Force Sale of Home or Allow Foreclosure?

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I really would appreciate your advice.  Yes, I have an attorney, my divorce is almost final.  The ex has remained in the home.  I am no longer living in the home (not contributing to the mortgage, since I now have rent to pay) and I need my name off the mortgage.  Even though a sale may only barely profit, I'm less interested in any profit and just desire to move forward with my life (completely disconnected from him) and some of my credit in tact for when I need it.  Although the home was listed, my BPDexH was uncooperative with the realtor and has now completely denied potential buyers access to the home.  He is also threatening to let it go into foreclosure and blaming me for not having any money .  I have a solid career, but cannot afford that mortgage and do not want that home even if it were an option, which it's not.  He collects workman's compensation for a couple years now and does not report his cash earnings from other employment.  I'm not sure what to expect on my end from a foreclosure or if my attorney forces the sale.  A "force" of any kind will only make my ex push back and I'm kind of just looking to understand where things may go in either direction and prepare myself.

Would you say that I should look forward to my attorney motioning to force the sale once the divorce is final?

[Hope0807]

I really would appreciate your advice.  Yes, I have an attorney, my divorce is almost final.  The ex has remained in the home.  I am no longer living in the home (not contributing to the mortgage, since I now have rent to pay) and I need my name off the mortgage.  Even though a sale may only barely profit, I'm less interested in any profit and just desire to move forward with my life (completely disconnected from him) and some of my credit in tact for when I need it.  Although the home was listed, my BPDexH was uncooperative with the realtor and has now completely denied potential buyers access to the home.  He is also threatening to let it go into foreclosure and blaming me for not having any money .  I have a solid career, but cannot afford that mortgage and do not want that home even if it were an option, which it's not.  He collects workman's compensation for a couple years now and does not report his cash earnings from other employment.  I'm not sure what to expect on my end from a foreclosure or if my attorney forces the sale.  A "force" of any kind will only make my ex push back and I'm kind of just looking to understand where things may go in either direction and prepare myself.

Would you say that I should look forward to my attorney motioning to force the sale once the divorce is final?

[ForeverDad]

I'm not sure what to expect on my end from a foreclosure or if my attorney forces the sale.  A "force" of any kind will only make my ex push back and I'm kind of just looking to understand where things may go in either direction and prepare myself.

Would you say that I should look forward to my attorney motioning to force the sale once the divorce is final?

We understand, an overreaction is typical of a person with BPD.  Search here about "extinction burst".  It's when a boundary is set, even by a real authority (the court), that the pwBPD reaction is to push back, try to weaken the new boundary.  Or failing that, delay it.

It's clear the house will have to be sold or foreclosed at some point.  Your ex will try to delay that as long as possible of course.  Is he keeping the mortgage payment up to date?  It should not be okay for him to destroy your credit, but court is often reluctant to force good behavior, not until a few times in court convinces them otherwise.  Is there a court order for it to be sold?  It's clear he will continue obstructing a sale, sounds like you need to get a court order to require him to vacate so you can allow the house to be shown and sold.  The court won't do anything without cause, so document his obstruction of showings as basis for him to vacate before a sale is final.  Try to get consequences included with the order, an order by itself does not ensure compliance.  One of our members didn't have consequences included in her order and it took a few times back in court to finally get the house her ex was living in sold, it took somewhere between one and two years.

I'm not a lawyer but I would think if the case is still in process then the court may not see reason for a sale before the divorce is final unless he's behind in payments.

[Hope0807]

Thanks ForeverDad,

Payments have been made late the past few months I've been out, but paid nonetheless.  September is not paid, and since he's emailed that he can't afford it (not true) and will let the bank take it, I believe that's what he may likely due.  Your advice here is excellent and very much appreciated!

I'm going to go look up "extinction burst" right now.

I'm not sure what to expect on my end from a foreclosure or if my attorney forces the sale.  A "force" of any kind will only make my ex push back and I'm kind of just looking to understand where things may go in either direction and prepare myself.

Would you say that I should look forward to my attorney motioning to force the sale once the divorce is final?

We understand, an overreaction is typical of a person with BPD.  Search here about "extinction burst".  It's when a boundary is set, even by a real authority (the court), that the pwBPD reaction is to push back, try to weaken the new boundary.  Or failing that, delay it.

It's clear the house will have to be sold or foreclosed at some point.  Your ex will try to delay that as long as possible of course.  Is he keeping the mortgage payment up to date?  It should not be okay for him to destroy your credit, but court is often reluctant to force good behavior, not until a few times in court convinces them otherwise.  Is there a court order for it to be sold?  It's clear he will continue obstructing a sale, sounds like you need to get a court order to require him to vacate so you can allow the house to be shown and sold.  The court won't do anything without cause, so document his obstruction of showings as basis for him to vacate before a sale is final.  Try to get consequences included with the order, an order by itself does not ensure compliance.  One of our members didn't have consequences included in her order and it took a few times back in court to finally get the house her ex was living in sold, it took somewhere between one and two years.

I'm not a lawyer but I would think if the case is still in process then the court may not see reason for a sale before the divorce is final unless he's behind in payments.

[ForeverDad]

September is not paid, and since he's emailed that he can't afford it (not true) and will let the bank take it, I believe that's what he may likely do.

A lot depends on how quickly or slowly the bank takes action.  Can you discuss with the bank what their policy is when a mortgage payments stop?  In recent years during the real estate downturn they may have done nothing for many months.  An entitled pwBPD would milk that inaction as long as possible to have a free place to stay even if that ruined credit.  Or perhaps your lawyer may advise you not to wait on the bank but be aware the court process takes time and he may be allowed to delay the case, have it continued or fail to do as the court ordered again and again before it realizes he's really not listening.

[casper324]

Welcome to my nightmare... .I am in NJ so laws vary from State to State.  To get your name off the Mortgage you could do a Quick Claim Deed giving him the property, problem is he has to be able to refinance the Mortgage and if he's unemployed that probably can't happen.  If you have  close to nothing in equity I would look into Deed in Lieu of Foreclosure, still not great for credit but better then foreclosure.  Just give the house back to the bank vs having him drag things out so that there is NO equity left by the time it sells.  Remember a short sale is charged against you as income.  In my case to close on the mortgage to sell, the late fees, past due mortgage and Mortgage company provided insurance and principal balance have created a Short Sale scenario meaning offers we are getting are 60G less then it would cost us to be able to walk away.  So IF we sell, I am looking at 30G in "income" for a mess he created.  A big problem with the  DIL is he has to sign the papers as well, chances are he will fight you on that since after all he is now living for free and can for almost over 2 years in some States.    Now you can force him if you have enough examples of him obstructing any sale but that will cost you, in my case the Motion cost me 1200.00 (actually I was awarded attorney fees on this part but lets see if he pays).  This motion gives me POA if he does not respond to a sale contract within 3 days.   I am in the mist of enforcing my rights according to the Motion, lets see if I get in trouble for not filing a motion to enforce the motion.     Honestly I am sick of the Courts, what he is allowed to get away with and how in control he still is... .

[ForeverDad]

So the end result needs to be that the house is refinanced or sold (if you are co-owner you can provide the quit claim deed at the closing).  However, if neither has happened by the end of the divorce then you need to include in the final decree strict terms to get the court's authority for: exclusive possession if he fails to resolve it, have him vacate, you sell or dispose of the property, costs are paid and you two split profits if any.  It is nearly impossible to do all that if he is in the house obstructing.

As our members have found out the hard way, always include consequences in an order if at all possible.  For example, short version, "Ex will refinance the house within 90 days or sell the house within 150 days of the final decree.  (Insert details on which selling or past due expenses can be deducted before the proceeds are split between the parties.)  Both parties must sign normal forms required to accomplish a refinance or sale.  Neither party will obstruct listing the house nor showing the house nor having the closing.  If it is not sold or refinanced within the stated time periods, 'Me' will return to court and court will grant exclusive possession of the home to 'Me' for the purpose of having it sold and proceeds, if any, handled as above.  Ex will not obstruct or delay the court process and will vacate the premises within 30 days of said court order or face eviction by 'Me' who Ex must not obstruct."  It sounds like overkill but believe me the court can still allow ridiculous delays, this is largely to ensure the court knows what the expected and stated consequences are and that it doesn't have to figure out what to do next.

But never ever hand over a quit claim deed if you're still listed on the mortgage.  You would then not own the property and yet still be liable for the loan obligations.  Don't be fooled by a court order that relieves you of responsibility for the mortgage, lenders apparently can ignore such orders.

[AlonelyOne]

If you're willing to take a loss on the house. Then you might want to express letting the ex retain it, on the condition payments are made timely. (Thus at least preserving your credit rating.)

He may suddenly have motivation to make payments, if he knows he's going to get to keep the house.

[AlonelyOne]

I'm facing a slightly different housing dilemma. I am endeavoring to keep the house. I'd like to re-finance it, and consolidate all of our debts. The problem stems from the "actual value" of the house, versus "appraised value" for re-financing.

In this case, the house due to it's need for a lot of work.  Likely would sell for about $30,000 less than I could get my bank to appraise for refinancing. So the bind I get put in, is either paying more than the house would sell for, or not being able to refinance with enough clear off the debts as well.

:-|

Anyone face similar scenario? What worked?

[Hope0807]

Thank you all SO MUCH!  

ForeverDad,

Refinancing is out since he's collecting comp. and doesn't report other earnings.  Will get on the terms, "consequences" etc you suggested and feeling grateful for the ones that my attorney has already put in place about making him responsible.  Yes, he is obstructing, and each time I thought there was a hint of compliance…he obstructs again.  I now expect it regularly.

Casper,

Correct, my name cannot come off because he doesn't qualify for a refinance on his own.  Will definitely look into Deed in Lieu of Foreclosure.  Thank you!

AlonelyOne,

At one point my ex did suggest making payments, but his income is highly unreliable and his mood is completely unstable.  

So the end result needs to be that the house is refinanced or sold (if you are co-owner you can provide the quit claim deed at the closing).  However, if neither has happened by the end of the divorce then you need to include in the final decree strict terms to get the court's authority for: exclusive possession if he fails to resolve it, have him vacate, you sell or dispose of the property, costs are paid and you two split profits if any.  It is nearly impossible to do all that if he is in the house obstructing.

As our members have found out the hard way, always include consequences in an order if at all possible.  For example, short version, "Ex will refinance the house within 90 days or sell the house within 150 days of the final decree.  (Insert details on which selling or past due expenses can be deducted before the proceeds are split between the parties.)  Both parties must sign normal forms required to accomplish a refinance or sale.  Neither party will obstruct listing the house nor showing the house nor having the closing.  If it is not sold or refinanced within the stated time periods, 'Me' will return to court and court will grant exclusive possession of the home to 'Me' for the purpose of having it sold and proceeds, if any, handled as above.  Ex will not obstruct or delay the court process and will vacate the premises within 30 days of said court order or face eviction by 'Me' who Ex must not obstruct."  It sounds like overkill but believe me the court can still allow ridiculous delays, this is largely to ensure the court knows what the expected and stated consequences are and that it doesn't have to figure out what to do next.

But never ever hand over a quit claim deed if you're still listed on the mortgage.  You would then not own the property and yet still be liable for the loan obligations.  :)on't be fooled by a court order that relieves you of responsibility for the mortgage, lenders apparently can ignore such orders.

Welcome to my nightmare... .I am in NJ so laws vary from State to State.  To get your name off the Mortgage you could do a Quick Claim Deed giving him the property, problem is he has to be able to refinance the Mortgage and if he's unemployed that probably can't happen.  If you have  close to nothing in equity I would look into Deed in Lieu of Foreclosure, still not great for credit but better then foreclosure.  Just give the house back to the bank vs having him drag things out so that there is NO equity left by the time it sells.  Remember a short sale is charged against you as income.  In my case to close on the mortgage to sell, the late fees, past due mortgage and Mortgage company provided insurance and principal balance have created a Short Sale scenario meaning offers we are getting are 60G less then it would cost us to be able to walk away.  So IF we sell, I am looking at 30G in "income" for a mess he created.  A big problem with the  :)IL is he has to sign the papers as well, chances are he will fight you on that since after all he is now living for free and can for almost over 2 years in some States.    Now you can force him if you have enough examples of him obstructing any sale but that will cost you, in my case the Motion cost me 1200.00 (actually I was awarded attorney fees on this part but lets see if he pays).  This motion gives me POA if he does not respond to a sale contract within 3 days.   I am in the mist of enforcing my rights according to the Motion, lets see if I get in trouble for not filing a motion to enforce the motion.    Honestly I am sick of the Courts, what he is allowed to get away with and how in control he still is... .

If you're willing to take a loss on the house. Then you might want to express letting the ex retain it, on the condition payments are made timely. (Thus at least preserving your credit rating.)

He may suddenly have motivation to make payments, if he knows he's going to get to keep the house.

[ForeverDad]

I phrased my example as though he currently had possession/residence there and insisted he would sell the house.  Obviously, if he has demonstrated he's not a serious or motivated seller, then you need to go to court, state your case why you need exclusion possession for the purpose of preparation (he may leave it a mess or stripped) and selling of house.  And put a time frame in there and consequences or else the court will allow him additional multiple delays while declining to figure out a consequence.  If the time frame and consequence are already set, then the court will be less likely to ignore what was previously agreed/ordered because it is written.

[Hope0807]

What wonderful advice!  I've been busy researching regarding what you've all posted.  Here's the update:

Background:  I've been out of the home since Mayish and we signed a 6-month listing contract in July with a realtor.  My ex was uncooperative after that.  A Quit Claim Deed is not an option, the ex is not reporting his income and cannot refinance on his own to fully get my name removed from the mortgage.  A few weeks back he sent a largely irrational reply to an email I sent questioning the house issue and he essentially said that he will not be forced out and will move and/or sell/list when he's good and ready.    Then my lawyer informed me just days ago that my divorce is being pushed from being finalized in October... .to December now.  Ugh!  This delay made me very nervous because I saw that my ex deposited his massive annuity (I waived my right to it, in exchange for him waiving his right to alimony and my pension) into the bank.  I'm not exactly sure why seeing him gain access to his annuity worried me.  I've never seen that much money in the bank (all his) and it's kind of crazy that he seems to have taken the entire lump sum and I know there has to be taxes and penalties associated with that.  I trust the waiver I signed and divorce documents will protect me from those fees and/or taxes.

Next, I was alerted to a social media post that he made about him moving this November.  I sent another email (without revealing my knowledge of that post) and inquired again (one simple sentence) about the house.  He responded quite rationally this time and simply said he promises he will have it listed again by Nov. 15th.  I thanked him for his reply and tried to gauge whether he intends to be abandoning the home and mortgage payments or what.  I'll see if he replies.

This is exhausting and disturbing on so many levels.  Again, thank you all!

[ForeverDad]

Then my lawyer informed me just days ago that my divorce is being pushed from being finalized in October... .to December now.  Ugh!  This delay made me very nervous because I saw that my ex deposited his massive annuity (I waived my right to it, in exchange for him waiving his right to alimony and my pension) into the bank.  I'm not exactly sure why seeing him gain access to his annuity worried me.  I've never seen that much money in the bank (all his) and it's kind of crazy that he seems to have taken the entire lump sum and I know there has to be taxes and penalties associated with that.  I trust the waiver I signed and divorce documents will protect me from those fees and/or taxes.

... .whether he intends to be abandoning the home and mortgage payments or what.  I'll see if he replies.

One thing you can be sure about - he will not have any concern for your best interests.

And yes, you are right not to share information with him that you have an inkling of his plans.  You never know if what you share might be used against you.  Be aware and beware.

It would be best to get a legal opinion, perhaps from a qualified accountant familiar with tax laws and family law in your state to determine whether you have any legal exposure or what to beware of so that he doesn't create added risks in the months to come.

[Hope0807]

Agreed!

Then my lawyer informed me just days ago that my divorce is being pushed from being finalized in October... .to December now.  Ugh!  This delay made me very nervous because I saw that my ex deposited his massive annuity (I waived my right to it, in exchange for him waiving his right to alimony and my pension) into the bank.  I'm not exactly sure why seeing him gain access to his annuity worried me.  I've never seen that much money in the bank (all his) and it's kind of crazy that he seems to have taken the entire lump sum and I know there has to be taxes and penalties associated with that.  I trust the waiver I signed and divorce documents will protect me from those fees and/or taxes.

... .whether he intends to be abandoning the home and mortgage payments or what.  I'll see if he replies.

One thing you can be sure about - he will not have any concern for your best interests.

And yes, you are right not to share information with him that you have an inkling of his plans.  You never know if what you share might be used against you.  Be aware and beware.

It would be best to get a legal opinion, perhaps from a qualified accountant familiar with tax laws and family law in your state to determine whether you have any legal exposure or what to beware of so that he doesn't create added risks in the months to come.