• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Can my ex take out loan w/o my signature

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Status
Not open for further replies.

tuffbrk

Senior Member
OP: Clearly you did not protect yourself. Your Ex took a tremendous risk in allowing her name to remain associated with the mortgage. Perhaps the Ex only did this so that the children would not be displaced.

A party owed funds by your Ex would certainly be able to file a lien against the home as your Ex remains a co-owner of the property.
 


Please cite case law to back up that position.
Sure, I'll look it up. Do you want me to post the multitude of non-family law cases in which equitable remedies were granted, or do you want me to scour case law in search of an opinion where a court states that equitable remedies are not limited to family law cases? The latter will be difficult since it would probably mean that a party actually made that horribly erroneous argument to a court, and then compounded the mistake by appealing the loss. I'll see what I can find, though.

In the meantime, how about you cite case law that backs up your position that equitable remedies are only available in family law cases (if you're right, that should be an easy find).
 
Please cite case law to back up that position.
Well, I stand corrected. Not with regard to whether equitable remedies are available in non-family law matters, but with regard to the difficulty of finding a useful quote on the issue. It was much easier than I envisioned. :)

Here's the Louisiana's Supreme Court:

Louisiana district courts have jurisdiction of all civil matters. La.Const. Art. VII, § 35. They are courts of general trial jurisdiction and administer both law and equity. LSA-C.C. Art. 21. Strictly speaking, therefore, a district court always has jurisdiction in a civil action to grant an equitable remedy. The court possesses the 'legal power and authority' to hear the action and grant the relief to which the parties are entitled. See LSA-C.C.P. Art. 1. When an equitable remedy is sought from a district court in a civil action, the true question is not one of jurisdiction, but whether or not the equitable remedy is warranted under the circumstances. West v. Town of Winnsboro, 211 So.2d 665, 252 La. 605 (La., 1967).
 

LdiJ

Senior Member
Sure, I'll look it up. Do you want me to post the multitude of non-family law cases in which equitable remedies were granted, or do you want me to scour case law in search of an opinion where a court states that equitable remedies are not limited to family law cases? The latter will be difficult since it would probably mean that a party actually made that horribly erroneous argument to a court, and then compounded the mistake by appealing the loss. I'll see what I can find, though.

In the meantime, how about you cite case law that backs up your position that equitable remedies are only available in family law cases (if you're right, that should be an easy find).
I want you to cite some case law that states that someone can lose part of their ownership in an asset, because another, non-related owner has been picking up the mortgage/loan/maintaining the asset, absent a contract to that effect.

I don't need to state case law to back up the position that ownership is ownership. You are the one who is stating that an ownership percentage can be lowered based on "equity", in a non-related party case. I am asking you to prove that.
 
I want you to cite some case law that states that someone can lose part of their ownership in an asset, because another, non-related owner has been picking up the mortgage/loan/maintaining the asset, absent a contract to that effect.

I don't need to state case law to back up the position that ownership is ownership. You are the one who is stating that an ownership percentage can be lowered based on "equity", in a non-related party case. I am asking you to prove that.
I'll see if I can find something when I get a chance later this afternoon. Here's a question for you: Considering it's clear that equitable remedies are available in all civil cases, I'm curious why you think a judge couldn't do what I suggest. What are your thoughts?
 
Here an overall instructive case:

The parties were married on February 4, 1956. A judgment of separation, based on mutual fault of the parties, was rendered on January 13, 1981.

From September of 1980 through April of 1983, Mr. Michel made monthly mortgage payments in the amount of $948.90 on the family home located at 809 Mouton Street in the City of Baton Rouge. The parties have stipulated the total of these payments amount to $29,825.00. The trial court denied the reimbursement sought by Mr. Michel of one-half the stipulated total. The trial court correctly stated:

"LSA-C.C. Article 155 provides that the Judgment of Separation carries with it the dissolution of the community of acquets and gains and thereafter the parties occupy the status of co-owners of the property. The general rule of law is to the effect that a co-owner has the right to use the common property without the payment of rent. Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4th Cir.1964). Further, it is also well settled that a co-owner in possession is entitled to be reimbursed expenses for the preservation of the common property following the judgment of separation of bed and board. Arcemont v. Arcemont, supra, and Kennedy v. Kennedy, 391 So.2d 1193, (La.App. 4th Cir.1980)."

It is a fact Mrs. Michel was denied an effective use of property which she co-owned because Mr. Michel obtained a contempt order embodying such a denial. However, to deny Mr. Michel reimbursement for expenses paid to preserve this property because he sought a contempt order is not an appropriate remedy. The appropriate remedy for Mrs. Michel in this instance was to obtain a partition by licitation of the property or to seek review of the contempt ruling because it took from Mrs. Michel the use of her property. It is clear the payments accrued to Mrs. Michel's benefit as co-owner. Foreclosure and monetary loss to both parties would have resulted from failure to satisfy the mortgage obligations.

As well it would be equitable to allow Mr. Michel to be charged a reasonable rent for his use of this house to the exclusion of Mrs. Michel. However, as the trial court has already noted, the law is well settled a co-owner can not be charged rent. Therefore, Mr. Michel is entitled to reimbursement from the date the petition for separation was filed, September 23, 1980, 1 in the amount of $14,912.50, the stipulated total of payments, $29,825, divided by two. Michel v. Michel, 484 So.2d 829 (La. App. 1 Cir., 1986)
According to this case: No rent for wife, and instead of a larger percentage of ownership the OP would get reimbursed for 1/2 of the mortgage payments for 20 years (also an equitable remedy).

I'll keep looking for other useful cases...
 

LdiJ

Senior Member
I'll see if I can find something when I get a chance later this afternoon. Here's a question for you: Considering it's clear that equitable remedies are available in all civil cases, I'm curious why you think a judge couldn't do what I suggest. What are your thoughts?
Well, to be honest I think that you are taking that "equitable remedies" a slight bit out of the context of this particular set of circumstances. Naturally in any civil case, "equity" is going to be a major factor.

In a partition suit, the foremost "equity" that is going to be factored in, is someone's ownership percentage. A divorce, in an equitable distribution state, is a unique situation that views the marriage as a single ownership unit, and then divides the assets of the marriage, based on "equity". Even then however, if a real asset is 100% owned by one of the parties, a judge cannot take that asset away from that party, the judge can only re-divide other assets to account for it, or order an equity payout.

However, this is not a divorce situation because the divorce happened 20 years ago. This is two unrelated parties who have joint ownership of a real asset.

Lets use another example that has nothing to do with divorce.

Four siblings inherit a four flat apartment building from their parents. One of the siblings has always lived there, paying fair rent to her parents, and over the years, that sibling's children have taken over the other apartments and were paying rent to their grandparents. Naturally all were paying rent just a tad below fair market value, because that is what grandparents do.:)

Under an unspoken agreement (because the other 3 siblings don't want to do their sister and her children out of the home they have always known) the sibling pays the mortgage and continues to collect rent from her children, and she and her children also take on the responsibility of maintaining the property. The other three siblings don't ask for their share of the rent, but they don't contribute to the expenses either.

There is no question that each of the 4 siblings has a 25% interest in the property. There is no question that the other 3 siblings would be entitled to 3/4's of the fair market rent for the apartments (and would be responsible for corresponding expenses). There is also no doubt that if the expenses exceeded the rent, that each of those 3 other siblings would gain a tax benefit, that they are not currently receiving.

Now, should there be a falling out between the siblings, and/or one or more of them filed a partition suit because they finally want or need to "realize" their inheritance. Could a judge give a greater percentage of ownership/equity to the sibling who lived on the property and collected the rents, and paid all the expenses?..because that sibling took responsibility for the mortgage? Could the judge overlook the potential profits or losses (generating a tax benefit) that the other siblings would have been entitled to receive?

If we are going to be talking about pure "equity", there are so many factors that have to be taken into consideration that its quite a complicated process.

The "math" is no different because its one party that occupied or had use of the property in question. Its no less complicated.

If the parties had not been divorced for 20 years the situation would/could be more simple.

However, the bottom line is that someone who owns 50% of a property, owns 50% of a property.

The odds of a judge going beyond ownership interest as far as equity is concerned is slim, absent at least a provable oral contract. The odds of a judge being able to go beyond an ownership interest, without being vulnerable to appeal is also slim.

Ownership is ownership, beyond that the factors are complicated.
 
Well, to be honest I think that you are taking that "equitable remedies" a slight bit out of the context of this particular set of circumstances. Naturally in any civil case, "equity" is going to be a major factor.

In a partition suit, the foremost "equity" that is going to be factored in, is someone's ownership percentage. A divorce, in an equitable distribution state, is a unique situation that views the marriage as a single ownership unit, and then divides the assets of the marriage, based on "equity". Even then however, if a real asset is 100% owned by one of the parties, a judge cannot take that asset away from that party, the judge can only re-divide other assets to account for it, or order an equity payout.
LdiJ, you bring up good points with regard to property ownership, but with regard to "equity," we're not talking about the same thing.

In the law there are two distinct kinds of remedies: Legal remedies and equitable remedies. Legal remedies are by far the most common type of remedy granted. They are usually an award of money based on a legal right (for example, money damages for a breach of contract). Equitable remedies are far less common (and thus, "equity" is not a major factor in most civil cases). They include injunctions, specific performance, estoppel, constructive trusts et al. Equitable remedies are only given when a legal remedy is inadequate and an injustice would result.

In this particular case, the OP has no adequate legal remedy available since there is no contract (although a court could decide otherwise, but I'll ignore that for now). The ex isn't legally liable to the OP for the mortgage, but does legally own the property. However, that results in an injustice, and therefore, a court will probably give the OP an equitable remedy. One such remedy would be to order the ex to reimburse the OP for half the mortgage payments (that's what the court did in the case I cited), and then give the OP a lien on the ex's share of the property for the amount owed. That result is consistent with my primary contention that the ex wouldn't get a free 50% portion of the house.

I'm not convinced that is the only possible outcome, but it is a fair outcome.
 

LdiJ

Senior Member
LdiJ, you bring up good points with regard to property ownership, but with regard to "equity," we're not talking about the same thing.

In the law there are two distinct kinds of remedies: Legal remedies and equitable remedies. Legal remedies are by far the most common type of remedy granted. They are usually an award of money based on a legal right (for example, money damages for a breach of contract). Equitable remedies are far less common (and thus, "equity" is not a major factor in most civil cases). They include injunctions, specific performance, estoppel, constructive trusts et al. Equitable remedies are only given when a legal remedy is inadequate and an injustice would result.

In this particular case, the OP has no adequate legal remedy available since there is no contract (although a court could decide otherwise, but I'll ignore that for now). The ex isn't legally liable to the OP for the mortgage, but does legally own the property. However, that results in an injustice, and therefore, a court will probably give the OP an equitable remedy. One such remedy would be to order the ex to reimburse the OP for half the mortgage payments (that's what the court did in the case I cited), and then give the OP a lien on the ex's share of the property for the amount owed. That result is consistent with my primary contention that the ex wouldn't get a free 50% portion of the house.

I'm not convinced that is the only possible outcome, but it is a fair outcome.
I am glad that you said that. I agree that it would be a potentially fair outcome, but there are also other outcomes that could be equally fair.

However, we really need to see case law that is not between two separated spouses who are not yet divorced.

We really need to see a case where the ownership involved is between 2 unrelated parties...because that is where the OP's case stands now. The divorce was 20 years ago.
 
Last edited:
I am glad that you said that. I agree that it would be a potentially fair outcome, but there are also other outcomes that could be equally fair.

However, we really need to see case law that is not between two separated spouses who are not yet divorced.

We really need to see a case where the ownership involved is between 2 unrelated parties...because that is where the OP's case stands now. The divorce was 20 years ago.
Oh, I see what you mean. I didn't notice that the parties in the case I cited were "separated" but not "divorced." That shouldn't make a difference in the outcome, however. I'll see what else I can find when I get a chance, though (I may have to broaden my search beyond Louisiana).
 
Status
Not open for further replies.

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top