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May 19, 2011 at 12:42 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #697532May 19, 2011 at 12:42 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #697679
bearishgurl
ParticipantRegardless of ANY language on the OP’s MSA, I STILL have a problem with the ex-wife signing the trust deed (along with the OP). Whether the holder of the (belated) trust deed (executed during a “divorce settlement”) is a relative or not is immaterial. In CA, I don’t see how domestic judges can legally absolve a domestic party from a promissory note they signed while married and taking title as joint tenants. Nor can they absolve parties of joint debts secured by filed trust deeds they executed together.
If the OP lets the first TD go into foreclosure, it will affect BOTH their credit reports. If he lets the 2nd TD go into foreclosure, does this (private) bene know how to report this foreclosure to the OP’s credit report?? If they did, they would likely (selectively) NOT, of course report it to their own daughter’s credit report.
frenchlambda, practically speaking, your “equalization stipulation” that you presumably signed the trust deed in exchange for really means nothing if (1) your ex-wife has no assets; (2) your ex wife is not employed or employable; and (3) you are unable to trace the (commingled) downpayment funds as your sole and separate property before a judge. I fear that if you try to collect any of these monies now or later, your ex’s parents will get her a lawyer to fight you in court on the amount. If the court awards you some or all of your 2640 monies, subject to proof, you will STILL have to colllect from her, which could prove to be problematic.
As for your child custody situation, I know you wanted to spend as much time with your daughter as possible and I’m not you but I really believe, based on the child endangerment charge filed against your ex, that you could have gotten at least a 50% timeshare and even moved her to Orange County to live near your job, IMHO. One of you would have gotten at least one weekend per month, half the holidays changing on rotating years and 90% of the summer vacation. I know … “water under the bridge” now (meaning: already done). In any case, you are probably aware that child custody arrangements are changeable thru the court until your child reaches the age of 18.
Domestic courts in CA do NOT favor moms over dads for child custody (not even female judges). They are fully aware that many moms are flaky and do not have the financial wherewithal to keep a stable home for children (even with support coming in).
Based on your posts, the reason I feel your in-laws got involved in your dissolution at the “11th hour” by finally filing a trust deed on your marital property (meaning “at the last minute”) is because they feared their own daughter would lose custody of your child or get limited visitation based on her recent arrest. They wanted to keep you distracted and worried that you wouldn’t have a local home for her so dangled the trust deed carrot in front of you during the proceedings. It worked and your lawyer refused to advise you on it.
I believe your in-laws are fully aware that RE values have fallen and, as a subordinate TD holder, they cannot recover all of their investment on a successful foreclosure and can’t come after either of you for the balance due because it was a “purchase money” loan. Their lawyer told them that. They did not file a TD at the time they executed the promissory note with both of you because it was meant to be a “gift.” The divorce changed everything for them.
This is just my contribution, based upon your posts. Seek advice from a good RE attorney who can advise you on whether that language in your MSA holds any water over your previously jointly executed trust deeds (security instruments) and notes. You always have the option of defaulting on your 1st TD only, affecting your ex’s credit as well. Then your ex-in-laws will be forced to bid the opening bid at the eventual trustees sale to gain ownership of the property, then sell it and recoup some of their loss. If they do nothing and let the property revert back to your 1st TD beneficiary, they will lose their entire investment.
Good luck!!
May 19, 2011 at 12:42 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #698034ParticipantRegardless of ANY language on the OP’s MSA, I STILL have a problem with the ex-wife signing the trust deed (along with the OP). Whether the holder of the (belated) trust deed (executed during a “divorce settlement”) is a relative or not is immaterial. In CA, I don’t see how domestic judges can legally absolve a domestic party from a promissory note they signed while married and taking title as joint tenants. Nor can they absolve parties of joint debts secured by filed trust deeds they executed together.
If the OP lets the first TD go into foreclosure, it will affect BOTH their credit reports. If he lets the 2nd TD go into foreclosure, does this (private) bene know how to report this foreclosure to the OP’s credit report?? If they did, they would likely (selectively) NOT, of course report it to their own daughter’s credit report.
frenchlambda, practically speaking, your “equalization stipulation” that you presumably signed the trust deed in exchange for really means nothing if (1) your ex-wife has no assets; (2) your ex wife is not employed or employable; and (3) you are unable to trace the (commingled) downpayment funds as your sole and separate property before a judge. I fear that if you try to collect any of these monies now or later, your ex’s parents will get her a lawyer to fight you in court on the amount. If the court awards you some or all of your 2640 monies, subject to proof, you will STILL have to colllect from her, which could prove to be problematic.
As for your child custody situation, I know you wanted to spend as much time with your daughter as possible and I’m not you but I really believe, based on the child endangerment charge filed against your ex, that you could have gotten at least a 50% timeshare and even moved her to Orange County to live near your job, IMHO. One of you would have gotten at least one weekend per month, half the holidays changing on rotating years and 90% of the summer vacation. I know … “water under the bridge” now (meaning: already done). In any case, you are probably aware that child custody arrangements are changeable thru the court until your child reaches the age of 18.
Domestic courts in CA do NOT favor moms over dads for child custody (not even female judges). They are fully aware that many moms are flaky and do not have the financial wherewithal to keep a stable home for children (even with support coming in).
Based on your posts, the reason I feel your in-laws got involved in your dissolution at the “11th hour” by finally filing a trust deed on your marital property (meaning “at the last minute”) is because they feared their own daughter would lose custody of your child or get limited visitation based on her recent arrest. They wanted to keep you distracted and worried that you wouldn’t have a local home for her so dangled the trust deed carrot in front of you during the proceedings. It worked and your lawyer refused to advise you on it.
I believe your in-laws are fully aware that RE values have fallen and, as a subordinate TD holder, they cannot recover all of their investment on a successful foreclosure and can’t come after either of you for the balance due because it was a “purchase money” loan. Their lawyer told them that. They did not file a TD at the time they executed the promissory note with both of you because it was meant to be a “gift.” The divorce changed everything for them.
This is just my contribution, based upon your posts. Seek advice from a good RE attorney who can advise you on whether that language in your MSA holds any water over your previously jointly executed trust deeds (security instruments) and notes. You always have the option of defaulting on your 1st TD only, affecting your ex’s credit as well. Then your ex-in-laws will be forced to bid the opening bid at the eventual trustees sale to gain ownership of the property, then sell it and recoup some of their loss. If they do nothing and let the property revert back to your 1st TD beneficiary, they will lose their entire investment.
Good luck!!
May 18, 2011 at 8:56 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #696672Participant[quote=frenchlambda]
– a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]To me, this is the red flag here, frenchlambda. You must know you could have taken a myriad of actions to ensure your rights to the “other reimbursement” you feel that you alone were entitled to. Instead of calling her bluff, you fell for your ex-wife’s legal shenanigans all the while making a deal with the devil in order to be “done.” Now you are “done” but at what price??
In addition, your ex-wife’s presumed “child-endangerment” charge from being arrested while driving could have been used for your benefit in a child-custody proceeding … but you (prematurely) gave it away.
You cannot become “personally involved” if your legal opponent (and this is, ostensibly, what your in-laws were at that time) decides to “freak out.” You shouldn’t care about this.
Blood is always thicker than water, no matter WHAT the circumstances. I’ve seen this time and time again and it played out the same in the situation you described here. What else would you expect??
May 18, 2011 at 8:56 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #696760Participant[quote=frenchlambda]
– a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]To me, this is the red flag here, frenchlambda. You must know you could have taken a myriad of actions to ensure your rights to the “other reimbursement” you feel that you alone were entitled to. Instead of calling her bluff, you fell for your ex-wife’s legal shenanigans all the while making a deal with the devil in order to be “done.” Now you are “done” but at what price??
In addition, your ex-wife’s presumed “child-endangerment” charge from being arrested while driving could have been used for your benefit in a child-custody proceeding … but you (prematurely) gave it away.
You cannot become “personally involved” if your legal opponent (and this is, ostensibly, what your in-laws were at that time) decides to “freak out.” You shouldn’t care about this.
Blood is always thicker than water, no matter WHAT the circumstances. I’ve seen this time and time again and it played out the same in the situation you described here. What else would you expect??
May 18, 2011 at 8:56 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #697357Participant[quote=frenchlambda]
– a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]To me, this is the red flag here, frenchlambda. You must know you could have taken a myriad of actions to ensure your rights to the “other reimbursement” you feel that you alone were entitled to. Instead of calling her bluff, you fell for your ex-wife’s legal shenanigans all the while making a deal with the devil in order to be “done.” Now you are “done” but at what price??
In addition, your ex-wife’s presumed “child-endangerment” charge from being arrested while driving could have been used for your benefit in a child-custody proceeding … but you (prematurely) gave it away.
You cannot become “personally involved” if your legal opponent (and this is, ostensibly, what your in-laws were at that time) decides to “freak out.” You shouldn’t care about this.
Blood is always thicker than water, no matter WHAT the circumstances. I’ve seen this time and time again and it played out the same in the situation you described here. What else would you expect??
May 18, 2011 at 8:56 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #697504Participant[quote=frenchlambda]
– a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]To me, this is the red flag here, frenchlambda. You must know you could have taken a myriad of actions to ensure your rights to the “other reimbursement” you feel that you alone were entitled to. Instead of calling her bluff, you fell for your ex-wife’s legal shenanigans all the while making a deal with the devil in order to be “done.” Now you are “done” but at what price??
In addition, your ex-wife’s presumed “child-endangerment” charge from being arrested while driving could have been used for your benefit in a child-custody proceeding … but you (prematurely) gave it away.
You cannot become “personally involved” if your legal opponent (and this is, ostensibly, what your in-laws were at that time) decides to “freak out.” You shouldn’t care about this.
Blood is always thicker than water, no matter WHAT the circumstances. I’ve seen this time and time again and it played out the same in the situation you described here. What else would you expect??
May 18, 2011 at 8:56 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #697858Participant[quote=frenchlambda]
– a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]To me, this is the red flag here, frenchlambda. You must know you could have taken a myriad of actions to ensure your rights to the “other reimbursement” you feel that you alone were entitled to. Instead of calling her bluff, you fell for your ex-wife’s legal shenanigans all the while making a deal with the devil in order to be “done.” Now you are “done” but at what price??
In addition, your ex-wife’s presumed “child-endangerment” charge from being arrested while driving could have been used for your benefit in a child-custody proceeding … but you (prematurely) gave it away.
You cannot become “personally involved” if your legal opponent (and this is, ostensibly, what your in-laws were at that time) decides to “freak out.” You shouldn’t care about this.
Blood is always thicker than water, no matter WHAT the circumstances. I’ve seen this time and time again and it played out the same in the situation you described here. What else would you expect??
Participantsdr, your most recent remark is utterly absurd. Not only do have no idea who this “spammer” is, I was not reading Piggington at all in 2008.
Participantsdr, your most recent remark is utterly absurd. Not only do have no idea who this “spammer” is, I was not reading Piggington at all in 2008.
Participantsdr, your most recent remark is utterly absurd. Not only do have no idea who this “spammer” is, I was not reading Piggington at all in 2008.
Participantsdr, your most recent remark is utterly absurd. Not only do have no idea who this “spammer” is, I was not reading Piggington at all in 2008.
Participantsdr, your most recent remark is utterly absurd. Not only do have no idea who this “spammer” is, I was not reading Piggington at all in 2008.
May 18, 2011 at 8:11 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #696652Participant[quote=ucodegen]First things first:
[quote frenchlambda]- a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]
This is where you screwed up. Did you have an attorney representing you at the time? If not, and considering that coercion/duress was used by their attorney (under threat of legal action but w/o legal representation), it could invalidate the deed of trust (signatures under coercion are often not enforceable – more so if the counter party is not represented by an attorney, even more so if the threat from the counter party or counter party’s attorney contains the implied — “if you get an attorney to check this, then we will definitely sue”). The reason why they threatened here is that they didn’t have a leg to stand on w/ respect to the loan. With the deed, they now do.
NOTE: It might have been useful to offset the loan owed to parents by the amounts under consideration under the “stipulation and order”, thereby reducing your payments and loan amount — and making it easier to refi the ex-inlaw portion. But now you may have to take the effort to make sure the “stipulation and order” is enforced.What this signature did, was convert an unsecured loan into a secured loan. This is a huge benefit to your wife and parents. From what I am seeing so far, the loan still looks open-ended though, so they aren’t really able to foreclose. The note was not callable as was written, unless you also signed something that changed the loan into something callable.
Was the divorce proceedings done through court or arbitration? $13K sounds like court(but not drawn out). Was the “stipulation and order” part of the divorce agreement? If it was a court divorce proceedings AND was part of the agreement AND she then refused, she could be in contempt of court. What was in the “stipulation and order”?
[quote frenchlambda]I was nice enough to offer her shared child custody when my attorney recommended full custody for me.[/quote]
Should have listened to your attorney. Shared custody is hard enough when both parties are healthy and of fit mind. They are a nightmare if one is addicted, pathological or has revenge in mind. Until she is 100% clean for a period of time, it should have been visitation with supervision- for the sake of your daughter. Once she is 100% clean for a period of time, it is always possible to go back and amend to give her more rights/shared custody. It is hard to take back or re-establish custody once given though.[quote frenchlambda]I think that it would be extremely disruptive to my daughter if I move.[/quote]
Moving is less disruptive to kids than it is to parents. Kids adapt a lot faster than their parents – just look how fast they can learn and pick up on new things.. ie technology.[quote frenchlambda]I guess I will have no other choice than taking $30K from my 401(k). Is it even possible to do so? What are the costs associated with taking money from a 401(k)? Will I have to pay a huge tax next year?[/quote]
There is a way to use 401k money for real-estate purchases. I am not up 100% on how. Someone on the board may be. The problem may be that it can(maybe) only be used on original purchase, not refinance.
http://www.ehow.com/how_2075559_purchase-home-using-401k.html
http://www.forbes.com/2010/03/24/tapping-retirement-funds-ira-401k-personal-finance-house-downpayment.html
http://www.forbes.com/2009/04/04/ira-401k-hardship-personal-finance-retirement-ten-percent-penalty.htmlAnd I am stressing again, when they bring an attorney to the table, make sure you have one too.. otherwise, you are the one getting screwed. Their attorney is only there to protect their rights, assets, wishes.. not yours. Considering that you tried to help their daughter and now they want the money immediately, this thing has already gone ‘adversarial’. No point in trying to ‘be nice’. Just deal with the facts.
For the IRA withdrawal, check w/ Accountant/IRS before committing.[/quote]
Fantastic post, ucodegen! I have a REALLY hard time with TWO parties signing a (albeit poorly written) promissory note, yet only ONE ends up being responsible for it by signing the related trust deed encumbering real property in CA (obviously under duress). There’s something terribly, terribly WRONG with that picture. I’m not completely certain, but I don’t understand how ONLY ONE party out of two who signed a note can back out of the related TD obligation. I don’t think a State judge would have jurisdiction over this joint debt.
May 18, 2011 at 8:11 PM in reply to: Ex-in-laws (3rd party creditors) want to foreclose on my condo #696740Participant[quote=ucodegen]First things first:
[quote frenchlambda]- a few months ago, while my then wife and I were trying to reach an agreement, her parents freaked out about the loan they gave us. They hired an attorney who threatened me to take legal action against me if I refused to sign a deed of trust for the benefit of his clients.
– at this time, my wife was refusing to sign a “stipulation and order” that showed that I was entitled to some other reimbursement
– so we worked out a deal. I signed the deed of trust and my wife signed the “stipulation and order” document.[/quote]
This is where you screwed up. Did you have an attorney representing you at the time? If not, and considering that coercion/duress was used by their attorney (under threat of legal action but w/o legal representation), it could invalidate the deed of trust (signatures under coercion are often not enforceable – more so if the counter party is not represented by an attorney, even more so if the threat from the counter party or counter party’s attorney contains the implied — “if you get an attorney to check this, then we will definitely sue”). The reason why they threatened here is that they didn’t have a leg to stand on w/ respect to the loan. With the deed, they now do.
NOTE: It might have been useful to offset the loan owed to parents by the amounts under consideration under the “stipulation and order”, thereby reducing your payments and loan amount — and making it easier to refi the ex-inlaw portion. But now you may have to take the effort to make sure the “stipulation and order” is enforced.What this signature did, was convert an unsecured loan into a secured loan. This is a huge benefit to your wife and parents. From what I am seeing so far, the loan still looks open-ended though, so they aren’t really able to foreclose. The note was not callable as was written, unless you also signed something that changed the loan into something callable.
Was the divorce proceedings done through court or arbitration? $13K sounds like court(but not drawn out). Was the “stipulation and order” part of the divorce agreement? If it was a court divorce proceedings AND was part of the agreement AND she then refused, she could be in contempt of court. What was in the “stipulation and order”?
[quote frenchlambda]I was nice enough to offer her shared child custody when my attorney recommended full custody for me.[/quote]
Should have listened to your attorney. Shared custody is hard enough when both parties are healthy and of fit mind. They are a nightmare if one is addicted, pathological or has revenge in mind. Until she is 100% clean for a period of time, it should have been visitation with supervision- for the sake of your daughter. Once she is 100% clean for a period of time, it is always possible to go back and amend to give her more rights/shared custody. It is hard to take back or re-establish custody once given though.[quote frenchlambda]I think that it would be extremely disruptive to my daughter if I move.[/quote]
Moving is less disruptive to kids than it is to parents. Kids adapt a lot faster than their parents – just look how fast they can learn and pick up on new things.. ie technology.[quote frenchlambda]I guess I will have no other choice than taking $30K from my 401(k). Is it even possible to do so? What are the costs associated with taking money from a 401(k)? Will I have to pay a huge tax next year?[/quote]
There is a way to use 401k money for real-estate purchases. I am not up 100% on how. Someone on the board may be. The problem may be that it can(maybe) only be used on original purchase, not refinance.
http://www.ehow.com/how_2075559_purchase-home-using-401k.html
http://www.forbes.com/2010/03/24/tapping-retirement-funds-ira-401k-personal-finance-house-downpayment.html
http://www.forbes.com/2009/04/04/ira-401k-hardship-personal-finance-retirement-ten-percent-penalty.htmlAnd I am stressing again, when they bring an attorney to the table, make sure you have one too.. otherwise, you are the one getting screwed. Their attorney is only there to protect their rights, assets, wishes.. not yours. Considering that you tried to help their daughter and now they want the money immediately, this thing has already gone ‘adversarial’. No point in trying to ‘be nice’. Just deal with the facts.
For the IRA withdrawal, check w/ Accountant/IRS before committing.[/quote]
Fantastic post, ucodegen! I have a REALLY hard time with TWO parties signing a (albeit poorly written) promissory note, yet only ONE ends up being responsible for it by signing the related trust deed encumbering real property in CA (obviously under duress). There’s something terribly, terribly WRONG with that picture. I’m not completely certain, but I don’t understand how ONLY ONE party out of two who signed a note can back out of the related TD obligation. I don’t think a State judge would have jurisdiction over this joint debt.
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