Contempt years after Quit Claim

[KC_911]

You have children with her correct? Do you really want to do that to your children? I am doubting that it was truly fraud on her part, I think it seems more like ignorance, mixed with a little bad faith maybe. If she truly knew she had no case, then she would have known it would fail.

Yes I do have children with her and I don't want to do anything that would be harmful to the children. I'm not sure what the punishment would be to the ex if she was found guilty of fraud. There was no ignorance on the part of the ex with regards to any of this. She was/is an active licensed realtor so she knew exactly what she was doing when she signed the Quit Claim deed. She knew that the money she received was a buyout and not a prepayment as she is now alleging. She knew she received half of the equity in the home based off of a then current appraisal. There is no case based on the actual facts and documents and this is where the deception comes into play. As stated she is claiming the buyout was only a prepayment. She is going to claim that the appraisal was incorrect and further that I stated on the 1402a that the fair market value of the home was much higher than the appraised amount. The FMV amount on the 1402a was an amount she told me it was worth. Her being a realtor I didn't question it and didn't find it important since we were going to split the equity at whatever we actually sold the house for. I wouldn't put it past her to create some bogus documents/emails to make it look like it was something other than a buyout.

So why would she do this?

1. Greed. The market has come back and she feels entitled to any increase in equity.
2. Revenge. She is ticked that I went after and was granted child support when she moved out of state.
3. Jealousy. The grass hasn't been greener on the other side of divorce for her but has been for me.

She told me if she moved back to the area, which she did, she was going to have no mercy on me and come after the house. She has kept her word on that regardless of what she may be doing to the children.

 

[LdiJ]

Yes I do have children with her and I don't want to do anything that would be harmful to the children. I'm not sure what the punishment would be to the ex if she was found guilty of fraud. There was no ignorance on the part of the ex with regards to any of this. She was/is an active licensed realtor so she knew exactly what she was doing when she signed the Quit Claim deed. She knew that the money she received was a buyout and not a prepayment as she is now alleging. She knew she received half of the equity in the home based off of a then current appraisal. There is no case based on the actual facts and documents and this is where the deception comes into play. As stated she is claiming the buyout was only a prepayment. She is going to claim that the appraisal was incorrect and further that I stated on the 1402a that the fair market value of the home was much higher than the appraised amount. The FMV amount on the 1402a was an amount she told me it was worth. Her being a realtor I didn't question it and didn't find it important since we were going to split the equity at whatever we actually sold the house for. I wouldn't put it past her to create some bogus documents/emails to make it look like it was something other than a buyout.

So why would she do this?

1. Greed. The market has come back and she feels entitled to any increase in equity.
2. Revenge. She is ticked that I went after and was granted child support when she moved out of state.
3. Jealousy. The grass hasn't been greener on the other side of divorce for her but has been for me.

She told me if she moved back to the area, which she did, she was going to have no mercy on me and come after the house. She has kept her word on that regardless of what she may be doing to the children.

I would certainly ask again that she be responsible for your attorney fees as well as filing a motion for contempt for her not paying the previous attorney fees that she was ordered to pay. You might even ask the judge to sanction her attorney since her attorney should certainly know better than to do this kind of thing.

 

[KC_911]

I would certainly ask again that she be responsible for your attorney fees as well as filing a motion for contempt for her not paying the previous attorney fees that she was ordered to pay. You might even ask the judge to sanction her attorney since her attorney should certainly know better than to do this kind of thing.

LdiJ...Thank you for that input. I agree that is probably the better route to take than to go after fraud charges. I'm not looking to have my children's mom jailed if that's a possibility, just to get her to quit this nonsense. On the previous attorney fees she had her attorney give mine a check for that at the Case Management Conference so that is finally resolved. She does have significant child support arrears (over $8k and growing) so may file contempt in regards to that if her company doesn't start garnishing her wages soon. I'm not sure her attorney knew about the Quit Claim Deed when the motion was filed as she asked us to send it to her when my attorney told her about it. She has known about it for a couple of weeks now and hasn't had it dismissed.

 

[Ohiogal]

I get it. It's a slam dunk, only if an attorney collects money. There is a lot of accusations circulating the globe about justice systems in so called third world countries, ie Indonesia where eight confessed drug smugglers were just recently executed by Indonesian law. The reality is that corruption exists in every country worldwide.

If this OP can't get justice in this case without paying a bloodsucking lawyer here in the US, we are no different than any other country on the planet.

I do not suck blood. Dangit. Wine, maybe. But not blood. How dare you insult me and attorneys like me.

 

[Ohiogal]

You have children with her correct? Do you really want to do that to your children? I am doubting that it was truly fraud on her part, I think it seems more like ignorance, mixed with a little bad faith maybe. If she truly knew she had no case, then she would have known it would fail.

She has children with him as well if that is the case and doesn't seem to mind to try to get more out of him. And yes, it is fraud if she is misleading the court.

 

[LdiJ]

LdiJ...Thank you for that input. I agree that is probably the better route to take than to go after fraud charges. I'm not looking to have my children's mom jailed if that's a possibility, just to get her to quit this nonsense. On the previous attorney fees she had her attorney give mine a check for that at the Case Management Conference so that is finally resolved. She does have significant child support arrears (over $8k and growing) so may file contempt in regards to that if her company doesn't start garnishing her wages soon. I'm not sure her attorney knew about the Quit Claim Deed when the motion was filed as she asked us to send it to her when my attorney told her about it. She has known about it for a couple of weeks now and hasn't had it dismissed.

Two weeks isn't very much time in attorneyland. Depending on how much time she spends in court she simply may not even had time to review it yet.

However, some attorneys will go forward with something if their client insists, even if its hopeless.

 

[latigo]

Listen, Kansas City, please!

I've waded through this extensive thread and wish to make some "professional" comments.

I understand that your seeking to compare other legal opinions/advice with that of your attorney. Something other lawyers are reluctant to do.

However, from what I have learned from reading your posts I think it is appropriate.

First of all it doesn't take much common sense to realize that your ex-wife is not in a position to ask the court to enforce the provision in the decree ordering that the home be sold. Not in the face of the quit claim deed in which she alienated unto you all of right title and interest in the property.

In order to do so she would first need to set aside and vitiate that QCD! In other words, attempt to recreate the status that existed at the time the decree was entered.

But she cannot do that legally or practically, not even if she could prove that she signed the instrument under coercion. She would be required to refund the money. which she probable doesn't have. She would need to prove by "clear and convincing evidence" (not just a preponderance) that she was indeed coercively induced to sign against her will. Also, that she wasn't afforded a reasonable opportunity to first consult with her lawyer. One she appears to have had from the get go.

Where I think your attorney is/maybe failing is not having filed a motion for monetary sanctions (not against not her) BUT against her lawyer citing Missouri Rules of Civil Procedure Section 55.03 (d)(1).

The statutory grounds being that he signed the motion for OSC fully knowing, or could have become conscious of the fact, that her motivation was frivolous, for an improper purpose, such as to harass, delay and needlessly increase the costs of litigation, etc. etc." (See" Mo. RCP Section 55.03 (c)(1) thru (4).

Now you have expressed some concerns over the costs involved. Which is understandable. But it should not take a great deal of you lawyer's time to file the above mentioned Rule 55.03 motion. (Fifteen minutes is my guess.) I'm sure that doing so would do as "Deputy Barney Fife" might say: "Nip it in the bud"!

Lastly, I think it is well for you to know that this "LdiJ" person with whom you have been exchanging dialogue and profusely thanking has never seen the inside of a law school, much less earned a J. D. or been admitted to practice law.

 

[not2cleverRed]

She has children with him as well if that is the case and doesn't seem to mind to try to get more out of him. And yes, it is fraud if she is misleading the court.

Heck, not only does she not mind trying to get more out of him, she apparently thinks they don't eat (not been paying cs) AND wants to uproot them from their home.

Nice. Really nice.

 

[TigerD]

You have children with her correct? Do you really want to do that to your children? I am doubting that it was truly fraud on her part, I think it seems more like ignorance, mixed with a little bad faith maybe. If she truly knew she had no case, then she would have known it would fail.

You still have to smack her down a little. If you don't train the puppy, it will keep jumping.

TD

 

[Proserpina]

You still have to smack her down a little. If you don't train the puppy, it will keep jumping.

TD

Worse, it will keep piddling on your slippers.

Kind of like some of the posters on this forum.

 

[KC_911]

Lastly, I think it is well for you to know that this "LdiJ" person with whom you have been exchanging dialogue and profusely thanking has never seen the inside of a law school, much less earned a J. D. or been admitted to practice law.

I did thank LdiJ however I think "profusely" might be an exaggeration but if not then I profusely thank you for your input as well along with the others who have chimed in. Everyone that has responded has volunteered their time and for that I am grateful. The funny thing is that while you put down LdiJ's experience you gave me the same advice he did in going after sanctions. Sanctions definitely seem to make more sense than fraud if I am interested in her staying out of jail and possibly paying future child support. Since the ex doesn't seem to have enough sense to quit filing frivolous motions after getting dinged with fees maybe her attorney will.

 

[KC_911]

After getting served for the Show Cause Order my attorney contacted her attorney a couple of times requesting that the motion be dismissed with prejudice. They did not dismiss it. About 20 days after being served we filed an Answer with the appraisal and the QCD showing she received half the equity at the time. We also included two counter claims for Abuse of Process and Malicious Prosecution. Seven days later they filed a Voluntary Dismissal ‘without’ prejudice which I believe means she can file it again if she so chooses.

Correct me if I am wrong but my understanding is that while I can’t file a motion for sanctions under MO Rule 55.03 because of the safe harbor provision, it does sound like I can still ask the court for sanctions via the inherent powers of the court or through Federal Rule 11. I might also be able to satisfy the elements for Abuse of Process and/or Malicious Prosecution.

Assuming I do have a valid claim is it likely to be worth my time and money to go after them to recoup expenses and damages?

 

[LdiJ]

After getting served for the Show Cause Order my attorney contacted her attorney a couple of times requesting that the motion be dismissed with prejudice. They did not dismiss it. About 20 days after being served we filed an Answer with the appraisal and the QCD showing she received half the equity at the time. We also included two counter claims for Abuse of Process and Malicious Prosecution. Seven days later they filed a Voluntary Dismissal ‘without’ prejudice which I believe means she can file it again if she so chooses.

Correct me if I am wrong but my understanding is that while I can’t file a motion for sanctions under MO Rule 55.03 because of the safe harbor provision, it does sound like I can still ask the court for sanctions via the inherent powers of the court or through Federal Rule 11. I might also be able to satisfy the elements for Abuse of Process and/or Malicious Prosecution.

Assuming I do have a valid claim is it likely to be worth my time and money to go after them to recoup expenses and damages?

Does she have any money? If you won damages would you be able to collect from her if she doesn't voluntarily pay? Does she have any assets you could place liens against? Odds are you would not be able to garnish her wages as the child support would likely max out the amount that can be garnished.

If you are going to do it, you need to be relatively certain that you can collect more than its going to cost you.

 

[latigo]

After getting served for the Show Cause Order my attorney contacted her attorney a couple of times requesting that the motion be dismissed with prejudice. They did not dismiss it. About 20 days after being served we filed an Answer with the appraisal and the QCD showing she received half the equity at the time. We also included two counter claims for Abuse of Process and Malicious Prosecution. Seven days later they filed a Voluntary Dismissal ‘without’ prejudice which I believe means she can file it again if she so chooses.

Correct me if I am wrong but my understanding is that while I can’t file a motion for sanctions under MO Rule 55.03 because of the safe harbor provision, it does sound like I can still ask the court for sanctions via the inherent powers of the court or through Federal Rule 11. I might also be able to satisfy the elements for Abuse of Process and/or Malicious Prosecution.

Assuming I do have a valid claim is it likely to be worth my time and money to go after them to recoup expenses and damages?

You say that you are prohibited from seeking sanctions under Rule 55.03 of the Missouri Supreme Court Rules because of a "safe harbor" provision? Would you please direct my attention to any such provision as I must have overlooked it.

FRCP Rule 11? Inherent powers?

Although Rule 55.03 is essentially comparable to Rule 11 of the Federal Rules of Civil Procedure, the latter is not applicable to any system other than the federal courts. Also to mean that if the Missouri state court were to exercise any inherent powers in this regard, it could not draw on the FRCP or any similar provisions of the United States Code of which there are several.

Regarding your mentioning that the opponent's attorney having "filed" a "Voluntary Dismissal". The act of filing is one thing, the question is did the court act favorably on it? My reason for asking is because it should not have been so ordered as a matter of course. Not after the filing of your responsive pleading and counterclaims. Not without a hearing and you make no mention of a hearing. (Probably a moot point anyway as dismissed or not it would not affect your end of the lawsuit.)

Lastly you ask whether it is worth your time and money to go forward with the counterclaims and motion for sanctions. Obviously that is a personal decision, but I would definitely be seeking reimbursement against the ex's attorney. Most of them have pockets of some depth.

As for the counterclaims, no. Not me anyway. Too much added lawyer expense to do that and little chance of collecting any judgment, which might be minimal if any.

 

[KC_911]

You say that you are prohibited from seeking sanctions under Rule 55.03 of the Missouri Supreme Court Rules because of a "safe harbor" provision? Would you please direct my attention to any such provision as I must have overlooked it.

Rule 55.03(d)(1)(A). The rule
further provides that “[t]he motion shall not be filed with or presented to the court unless, within
30 days after service of the motion, the challenged claim, defense, request, demand, objection,
contention, or argument is not withdrawn or appropriately corrected.” Id. The purpose of the
30-day safe-harbor provision “is to allow the party against whom sanctions are sought an
opportunity to correct violations of Rule 55.03(b), thereby conserving judicial resources if such
corrective action is taken.”

Regarding your mentioning that the opponent's attorney having "filed" a "Voluntary Dismissal". The act of filing is one thing, the question is did the court act favorably on it? My reason for asking is because it should not have been so ordered as a matter of course. Not after the filing of your responsive pleading and counterclaims. Not without a hearing and you make no mention of a hearing. (Probably a moot point anyway as dismissed or not it would not affect your end of the lawsuit.)

The courts made an entry on Case Net "Motion no Longer an Issue"

Lastly you ask whether it is worth your time and money to go forward with the counterclaims and motion for sanctions. Obviously that is a personal decision, but I would definitely be seeking reimbursement against the ex's attorney. Most of them have pockets of some depth.

I was informed yesterday evening that the ex's attorney has filed a Motion to Withdraw as Counsel. Not sure what impact that would have on my ability to go after sanctions to seek reimbursement.