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  1. #1
    Join Date
    Dec 2012
    Location
    Indiana
    Posts
    28

    Default Spouse Allowed the Marital Home to Go Into Foreclosure During a Divorce

    My question involves a mortgage in the state of: Indiana

    Post divorce hearing, ex intentionally let the house go through foreclosure. 3 1/2 years after he filed, this high conflict war is nearing its intended conclusion.

    My initial offer to leave after (up to) 5 -6 months (to save and make rational plams) was rejected. In that case, he would have kept the house/equity. He had his attorney start emergency custody change motions (alleging abuse) and numerous manuevers to force me out. He finally made one settlement offer, which I accepted. It was then rescinded.

    The house was ordered sold; attorney fees in the amt of $4k first, after settlement costs, etc., then $15k equalization to me, then (up to) $5k for a support judgment he was not paying on, then proceeds to be split 50/50. The decree itself was vague, no assignment of who was to pay costs, be in possession, etc. (Ex would have gotten only about $6k from the house sale; there -was- about $62 equity before all this began.)

    This is second divorce (between us); I was forced to quit claim the house to him after the last one in return for a small sum about a year later. That time, i was out about two and a half months after the filing, two weeks after hearing. Specifically to avoid problems. He quit paying the mortgage about 9 months into his one year listing with the realtor he chose. I learned of the long contract when I had hoped to file a request for a change in realtors, as we'd had only two showings in six months and the market here has rebounded quite strongly. I was never allowed a copy of the sales contract; priced it at the high end of the appraisal and wouldn't budge, though some repairs/updating need to be done. The realtor told me it was priced as such, "because the judge said so," which of course is not accurate.

    I learned during discovery that ex has a pretty severe problem with gambling, in fact after hearing I discovered fraud (involving previous filings he'd made against me, therefore involving the Court). My attorney was quite aware of the problems during pendency, but when I received the very vague and largely silent decree and asked that a motion to have it tightened up or made more specific, she refused. When I insisted something be filed, she withdrew. My own filing was denied; I'm fairly certain I did not prepare it correctly. The only thing she told me was that the PO would "protect possession", though my priority was to get out, as this area (very rural) has nothing career wise and my transportation has been problematic. I was left totally unprepared as to how to deal with the inevitable problems.

    One daughter is still living here and will not be able to move until about 3 1/2 weeks after the sheriff's sale (she signed a lease last year). I've found information regarding tenant rights in foreclosure, but have not located (good) information for this sort of situation[/U][/B]. I actually can't afford to leave without something besides my normal income, especially since my credit excellent til last year) was trashed with all the extra expenses and his refusals to follow Court orders. I may have to stay somewhere temporarily, but I am looking at the very real possibility that I will also lose the bulk of my personal possessions, as things are turning out.

    Main question: The house is now scheduled for sheriff's sale. I've found information regarding tenant rights in foreclosure, but have not located (good) information for this sort of situation. Since I (we) am not the mortgagee or a tenant but have been forced into the situation of being unable to leave, I'd like to know how the post sale eviction process (should) work. The best information (tentative) I have is that eviction paperwork would need to be filed with the Court and a hearing scheduled; that would likely give the time needed ... if that is so, it would put my mind to rest and allow me to concentrate on other necessary things.

    Any guidance or information would be greatly appreciated; I've looked through the forums here and elsewhere for accurate information but haven't come to a similar enough situation. Thank you, very much.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Spouse Allowed the Marital Home to Go Into Foreclosure During a Divorce

    Why did you ignore the fact that mortgage payments were being missed and that foreclosure notices were issued, rather than taking the issue before the court? Or if you did take the issue to court, why didn't the judge order relief that would have prevented default and foreclosure?

    Under the Protecting Tenants at Foreclosure Act,
    Quote Quoting Protecting Tenants at Foreclosure Act, 12 USC Sec 5220, Notes
    (b) Bona Fide Lease or Tenancy. — For purposes of this section, a lease or tenancy shall be considered bona fide only if

    (1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant;

    (2) the lease or tenancy was the result of an arms-length transaction; and

    (3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State, or local subsidy.
    Thus, claiming that you leased the premises to your daughter, even if you can back that claim up with proof of her rent payments to you and proof that you declared your rent income on your taxes, from what you've told is she is not going to allow her to exercise the protections of that Act.

    Once the foreclosure is complete, the buyer at the foreclosure sale can issue a five day notice pursuant to Indiana Code Sec. 32-30-3-2, and can petition the court to evict you if you do not move within the notice period. How quickly a buyer will act, whether they'll be willing to give you time to move or even "cash for keys", and the like, aren't things we can predict for you.

  3. #3
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: Spouse Allowed the Marital Home to Go Into Foreclosure During a Divorce

    I suggest you investigate finding a way to redeem the house prior to sale.

  4. #4
    Join Date
    Dec 2012
    Location
    Indiana
    Posts
    28

    Default Re: Spouse Allowed the Marital Home to Go Into Foreclosure During a Divorce

    Mr. Know-it-all, somehow my (intended) post didn't make it on here; I edited and changed my question to get rid of a lot of the details but when I was trying to edit and post, something kept happening and telling me I had expired token, etc. I will repost so it is sensible; thank you and Disagreeable for the responses.

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