that it is not fair. If he cannot be relieved of his obligation, he shouldn’t be relieved of his ownership.
Of course, I were king of the forest, given the complete picture, I would say “tough shit, you made some really hideous decisions. You had three separate opportunities to get off title, off the mortgage, and walk away with money. You scorned all three because you wanted to be vindictive. So you now you have to put up with having you name attached to a mortgage on a property you don’t own. Oh well.”
But there are a couple of possible ways this could be set up so that I don’t have to lose my house and he can have some degree of protection. But I need a judge to order it. Hence my fight.
In my town, something like 38% of the houses are in foreclosure.
I notice that many of the 4 bedroom models have 8 and 10 vehicles parked there regularly during the day.
Maybe you don’t have enough roommates yet.
If you did, you could use the extra money coming in to refinance the house at the same price as the current mortgage, without him. Use the equity in the hose as a downpayment along with savings from the rent income.
Sure you will overpay, but you seem to really really really want this house. A few years with lots of extra people there, and you will be able to pay it back down. Then, sometime later, you will be able to profit when the market recovers if you ever sell.
So, it seems there is a Alternate Negotiated Agreement available, with no courts necessary. You might not like the cost to you - lots of roommates for a while - but you don’t like the other avenues either, and you don’t see a way out down those roads at all.
Or you could just let the house go. Sell it, take the proceeds, and buy the house down the street at prices as depressed as yours.
So where do you stand re your appeal at this point?