Partition on Property with a Mortgage

[jih7171]

I can only surmize at his motiviation but he earlier demanded I refinance the property (knowing I couldn't because of the equity) because he supposedly wasn't able to get a loan for a home. He has been able to get a loan as I kept telling him.

I received a letter from his attorney and then this email from him:

Its not a bluff, I promise you that.
I'll be meeting with my attorney next week to file the partition of property suit.
Not only will you have to sale, but you'll owe my attorney fees.
Your attorney has already admitted to mine he knows he cant stop a partition so I hope you know what you're doing.
Its clear though by your history and refusal to refi so far that you truly have no idea what you're doing, but thats ok.
I know exactly what I'm doing.

I personally think this is his way of trying to control me but I cannot be certain. We have been divorced since 2008.

His parents might be willing to pay his part of the short fall but I will not be able to pay mine.

I have been in communication with the bank and they will not agree to a short sale or deed in lieu. I'd have to be behind on the payments and then financially qualify for assistance and I make too much money for that. I am hoping they might shed some light on this for me too but so far no luck.

I really appreciate your taking the time to actually consider my questions and providing some actual thoughts/feedback.

I am not stupid and am willing to accept the loss of the home if that has to be the case. I just want to understand.

 

[HomeGuru]

I can only surmize at his motiviation but he earlier demanded I refinance the property (knowing I couldn't because of the equity) because he supposedly wasn't able to get a loan for a home. He has been able to get a loan as I kept telling him.

I received a letter from his attorney and then this email from him:

Its not a bluff, I promise you that.
I'll be meeting with my attorney next week to file the partition of property suit.
Not only will you have to sale, but you'll owe my attorney fees.
Your attorney has already admitted to mine he knows he cant stop a partition so I hope you know what you're doing.
Its clear though by your history and refusal to refi so far that you truly have no idea what you're doing, but thats ok.
I know exactly what I'm doing.

I personally think this is his way of trying to control me but I cannot be certain. We have been divorced since 2008.

His parents might be willing to pay his part of the short fall but I will not be able to pay mine.

I have been in communication with the bank and they will not agree to a short sale or deed in lieu. I'd have to be behind on the payments and then financially qualify for assistance and I make too much money for that. I am hoping they might shed some light on this for me too but so far no luck.

I really appreciate your taking the time to actually consider my questions and providing some actual thoughts/feedback.

I am not stupid and am willing to accept the loss of the home if that has to be the case. I just want to understand.

**A: thanks for posting.

 

[LdiJ]

I can only surmize at his motiviation but he earlier demanded I refinance the property (knowing I couldn't because of the equity) because he supposedly wasn't able to get a loan for a home. He has been able to get a loan as I kept telling him.

I received a letter from his attorney and then this email from him:

Its not a bluff, I promise you that.
I'll be meeting with my attorney next week to file the partition of property suit.
Not only will you have to sale, but you'll owe my attorney fees.
Your attorney has already admitted to mine he knows he cant stop a partition so I hope you know what you're doing.
Its clear though by your history and refusal to refi so far that you truly have no idea what you're doing, but thats ok.
I know exactly what I'm doing.

I personally think this is his way of trying to control me but I cannot be certain. We have been divorced since 2008.

His parents might be willing to pay his part of the short fall but I will not be able to pay mine.

I have been in communication with the bank and they will not agree to a short sale or deed in lieu. I'd have to be behind on the payments and then financially qualify for assistance and I make too much money for that. I am hoping they might shed some light on this for me too but so far no luck.

I really appreciate your taking the time to actually consider my questions and providing some actual thoughts/feedback.

I am not stupid and am willing to accept the loss of the home if that has to be the case. I just want to understand.

Well, its clear that your ex doesn't understand that it is not possible to refinance a house where the mortgage is upside down. (unless you have the cash to pay the loan down) Its also clear that your ex doesn't understand that the house cannot be sold if the mortgage company will not cooperate with a short sale. Its also clear that your ex doesn't understand that a short sale, or foreclosure will have worse effect on his ability to get a loan than the fact that he is still on the mortgage.

It also sounds like your attorney isn't very clear on those issues either, and probably not his attorney either.

All you can do is go to court and explain to the judge that the mortgage is upside down so you cannot refinance...and explain to the judge that the mortgage company has already stated that they will not cooperate with a short sale...and explain to the judge that any other action (ie you stop making the mortgage payments so that they will foreclose) will simply trash both of your credit scores.

Its too bad that your ex doesn't have someone explaining to him the reality of the situation...because in the end, his credit is going to get trashed if he gets what he wants.

 

[jih7171]

If the two of you don't have the money to make up the shortfall, and the bank will not agree to a short sale or deed in lieu, the partition suit will fail.

Would you be able to clarify this statement?

 

[LdiJ]

Would you be able to clarify this statement?

The judge cannot order a mortgage company to do anything. The mortgage company isn't a party to the case. The judge can order you to sell the house, but if the mortgage company won't cooperate with a short sale the house isn't going to get sold.

 

[tranquility]

Partition tends to be a suit at equity. What is fair. It's hard to determine what a judge will do when the suit is at equity. I do know the judge will say the mortgage holder is a necessary party and the plaintiff will have a mandatory joinder of them.

To the OP, what is fair?

That's what the court will determine. If you both own the house, but you are the only one staying there, I think the fair result, the equitable one, is not going to help you in any way. What will the court's remedies be?

How is the mortgage getting paid now? Can someone be garnished for more? Can something be seized? You'd be surprised how hard a court can squeeze.

 

[LdiJ]

Partition tends to be a suit at equity. What is fair. It's hard to determine what a judge will do when the suit is at equity. I do know the judge will say the mortgage holder is a necessary party and the plaintiff will have a mandatory joinder of them.

To the OP, what is fair?

That's what the court will determine. If you both own the house, but you are the only one staying there, I think the fair result, the equitable one, is not going to help you in any way. What will the court's remedies be?

How is the mortgage getting paid now? Can someone be garnished for more? Can something be seized? You'd be surprised how hard a court can squeeze.

Tranq, I am a little confused by your responses on this particular thread. The OP's ex wants his name off the house so that he has credit to get a loan.

Its not going to happen no matter what the judge orders. There is no way that they are getting rid of that house without tanking their credit...based on the facts stated in this thread. The OP also cannot refinance an upside down mortgage.

OP also stated that the mortgage payments are not behind. Therefore why do you believe the possibility exists that someone would be garnished for something or have assets seized for something?

 

[tranquility]

Tranq, I am a little confused by your responses on this particular thread. The OP's ex wants his name off the house so that he has credit to get a loan.

I agree.

Its not going to happen no matter what the judge orders

When the holder of the mortgage becomes a defendant in a suit, all sorts of things can be ordered by the judge in equity. I have no idea of the actual wealth or cash flow of the OP and the other so won't even try to formulate a remedy. But, the same thing can happen here as can happen in a foreclosure. Do we have upside down foreclosures? What happens then? Here we are not operating under law, but under equity, so the results may not be the same in our case.

There is no way that they are getting rid of that house without tanking their credit...based on the facts stated in this thread.

I agree. All on the note will have a foreclosure on their credit along with whatever remedies the court fashioned.

The OP also cannot refinance an upside down mortgage.

That is why she's got a problem. The house should have been sold long ago.

OP also stated that the mortgage payments are not behind.

I'm wondering who's paying those payments?

Therefore why do you believe the possibility exists that someone would be garnished for something or have assets seized for something?

Because people tend to have an absolute right to partition. (Absent prior agreement, as in a partnership owning property.) Since the property is probably not divisible, sale is the statutory result of a partition lawsuit if the parties cannot work something out. Because they can't work things out, the court can order the sale, but does not have the power to cram down the loss on the loan.

The court is free to fashion a remedy to solve this problem. That's why.