Help .. I don't know what to do

[ronaldy]

Hello everyone, my name is Ron and I have a little problem that I would like to discuss here. OK, I am in dire need of filing for bankruptcy. My bills overdue, I got numerous delinquent accts, and my car just got repossessed yesterday. I have one problem with filing for bankruptcy. I am still on a mortgage loan with my ex-wife. I actually have quite a bit of equity built up in the house, and if i can cash out my half of the equity I won't even have to file for bankruptcy. The thing is my ex does not want to re finance the loan into her name, she is not working with me at all. She has the means to refinance the home but she is just being difficult. So my questions is how do I "force" her into refinancing the home and having my name removed from the account. I haven't lived in this house for 4 years and as far as I know she is up to date on the house. what are my options here? can i file a bankruptcy in california being a homeowner? If i file bankruptcy what will the courts do to that mortgage account? will they force her to refinance the house? will she be included in the bankruptcy because her name is on the account? I believe there's close to $100,000 of equity built up in the house. I don't know what to do. Please help

[justbroke]

You can force her by filing Bankruptcy. That would certainly change her tune as the Trustee attempts to claw at the equity which is yours. The Trustee would probably seek to sell the property. Your ex-spouse would be compelled to refinance with a cash out and pay the Trustee your share, or to allow the Trustee to sell the property and distribute what's left based on her share of any equity that is recovered from the sale.

In either case, the home would no longer be in your name. By the way, how does your final divorce decree treat the property? I assume that it awarded it to her, and she was instructed to refinance the note to remove your name. However, are you liable for the payments at all or was this some sort of compromise where you gave her the home and right to live in it, but you retained the equity as of the separation/dissolution?

She would be a "co-debtor" in your Bankruptcy since there is at least one debt which you are both liable for. However, she is not a filing spouse (known as a debtor-spouse).

[despritfreya]

1) If you file bk you will not be able to use the CA homestead exemption under 704 as this is not your home.
2) If you file bk you should be able to use the CA wildcard exemption under 703 up to $23,250.
3) If you file a bk you may be able to force the sale or refinance (more likely sale under 11 USC 363(h)) of the property so that your creditors can get to the non exempt portion. This can be done in a Chapter 7, 11 or 13.

Or,

If the divorce decree orders the sale or refinance, go back to the DR court and enforce the decree. If you are able to do this then get your $$$ live off of the $$$, possibly settle with creditors and, if necessary, file bk sometime in the future.

Des.

[mountanddo]

You would think that she would want to buy you out of the house and re-finance in her name, as you said she has more than enough money to do that, rather than have to BK court pull it out from under her. Either way someone gets the money. Divorced spouses don't alway's do things for the ex that is in the exes best interest, go figure ;) You say she is being difficult about this. Is it because it is a personal vegenance against you or is difficult just her personality?

[ronaldy]

My divorce decree says that the house was to be sold and the profit split between me and her. This was back in July of 2007 when this was ordered. She kept stalling by saying she wasn't ready to move and because my children were there with her I didnt push the issue either. But now this is just ridiculous and she needs to do something about the house, at least buy me out. I just can't figure out how to force her to do that, since she won't do it voluntarily. What can I tell her will happen to her and the house once I file for bankruptcy. Maybe I can scare her into refinancing.

[keepmine]

I'd follow Des's advice. Go back to the court that granted your divorce and force the sale.

[justbroke]

The bankruptcy might force the sale too. I guess it's a question of whether you want to do this in two separate courts? The bankruptcy court might be easier, but I'd ask Des about that.

[despritfreya]

The bankruptcy might force the sale too. I guess it's a question of whether you want to do this in two separate courts? The bankruptcy court might be easier, but I'd ask Des about that.

Will the bk court be "easier"? If you file a 7 it will depend upon how aggressive the Trustee is. I handled a case years ago where we wanted a specific Trustee as we knew the attny the Trustee would hire would go to the ends of the earth to get at the property. We lucked out. Trustee, through this attny, seized all of the "community" assets held by the estranged (soon to be ex) spouse and sold everything, Paid all of the community taxes with the proceeds. Worked like a charm.

But, in OP's situation, if he can get the DR Court to force the sale and split the proceeds (maybe surcharging the ex's portion as a sanction), OP may be able to avoid the bk since he will not have to share the proceeds with a Trustee. As a result, I might look at that option 1st.

Des.

[ronaldy]

Great info everyone thank you. Well this is where I'm at as of today, I contacted my ex-wife's father, who was our co-signer on the mortgage loan. I think I got through to him as to how much hassle it would cost him and his daughter to not re-finance the loan, take my name off the loan, and pay me out what I'm due from the equity. I hope he understands that it's a lose lose situation for him and his daughter if I go ahead and file for bk, and bring that account with their name on it, into the bk with me. All they have to do is walk into the bank with me, apply for the refinance loan, and then pay me out. Is that really that hard to do? If i can get paid out I won't even have to file bk. I hope he can get thru to his daughter, my ex. Does anyone know how a family law or divorce court can "force" her to sell the house since that's what was ordered on the divorce decree? I mean will the court take it upon themselves to put the house on the market? How does that work? Cuz they can tell my ex all they want, but if she doesn't go and actually list the house as being "for sale" then what can they really do to her?

Again, everyone thanks for all the info so far

[despritfreya]

Does anyone know how a family law or divorce court can "force" her to sell the house since that's what was ordered on the divorce decree? I mean will the court take it upon themselves to put the house on the market? How does that work? Cuz they can tell my ex all they want, but if she doesn't go and actually list the house as being "for sale" then what can they really do to her?

I am not a DR attny but what I have seen is the seeking of contempt for failure to abide by the Order. The Judge may then appoint a "special master" to take control of the property for the purpose of marketing and selling it. This, at least, is what I have come across.

Des.

[LadyInTheRed]

I don't have any experience in the divorce court. But, I do know about a case in the probate court where a trustee of a trust would not cooperate with his co trustee to sale real estate owned by the trust, even after he was ordered to cooperate. The court eventually issued an order that one co-trustee was authorized to execute sale documents where both trustees' signatures would normally be required. That order was recorded with the county recorder to prove that only one of their signatures was necessary on the deed to the buyer. The non-cooperating trustee had to pay the other trustee's attorney fees. If that will fly in a divorce court (give you the power to sell), it might be cheaper than if a special master had to be involved.

Of course, Dad talking her into refinancing would be the best solution for everybody.