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Florida - Quitclaim deed, mortgage ill ex-spouse

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bmo1963

New member
Florida-

I signed a quitclaim deed during a divorce 10 years ago. My ex-spouse lives in the house but has not refinanced, so I am still on the mortgage. She has fallen ill. Should she pass, what are my options as far as this house is concerned? I don't want to pay any on the mortgage.
 


LdiJ

Senior Member
Florida-

I signed a quitclaim deed during a divorce 10 years ago. My ex-spouse lives in the house but has not refinanced, so I am still on the mortgage. She has fallen ill. Should she pass, what are my options as far as this house is concerned? I don't want to pay any on the mortgage.
That is a problem. You no longer have any ownership interest in the house due to the quit claim deed, yet you are still legally responsible for the mortgage, and will remain so until somebody refinances it into their name, or her estate sells it.
 

Litigator22

Active Member
Florida- I signed a quitclaim deed during a divorce 10 years ago. My ex-spouse lives in the house but has not refinanced, so I am still on the mortgage. She has fallen ill. Should she pass, what are my options as far as this house is concerned? I don't want to pay any on the mortgage.
First some questions.

Does the decree expressly order your ex-wife to assume the mortgage lien and hold you harmless of further liability?

Is there any language in the QCD to the effect that releasing unto her your vested ownership in the house is made subject to her full assumption of the mortgage note and indemnifying you of further liability?

Does the decree require her to refinance the mortgage in her sole name? (Your use of the conjunction in " . . . but has not refinanced " vaguely suggest it is so.)

The reason I am prying is to determine whether or not you'd have a claim against her estate should she pass before the mortgage note is paid the lien released.


(FWIW the reason Ldij is not prying of such is because she not being an attorney she couldn't possibly have learned that people don't go to lawyers to be told what they can't do. And the truth is that there are lawyers that have shown that they can do what other lawyers have told them they can't do.)
 

not2cleverRed

Obvious Observer
First some questions.

Does the decree expressly order your ex-wife to assume the mortgage lien and hold you harmless of further liability?

Is there any language in the QCD to the effect that releasing unto her your vested ownership in the house is made subject to her full assumption of the mortgage note and indemnifying you of further liability?

Does the decree require her to refinance the mortgage in her sole name? (Your use of the conjunction in " . . . but has not refinanced " vaguely suggest it is so.)

The reason I am prying is to determine whether or not you'd have a claim against her estate should she pass before the mortgage note is paid the lien released.


(FWIW the reason Ldij is not prying of such is because she not being an attorney she couldn't possibly have learned that people don't go to lawyers to be told what they can't do. And the truth is that there are lawyers that have shown that they can do what other lawyers have told them they can't do.)
No. The reason why Ldij "is not prying" is because she has read variations of bmo's plight throughout this subforum.

The clauses you refer to are fairly standard in divorce decrees, and reasonable people comply with such clauses.

However, when people don't comply, the bank does not care what the divorce decree states - the bank only cares about whose name is on the mortgage.

Bmo can try taking the ex to court ask that she be found in contempt - even if there was no explicit deadline for refinancing in the decree, just requiring it be done in a "reasonable" amount of time (<- vague = stupid, but let's save that for another rant), most people would think that 10 years is a more than reasonable amount of time to wait to become financially free from the former ball-and-chain. An actual hard deadline to refi or sell would be a good thing to pursue.

On the one hand, it might seem mean-spirited of bmo to take the ex to court while she is potentially terminally ill. On the other hand, there is the distinct possibility that as her health deteriorates, there will be more creditors. I doubt, if she has a will, that she's leaving the house to bmo (not that it matters if the state has a lien on it); if they were that amicable, bmo wouldn't be in this pickle. And if she doesn't have a will, well, intestate succession laws don't benefit ex-spouses.

Bmo needs to take action yesterday, and scrape up the $ to retain competent legal council.
 
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FlyingRon

Senior Member
There's no such thing as "conditional language" in a quitclaim deed. If you want to make the transfer conditional you have to withhold the deed until the conditions are met or use a third-party intermediary.
 

Litigator22

Active Member
There's no such thing as "conditional language" in a quitclaim deed. If you want to make the transfer conditional you have to withhold the deed until the conditions are met or use a third-party intermediary.
So you don't think much of a "conditional' quitclaim deed. (Maybe its just semantics or whatever.)

Anyway let's suppose that the quitclaim deed were to contain language much as follows:

Upon the delivery and acceptance of the within document and the recording thereof the above named grantee thereby agrees to fully assume the mortgage note and lien in favor of ________________, dated ____ recorded on the ___ day of _________ at _______ as Instrument No. _____ and to thereafter wholly indemnify and hold the grantor, his successors, heirs and assigns harmless from further liability on said mortgage note and lien.

OR simply contains a clause whereby the grantee agrees to assume and hold harmless with a signature line and a jurat?

You certainly won't dispute that a warranty or grant deed can be made subject to the grantee's assumption of existing liens and thereby indemnifying the grantor with no signature or written acknowledgement and acceptance on the part of the grantee required.

So please explain why not in the case of a quitclaim deed? Why wouldn't such a clause be enforceable against the grantee? Would the advent of the grantee's death extinguish the obligation or not? If not, how is it to be treated in the administration of the grantee's estate? Do the grantee's heirs and successors take the property free of the obligation to indemnify? Or do they take subject? Such as a "condition" to their taking"?
 

Zigner

Senior Member, Non-Attorney
Upon the delivery and acceptance of the within document and the recording thereof the above named grantee thereby agrees to fully assume the mortgage note and lien in favor of ________________, dated ____ recorded on the ___ day of _________ at _______ as Instrument No. _____ and to thereafter wholly indemnify and hold the grantor, his successors, heirs and assigns harmless from further liability on said mortgage note and lien.
Such language would not be included on the quitclaim document itself. Even if it were included on the quitclaim document, it would not change the OP's mortgage obligation. Lastly, even if the OP were to somehow have a claim against the estate in the future, he would still be obligated on the mortgage. The OP wants to not be obligated on the mortgage, and short of a refi or sale, that just ain't gonna happen.
 

not2cleverRed

Obvious Observer
So you don't think much of a "conditional' quitclaim deed. (Maybe its just semantics or whatever.)

Anyway let's suppose that the quitclaim deed were to contain language much as follows:

Upon the delivery and acceptance of the within document and the recording thereof the above named grantee thereby agrees to fully assume the mortgage note and lien in favor of ________________, dated ____ recorded on the ___ day of _________ at _______ as Instrument No. _____ and to thereafter wholly indemnify and hold the grantor, his successors, heirs and assigns harmless from further liability on said mortgage note and lien.

OR simply contains a clause whereby the grantee agrees to assume and hold harmless with a signature line and a jurat?

You certainly won't dispute that a warranty or grant deed can be made subject to the grantee's assumption of existing liens and thereby indemnifying the grantor with no signature or written acknowledgement and acceptance on the part of the grantee required.

So please explain why not in the case of a quitclaim deed? Why wouldn't such a clause be enforceable against the grantee? Would the advent of the grantee's death extinguish the obligation or not? If not, how is it to be treated in the administration of the grantee's estate? Do the grantee's heirs and successors take the property free of the obligation to indemnify? Or do they take subject? Such as a "condition" to their taking"?
How quaint.

The horse has left the barn, so stop hypothesizing how to beat it.

Divorce lawyers, for whatever reason, don't do this - otherwise we wouldn't have so many threads like this. I suppose they want to wash their hands of their clients when the divorce is finalized, and not hang around as third parties.

It is more common to include some language in the decree requiring the party keeping the property to assume the mortgage, etc.

And, if someone wants to be a [insert insult], and they know their ex is unlikely to fight, they can ignore such orders in the decree. After all, the only way a [insert insult] is going to get in trouble is if their ex takes them to court. Some people are too worn out financially and emotionally to take their [insert insult] ex back to court to demand that the terms of the divorce decree be enforced.

OP can wait for the ex to die and try dealing with the estate.

Because it is very possible that a lien could be placed on OP's ex's estate to pay for end of life care, OP should be very concerned. Again, if the mortgage isn't paid, the bank is going to go after OP.

OP needs to act NOW.

:p
 
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Litigator22

Active Member
Such language would not be included on the quitclaim document itself. Even if it were included on the quitclaim document, it would not change the OP's mortgage obligation. Lastly, even if the OP were to somehow have a claim against the estate in the future, he would still be obligated on the mortgage. The OP wants to not be obligated on the mortgage, and short of a refi or sale, that just ain't gonna happen.
I'm not meaning to be facetious, but you seem to be wavering a bit on this quitclaim issue. Are you saying that it is okay for one co-owner of real property to be bound to his or her promise to save and hold another co-owner harmless as to existing liens and encumbrances in exchange for the promisee's releasing all of his or her right, title and interest in the subject property? Or that such an undertaking cannot be a part of a "quitclaim deed"?

As to the mortgage business. No one seems to be claiming that the OP has been released from the mortgage; which includes the OP who has asked of his options with respect to the "house".

So, what are the OP's option should the ex-wife should die while the OP remains obligated on the mortgage?

I think it depends on whether or not the ex-wife is someway legally bound to indemnify him of that obligation - either by way of decree or otherwise. But it doesn't seem to be gathering much attention. Including that of the OP.

With all respect, as usual.

L22
 

not2cleverRed

Obvious Observer
I'm not meaning to be facetious, but you seem to be wavering a bit on this quitclaim issue. Are you saying that it is okay for one co-owner of real property to be bound to his or her promise to save and hold another co-owner harmless as to existing liens and encumbrances in exchange for the promisee's releasing all of his or her right, title and interest in the subject property? Or that such an undertaking cannot be a part of a "quitclaim deed"?
No. What Zigner is saying is that's the reality of what happens when one party is an [insert insult], doesn't abide by the terms of a divorce decree, and the other party doesn't take the [insert insult] back to court and lets the issue languish for 10 years.

About the only thing that's easily enforceable in divorce is child support, thanks to state child support bureaus. And there are still plenty of deadbeat parents.

As to the mortgage business. No one seems to be claiming that the OP has been released from the mortgage; which includes the OP who has asked of his options with respect to the "house".
The entire point is OP doesn't want to "pay any on the mortgage".

OP is not interested in regaining title to the property; it's been all about the mortgage from the start.

So, what are the OP's option should the ex-wife should die while the OP remains obligated on the mortgage?

I think it depends on whether or not the ex-wife is someway legally bound to indemnify him of that obligation - either by way of decree or otherwise. But it doesn't seem to be gathering much attention. Including that of the OP.

With all respect, as usual.

L22
GAH! Stick to foreclosures. It is pretty standard in divorce law to include such language in the divorce decree. The issue is that OP didn't take his ex back to court to get it enforced.
 
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Zigner

Senior Member, Non-Attorney
I think it depends on whether or not the ex-wife is someway legally bound to indemnify him of that obligation - either by way of decree or otherwise. But it doesn't seem to be gathering much attention. Including that of the OP.
Indemnification is only as good as the money behind the person so obligated.
 

LdiJ

Senior Member
I'm not meaning to be facetious, but you seem to be wavering a bit on this quitclaim issue. Are you saying that it is okay for one co-owner of real property to be bound to his or her promise to save and hold another co-owner harmless as to existing liens and encumbrances in exchange for the promisee's releasing all of his or her right, title and interest in the subject property? Or that such an undertaking cannot be a part of a "quitclaim deed"?

As to the mortgage business. No one seems to be claiming that the OP has been released from the mortgage; which includes the OP who has asked of his options with respect to the "house".

So, what are the OP's option should the ex-wife should die while the OP remains obligated on the mortgage?

I think it depends on whether or not the ex-wife is someway legally bound to indemnify him of that obligation - either by way of decree or otherwise. But it doesn't seem to be gathering much attention. Including that of the OP.

With all respect, as usual.

L22
Despite that rhetoric it boils down to the same thing that everyone has said. He is responsible for the mortgage until the house is sold or a refi happens. The mortgage company is not and never will be bound to the terms of any divorce decree. His potential legal solutions would revolve around trying to force one of those things to happen.
 

Litigator22

Active Member
Indemnification is only as good as the money behind the person so obligated.
Very keen observation, Z. But are these questions as readily answerable:

Does the duty to indemnify survive the death of the indemnitor? If it survives, how is it treated in the administration of the indemnitor's estate? What are the rights of the indemnitee, if any?

It seems to me that if we assume that the ex-wife is bound to save and hold the OP harmless on the mortgage lien and she should die while the lien is in place, that the probate court would act favorably upon the OP's petition and order that the house be sold during probate and proceeds directed at retiring the lien.

Its suppositional of course as we don't know if an indemnity is present, but if it is, I don't see any other practical means of protecting the OP's interests. As it would be impractical and seemingly beyond the authority of the court to saddle the ex-wife's heirs and devisees with that inchoate obligation.

Also in such instances wiser heads might have acted in securing a recordable inchoate second lien from the ex-wife before delivering up a quitclaim deed.

Anyway, the OP's predicament should serve as a lesson to others likely situated in a failed marriage not to be so eager to part with their ownership of marital property held subject to a lien upon which they are personally obligated.
 

FlyingRon

Senior Member
If a person has a claim against the deceased, then they need to make sure the claim is made against the estate in probate.

Again, you can argue coulda/shoulda whatever. And arguing about what happens to estates for people who are not yet dead is pointless.
 

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