Return to court to force refi/sell?

[a cad man]

What is the name of your state? Florida

Along with everything around my divorce a new headache has emerged. My ex was not required by decree to sell/refiance the marital home until 2018. By decree she is to pay the mortgage, taxes, and insurance. But there is 'or else' in there. Only my name is on the mortgage (of course).

So what to do when she consistantly is late paying the mortgage? What should my legal approach be? I would like to get my equity out now if I could.

For everyone's enjoyment, here is the record of the payment dates. She started out bad but then got better but I'm seeing a late trend again.

Due date Paid on Days late
12/1/2005 1/6/2006 36
1/1/2006 2/28/2006 58
2/1/2006 3/10/2006 37
3/1/2006 4/10/2006 40
4/1/2006 5/16/2006 45
5/1/2006 6/13/2006 43
6/1/2006 7/10/2006 39
7/1/2006 7/31/2006 30
8/1/2006 8/11/2006 10
9/1/2006 9/11/2006 10
10/1/2006 10/6/2006 5
11/1/2006 11/3/2006 2
12/1/2006 12/5/2006 4
1/1/2007 1/4/2007 3
2/1/2007 2/5/2007 4
3/1/2007 2/27/2007 -2
4/1/2007 4/6/2007 5
5/1/2007 5/8/2007 7
6/1/2007 6/5/2007 4
7/1/2007 6/29/2007 -2
8/1/2007 8/13/2007 12
9/1/2007 9/10/2007 9

 

[moburkes]

Your posts says that there is a "or else" in the decree? What is the "or else"? If she is not required to do anything until 2018, there is nothing you can do. You agreed to this (stupidly).

 

[nextwife]

Your posts says that there is a "or else" in the decree? What is the "or else"? If she is not required to do anything until 2018, there is nothing you can do. You agreed to this (stupidly).

I'm not sure. She also agreed to assume responsibility for paying the mortgage in accordance with it's terms. As she HAS failed to meet the terms of that agreement, he may be able to show that she defaulted on their agreement,and that refi/sale is the only appropriate recourse.

 

[moburkes]

I'm not sure. She also agreed to assume responsibility for paying the mortgage in accordance with it's terms. As she HAS failed to meet the terms of that agreement, he may be able to show that she defaulted on their agreement,and that refi/sale is the only appropriate recourse.

How does she know what the terms are? The mortgage company hasn't started foreclosure proceedings, so it must be okay with the late payments.

 

[a cad man]

Well right after the divorce i was going nuts on her about the late payments. I threatened legal action and she eventually got it on schedule. Since I didn't have the cash to pay a lawyer I didn't press it.

She knows when the payment is due since she gets a coupon in the mail.

Additionally, there are $350+ late fees awaiting to paid that she is ignoring. At the moment none of these 30 or less day late payments hurt my credit. But i am tempted to claim she is flirting with it too much.

 

[moburkes]

Are you sure that the late fees haven't been paid? You'll need to read your mortgage agreement to see if funds aren't applied to fees first, then the mortgage.

 

[nextwife]

How does she know what the terms are? The mortgage company hasn't started foreclosure proceedings, so it must be okay with the late payments.

The terms are PAY BY X DATE. There is no way that she wouldn't KNOW what that date is.

Just because she hasn't been foreclosed does not mean she has not failed to "take RESPONSIBILITY" for the payments. His credit score gets negatively impacted for every late pay. And if she is to be "responsible" to pay the mortgage, that means she must pay ON TIME.

He should definitely use her pay history to prove she is failing to act in accordance with the divorce agreement. He should also see about getting his before and after credit scores to show the damage.

Frankly, he should have filed contempt on the first incidence that he became aware of.

 

[a cad man]

Are you sure that the late fees haven't been paid? You'll need to read your mortgage agreement to see if funds aren't applied to fees first, then the mortgage.

I am sure they have not been paid. When I called the mortgage company they didn't seem to mind and in the end would get their $ when the loan is closed.

But that means I would pay half since it would come off the equity split.

 

[moburkes]

Frankly, he should have filed contempt on the first incidence that he became aware of.

Well, he said that she gets the mortgage bill every month, so she does know. However, what he should have done, was not agree to be on a mortgage that someone else is responsible for paying. That was dumb.

 

[a cad man]

Now I'm getting some info. File a what? Contempt? Do I need a lawyer to do that?

 

[BoredAtty]

Well, he said that she gets the mortgage bill every month, so she does know. However, what he should have done, was not agree to be on a mortgage that someone else is responsible for paying. That was dumb.

The OP may not have agreed to it. In my state, the judge has discretion to make that decision, regardless of who is on the mortgage.

 

[a cad man]

The OP may not have agreed to it. In my state, the judge has discretion to make that decision, regardless of who is on the mortgage.

The judgement that the Judge develop is what I got. I did have the option to fight the issue but my crappy lawyer said I would have little hope of change and suggested seeing the magistrate later on (when I got more cash).

 

[nextwife]

The OP may not have agreed to it. In my state, the judge has discretion to make that decision, regardless of who is on the mortgage.

IMHO, such a judgment should not be so cavalierly imposed on another's credit. Too many judges with no clue of how credit scoring works, and how any open mortgage will negatively impact the borrowers future borrowing ability for the duration of the loan, are just deciding that it's OK for one spouse to tie up the other's ability to also get a house. Sometimes for DECADES!

And then there is this hogwash that the other party will be "fully responsible" for the debt that a third party has granted. The truth is that ONLY the lender can release the borrower from responsibility, yet many parties come out of court with agreements that falsely lead them to believe that the judge made it so the other party is fully responsible for the debt and they are not.

 

[BoredAtty]

IMHO, such a judgment should not be so cavalierly imposed on another's credit. Too many judges with no clue of how credit scoring works, and how any open mortgage will negatively impact the borrowers future borrowing ability for the duration of the loan, are just deciding that it's OK for one spouse to tie up the other's ability to also get a house. Sometimes for DECADES!

And then there is this hogwash that the other party will be "fully responsible" for the debt that a third party has granted. The truth is that ONLY the lender can release the borrower from responsibility, yet many parties come out of court with agreements that falsely lead them to believe that the judge made it so the other party is fully responsible for the debt and they are not.

To play devil's advocate...

Those types of laws are generally for the benefit of children. My guess is the OP has kids with his ex, and she has custody. If the laws did not give judges that authority, then either (1) there would be situations where children's lives could be abruptly disrupted due to an otherwise unnecessary move to a possibly less than stellar residence, or (2) the spouse on the deed would almost always get custody.

 

[moburkes]

Not necessarily. My mom stayed in the marital home, but refi'd. Her ONLY income was child support and alimony.