Quit Claim Mishap - Help!

[scaredmom123]

What is the name of your state? OH

I have posted about this previously in the family law section. I don't know how to attach a link to that post, but I'll try. [url]http://forum.freeadvice.com/showthread.php?t=331504[/url]

I think this secton might be the best place for my current situation.

I have an agreement between an ex-boyfriend and myself, both represented by attorneys that he would file a quit claim deed w/in 45 days to remove his name from my home. It is way past the 45 days and this has not been done.

My attorney has repeatedly sent letters and made calls to his attorney. We've tried everything and still hear nothing. I have no idea where he is and have not seen him since the day my PFA was granted by the judge. I want to sell my house! I need to sell it because it is not healthy for my daughter and myself considering the emotional trauma.

Now I have found a house that I would like to put an offer on in a nearby neighborhood. I can't afford 2 mortgages and I cannot afford to wait around forever until he decides to file for the quit claim.

Since I have the agreement signed by both of us and our representing attorneys, could that show that he has agreed to and has no claim to the house? Can I put my house up for sale with this not taken care of? Since he cannot be contacted would he still have to sign paperwork for a sale to go through? I am the only one on the mortgage.

Any help is much appreciated. My daughter and I are anxious to move to the neighboring town and put our bad memories in this house behind us.

[Bigfoot]

Since your attorney would have to file locally, why hasn't s/he informed you of how to present this case to a judge? The argument could be made that your ex could be sick, hurt or out of town. And a non-response from his attorney is just plain poor taste.

[Ohiogal]

You didnt' like the answers I gave you? You were told already what to do. The answers don't change to what you want to hear. You can sue him for breach of contract and force the sale. However, unless he agrees to the sale the house doesn't get sold without a court order stating that he must quit claim it to you and he does so.

[scaredmom123]

Not that I didn't like your answer ... I was looking for other possible options from someone in this string who specializes in real estate.

My attorney has already tried to contact him numerous times ... this man CANNOT be located! So I am just stuck with a house that I can't get rid of until MAYBE some day or some year he shows up? That cannot be the only option!

[scaredmom123]

OK, so I have located the ex and I am planning to file in small claims court. I still do not have a quit claim deed completed as agreed upon by the ex, and the belongings that he wanted are still at my house. I have gotten the paperwork to file in small claims, but since I need to put this into monetary value I'm not sure what would be the right amount.

Basically all I want is his name removed from the deed of my house. I am planning to sue for breach of contract. Would it be fair to add up the amount of my monthly mortgage payment from the 45 days that he had to complete the quit claim until now and use that as the monetary value that I am out based on his not completing his end of the agreement? I have been basically stuck with the house, not able to put it up for sale and move my daughter and myself into another home since he has not lived up to his end of the agreement. Should I add storage costs for his belongings from that time also?

My attorney sent him a letter stating that he had 10 days to complete the quit claim before I would move forward in court, and that I would assess a daily storage fee for keeping his belongings if he did not make arrangements to pick them up within said time. I heard nothing. It has been 30 days and I am ready to file and move on with my life.

I just don't know what to put for the monetary value when all I really want is his name removed from my deed and that is it! IF he does not show to the small claims trial, any predictions? Could a judgment be ordered against him for the quit claim deed? Something that I could then take to the courthouse to have his name permanently removed from my deed? I need to sell this house!

I have all the paperwork proving my case. In my opinion it is open and shut. I feel I have taken all necessary steps, even sending him a warning letter before filing. And, as a matter of fact, he was the one who initiated this whole "quit claim agreement" with his lawyer and sent it to my lawyer. I agreed to it and now I just want it fulfilled.

Thanks for any advice.

[garrula lingua]

That small claims court has limited monetary jurisdiction - they do not have the power to issue an injunction -- to order him to perform an act.

If you received a SC judgment in your favor, all the court can do is add up the total monies, to date, any breach cost - I don't see any amt.

Did your atty tell you to file in small claims ???

You have to file in a higher court (file for partition) in order to get the court to order the house sold and the proceeds distributed.
Ohiogal gave you the correct info - you can keep asking the same question, but she already answered it.

[nextwife]

Has he been removed from the mortgage by you refinancing him off?

[scaredmom123]

Yes, I have the mortgage in my name only. But, when they did the paperwork, the deed was left as is. He (the ex) sent me a contract via his lawyer agreeing to have his name removed by quit claim. Then he never followed through.

To answer the other question ... I thought I was doing what Ohiogal recommended by suing him for "Breach of Contract." How is a person who did not choose to study law supposed to know that this can't be settled in small claims? Although some people on this site know the laws, that does not mean that the rest of us automatically understand the advice. It is called FREE advice for that matter. If I knew the answers, I wouldn't be here asking.

And the lawyer I have does not specialize in real estate, so she's not much help in this predicament. I don't want to hire another attorney if I don't have to ... money is tight enough in this economy and I have a daughter to take care of!

[danno6925]

How is a person who did not choose to study law supposed to know that this can't be settled in small claims?

You wouldn't - but your "attorney" ought to know better.

the lawyer I have does not specialize in real estate, so she's not much help in this predicament.

Then why the hell is she your attorney?? You need a knowledgeable attorney, not someone who'll tell you what you want to hear. Don't be so afraid of the bill if you're going to get enough money out of the house.

[nextwife]

Originally Posted by scaredmom123

Yes, I have the mortgage in my name only. But, when they did the paperwork, the deed was left as is. He (the ex) sent me a contract via his lawyer agreeing to have his name removed by quit claim. Then he never followed through.

Sorry, but that is bizarre. Their lender could never have been issued a loan policy for a refinance unless BOTH owners "joined in" on the mortgage. Did he sign any mortgage documents at all?I can't see how a refi could be completed by you alone while he remained half owner. Normally, the title company would require a QC deed to be delivered simultaneously with the refinance being completed. I don't see how this was not a condition of closing in the lender requirements of their closing agent.

[danno6925]

Originally Posted by nextwife

Sorry, but that is bizarre. Their lender could never have been issued a loan policy for a refinance unless BOTH owners "joined in" on the mortgage. Did he sign any mortgage documents at all?I can't see how a refi could be completed by you alone while he remained half owner. Normally, the title company would require a QC deed to be delivered simultaneously with the refinance being completed. I don't see how this was not a condition of closing in the lender requirements of their closing agent.

I agree, it sure is bizarre. The well is drying up in the RE market for mortgage lenders. Some brokers/lenders will take any deal they can get their hands on by any means possible. Could be she had a grubby loan officer who obscured the truth about who holds the title to the property just to get the deal done. Some lenders only care about one thing - closing the deal and getting their cash.

Even still, the title company/abstractor should have put up a red flag when the mortgage policy's vesting did not match the owner's policy's vesting. It's possible this was honestly overlooked, though I doubt it.

[nextwife]

Poster, are you CERTAIN that the refi closing agent/title company did not collect a QC from him at their closing? That maybe is still sitting in their file and didn't get recorded? I can't imagine that they were allowed to close and fund without one.

[danno6925]

I hadn't even considered that as a possibility. There have been some sort of transcription error, and it's just sitting in a drawer awaiting correction. When I worked in a title company's post closing division, I once saw a deed that was executed in February but was not recorded for another 8 MONTHS due to legal description errors. Anything's possible.

[nextwife]

Originally Posted by danno6925

I hadn't even considered that as a possibility. There have been some sort of transcription error, and it's just sitting in a drawer awaiting correction. When I worked in a title company's post closing division, I once saw a deed that was executed in February but was not recorded for another 8 MONTHS due to legal description errors. Anything's possible.

Happens all the time. RODs office kicks back a deed to correct this or that doc prep error, staff gets laid off or changes, and nobody gets around to resending the deed.

[garrula lingua]

Originally Posted by scaredmom123

To answer the other question ... I thought I was doing what Ohiogal recommended by suing him for "Breach of Contract." How is a person who did not choose to study law supposed to know that this can't be settled in small claims? Although some people on this site know the laws, that does not mean that the rest of us automatically understand the advice. It is called FREE advice for that matter. If I knew the answers, I wouldn't be here asking.

And the lawyer I have does not specialize in real estate, so she's not much help in this predicament. I don't want to hire another attorney if I don't have to ... money is tight enough in this economy and I have a daughter to take care of!

I'll take your cranky comments as your 'warm and fuzzy' way of saying Thank You to those who helped you.

It would be a hot day in Hades before I answered another of your posts.