Divorce Mortgage non payment

[inkroar]

What is the name of your state (only U.S. law)? TEXAS

Good day – I’m in quite a pickle. I am being sued for nonpayment of my mortgage by my ex. We split due to finding out the ex’s infidelity. And now the details…

We have been divorced for 4 years now. I took the house and credit card expenses as she was not financially capable of doing so. I thought it would hurt my credit if she decided to stop paying. Of course, this did not relieve her of the mortgage. As we know, and I came to find out a year or so after the divorce, the mortgage company does not recognize a decree of divorce.

I have been making the payments faithfully. I’ve been working 2 jobs to make ends meet. I have been remodeling the house month by month, little by little. The house was in shambles when I moved back in. (I was in an apartment at the time we were separated and she would house sit animals along with her pets and let them leave their bodily waste on the floor...which damaged the flooring among other things that were done). However, last year my area was hit by hurricane Ike. I had to get prepared and make sure the place would stand and was livable for my two pets and brother who was staying with me at the time. The mortgage company made me aware that they were working out a repayment plan for all those in my area because of the hurricane. I asked the rep. of the mortgage company if this would hurt my credit (because I wasn’t the only name on the mortgage being affected). He assured me “YES, it will be fine. As long as you pay the repayment on time” No problem. With the repayment plan, I was allowed to miss two months. I took advantage of it suspecting nothing.

In March of this year I received a letter from the ex's attorney telling me to get make payments or I'd be sued. I called the attorney and he made it quite clear of that fact. I thought, I don’t want anyone to be affected by this. It scared me. So I called the mortgage company and found out that yes…indeed it was true. It affected our credit. I was not happy, to say the least. I paid the amount in full to get off the repayment schedule and was being charged my normal mortgage rate once again. I received a letter from the mortgage company stating I’m up to date on the mortgage payments as well.

Now, just this past week, I was served with a suit from her stating I have not been making timely payments, more specifically I was 60 – 90 day’s late on a mortgage payment. The suit asks the court to throw me in jail for this and after said time, to put me on probation for many years after.

I have started looking for an attorney. However, is there some way to avoid all this? I am no slouch. I have a good job and 2nd job as well. I’ve never been in an event such as this. Very worrisome. I'm a good person and can not believe this. I have attempted assuming the loan and refinancing as well. I don't qualify. Perhaps if I attempt taking the 60 - 90 day's off of the credit report by asking the mortgage company to do so since I've bee current and been a good payor of my loan.

I keep saying God will get me through. It is another test. However, my life could be in ruin just because of trying to do what I thought was right?

What is the name of your state (only U.S. law)? TEXAS

[mistoffolees]

Are you currently behind on on your mortgage?

If so, you need to bring it up to date because she is within her rights to demand so. It's extremely unlikely that you'd be looking at jail time, but you will almost certainly be ordered by the judge to bring things up to day and may end up paying her legal expenses - and possibly even a fine.

If you are current on your mortgage, your best bet is to get an attorney to handle this because it shouldn't take very long. Their response will probably be something along the lines of "yes, due to the hurricane, he fell behind with his payments and was mistakenly told by the bank that it would not affect anyone's credit. After learning that it did have an impact on credit ratings, he immediately brought the mortgage up to date and continues to pay in a timely manner. They will then ask for the suit to be dismissed - and it probably will be.

[inkroar]

Oh yes, I'm current in my mortgage payments. Due to the incident of being misinformed at the end of last year and being informed by her attorney early this year, I paid to current and have been current since.

They have something on the suit stating that I missed a court hearing in June. But I was never served papers for that...is that something that tyically happens?

Someone told me that once a suit is filed...I HAVE to go to court no matter what. Even if I am current.

[inkroar]

oh and mistofiliees....you're are incredibly educated and smart...I think your responses are incredible and you are pretty straight with someone....no matter what they may think.

I respect that.

[Golfball]

Do you have the forbearance notice (including non-impact to credit) in writing?

If so, encourage your X to dispute the credit hit, since I don't think you could do it on their behalf. (Make sure the X has the documentation.)

Edit: Are they basing their allegations off of the payment record, or an actual credit report? Check your credit, too to see if there is a late payment recorded there. If they are basing their allegations off of the payment record, and the bank rep you talked to in March was mistaken (imnsho, not entirely out of the question), then your X shouldn't imnsho, have a leg to stand on, *especially* if there is no actual hit on their credit report. You *might* be able to fight the credit hit (if it's there), if no late fees were assessed. (Because then you have every impression that a forbearance was granted.)

[inkroar]

Actually, I do not have the notice. I'm sure I could get it. However, it was told to me by a rep. from the mortgage company prior to agreeing to a new repayment.

I skipped two payment thinking it wouldn't effect the credit rating per that rep. But it did, so immediately I paid up the two months worth missing and have been up to date most of this year (excluding the instance I just wrote of) and have not missed a payment all year.

I believe I could dispute it with the mortgage company as we both are on the mortgage though. I don't think that costs anything, but I'd be willing to pay for that if that's what I needed to do to avoid this suit.

[Golfball]

See my edit.

And just because the X's attorney says your X's credit rating had deragatory information on it in regards to the mortgage does not necessarily make it so. (You haven't said whether you've pulled your credit, and found deragatory info on it in re: mortgage, nor whether your X's attorney has supplied you with the relevant portions of X's credit report.

Edit: Is there an indemnity clause present in any of the divorce paperwork?

[inkroar]

I have not pulled my credit, but the mortgage company did confirm that they noted it 60-90 day's late. I spoke to their department which handles this.

What is an indemnity clause? I cannot remember if it does or not.

Oh...and they are basing it on the credit report pulled. That's what the suit states on it. I haven't seen it with my own eyes. I am waiting for a response from a lawyer I called to assist me yesterday morning...but I've not a reply from him as yet.

I'm also not sure about missing that court date in June. I never saw anything telling me I had to appear for one, and then I see it on this set of papers that were served.

[mistoffolees]

Originally Posted by Golfball

See my edit.

And just because the X's attorney says your X's credit rating had deragatory information on it in regards to the mortgage does not necessarily make it so. (You haven't said whether you've pulled your credit, and found deragatory info on it in re: mortgage, nor whether your X's attorney has supplied you with the relevant portions of X's credit report.

Edit: Is there an indemnity clause present in any of the divorce paperwork?

Yes, OP should ask for a copy of the credit report and also find the WRITTEN documentation that he was told that his credit wouldn't be affected. However:

1. It's all really a moot point now since he's caught up. If the ex proceeds with the suit, he can explain the situation to the judge, explain that it's been corrected AND that he told the ex it had been corrected and the suit will almost certainly be dropped. His ex may get a stern warning about frivolous suits, as well.

2. IMHO, indemnification clauses in a case like this are worthless. Just how is the ex going to prove a dollar value to the damage to her credit rating? Sure, an expert could do it, but it would be expensive, highly dependent on what the person was planning to use credit for, and quite speculative. And without a dollar value to the damages, it's hard to expect OP to indemnify ex even if there WERE an indemnification clause.

[Golfball]

Originally Posted by mistoffolees

Yes, OP should ask for a copy of the credit report and also find the WRITTEN documentation that he was told that his credit wouldn't be affected. However:

1. It's all really a moot point now since he's caught up. If the ex proceeds with the suit, he can explain the situation to the judge, explain that it's been corrected AND that he told the ex it had been corrected and the suit will almost certainly be dropped. His ex may get a stern warning about frivolous suits, as well.

The late payment can still be deragatory information that sticks around on the reports of both mortgagors, even if there are currently no past-due balances on the account. (Assuming it is on the credit report itself.)

OP could substantiate their account with other documentation (such as mortgage statements from the time of the forbearance that do not show past due amounts and/or late fees), in absence of a written notice. (And if the mortgage statements from the time period in question *do* indicate late fees and/or past due balances, then OP contributed to the issue at hand.)

2. IMHO, indemnification clauses in a case like this are worthless. Just how is the ex going to prove a dollar value to the damage to her credit rating? Sure, an expert could do it, but it would be expensive, highly dependent on what the person was planning to use credit for, and quite speculative. And without a dollar value to the damages, it's hard to expect OP to indemnify ex even if there WERE an indemnification clause.

To OP: An indemnification clause is where you agree to reimburse (or indemnify) the other party against any damages caused by your failure to satisfy the relevant terms of the contract.

Mist: That is definitely an issue (indemnification clauses usually aren't worth the paper they're printed on from what I've heard), however, I'm fairly sure that the OP's X (+ attorney) could come up with some sort of dollar value for the damages. (How accurate said value may be is anybody's case, but they can come up with a number.)

[inkroar]

Wow - I hope what I've read is what will happen. I've been sweating with worry about this.

Because I didn't show up for the court meeting in June (which I never saw requested of me), can I still be held in contempt?

Don't they serve you when you are being sued? I was served for this October hearing but never one for June...i didn't even see a mailing of such a thing.

[mistoffolees]

Originally Posted by inkroar

Wow - I hope what I've read is what will happen. I've been sweating with worry about this.

Because I didn't show up for the court meeting in June (which I never saw requested of me), can I still be held in contempt?

Don't they serve you when you are being sued? I was served for this October hearing but never one for June...i didn't even see a mailing of such a thing.

Your failure to attend could cost you a great deal - basically, you could lose.

You should have been served, however. You could possibly have whatever was decided in June set aside due to lack of service. However, I'd suggest an attorney's assistance.

[inkroar]

Double Wow - does that kind of thing happen? That a person never receives notice of meeting in court on a certain date and then gets blamed for not going even if it wasn't served?

That would be terrible!

How does one even prove that one wasn't served??? I mean, I didn't sign any documents stating I was served for June. Just amazing to me.

[mistoffolees]

Originally Posted by inkroar

Double Wow - does that kind of thing happen? That a person never receives notice of meeting in court on a certain date and then gets blamed for not going even if it wasn't served?

That would be terrible!

How does one even prove that one wasn't served??? I mean, I didn't sign any documents stating I was served for June. Just amazing to me.

It SHOULDN'T happen, but I can't say that it doesn't happen on occasion.

Basically, it's impossible for you to prove that you weren't served. When you receive a court judgment and you were never served, you would then go back to court to have the judgment set aside for lack of service. It would then be up to the other person to prove that you were served.

[Texas Pooh]

Inkroar,

Go to the courthouse and find the clerk's office. Ask to see the file on the lawsuit, and pay for a copy of every piece of paper in it. Not only do you need to look at everything, but your new lawyer will want it.

There will be a "return of service" on a "citation". The citation is the document that accompanies the petition. The citation and petition have to be served on you, and at the bottom of the citation is a description of how and when you were served. That's the "return" and it gets filed with the court.

There are lots of ways to get served in Texas - you don't have to be personally handed the papers. Its possible that another form of service was used, and that's why you don't think you were served. We won't know until you look at the return.

You would have been sent (by certified mail) a notice of the June hearing if you had filed an answer to the lawsuit. However, if you didn't file an answer, you might not have been required to get notice of the June hearing.

We need to know what the June hearing was for, and what the October hearing is for. Can you tell us that information?