Property lein

[soft dad]

Hello

During my divorce, my ex wife and I decided it was best for the children to stay in the house they grew up in. It was agreed that if/when she sold the house, she would pay me X amount. She is now selling the house, and I know I will have a hard time getting my share.

1. Is there a way for me to put a lein on the property to make sure I receive my fair share?

Thank you.

[socrateaser]

>Hello
>
>During my divorce, my ex wife and I decided it was best for
>the children to stay in the house they grew up in. It was
>agreed that if/when she sold the house, she would pay me X
>amount. She is now selling the house, and I know I will have a
>hard time getting my share.
>
>1. Is there a way for me to put a lein on the property to make
>sure I receive my fair share?

This could get very messy. Here are some of the possibilities that come to mind:

If your divorce judgment states that you are entitled to some amount due on sale of the family home, then you can file a "Lis Pendens," (i.e., a notice of suit pending) with the county clerk (not the court clerk), where title to the home is filed.

Once the Lis Pendens is filed, it operates as a cloud on title, and no lender will make a mortgage or trust deed against the property, because your suit will have preference over their loan. Similarly, a buyer to pays cash will not have priority over you if you attempt to foreclose the lien and have the home sold (so, only a moron would pay cash in such a case). And, no title company will insure title with a Lis Pendens in place.

However, if your agreement is NOT part of your divorce settlement, then you don't have a legally enforceable agreement, unless you have some extrinsic proof, like a written contract signed by the other party, stating that your settlement in the divorce is contingent upon this agreement that you made to share the proceeds of sale.

If this is your situation, then you need to file a motion to set aside your divorce judgment on grounds that the settlement was procured by mutual mistake. Otherwise, the Lis Pendens will be unlawful, because your divorce judgment will not actually give you the right to a portion of the property, and your written agreement is not enforceable because the divorce judgment takes precedence.

However, if the agreement was made after the divorce judgment was entered by the court, the this is a breach of contract action and you will need to file a complaint in civil court to enforce your rights under the separate agreement. In this case, your Lis Pendens would display the case number of the contract action, rather than the divorce.

I STRONGLY recommend that you hire a lawyer if there is a significant amount of money at stake, because if you screw up this process, you will never get your money.

[soft dad]

Thank you Soc,

BTW, I guess I wasn't very clear. It is written in our divorce agreement. I just know that it will be a mission trying to get her to comply. It is a substantial amount.

1. Will I need a lawyer to file this Lis Pendens, or is it possible to do myself?

2. Will this make it harder for her to sell?

Thanks again,

[catherine]

I'm just curious - who's name is on the deed?

[soft dad]

I had to sign over a quit claim deed to her, and she was SUPPOSED to make a promissary note to me for the amount agreed. That, I haven't received.My name is on the current mortgage.

[socrateaser]

>1. Will I need a lawyer to file this Lis Pendens, or is it
>possible to do myself?

You can file the Lis Pendens yourself. Usually, there will be a form printed in your Property Code Section of your State Statutes. Regardless, if you don't create the form correctly, then the clerk won't file it. And, if you screw up the legal aspects, then the form will not protect you if you need to enforce your rights in court.

That's why I'm recommending that you not do this without assistance from someone who knows what they're doing.

>2. Will this make it harder for her to sell?

It will not make it impossible for her to sell, but it WILL make it "practically" impossible for her to close escrow and transfer title. Only a court order can issue an order restraining her from selling. But, you don't really care, because the Lis Pendens secures your interest in the house, even against a new buyer. This means that if someone were to tempt the fates, pay cash for the home and obtain title, your rights would take priority and you could ask the court to enforce your divorce judgment and issue a writ of execution under which the Sheriff would sell the house, and pay you your money, even as against a new owner.

[socrateaser]

>I had to sign over a quit claim deed to her, and she was
>SUPPOSED to make a promissary note to me for the amount
>agreed. That, I haven't received.My name is on the current
>mortgage.

You really should give me ALL the FACTS before asking a question about something as important as this.

If your divorce judgment ordered her to give you a note in exchange for a quitclaim from you, and she didn't give you the note, then she's in contempt of court and you can have her tossed in jail until she provides you with the note.

The fact that your name is still on the current mortgage is irrelevant, because the mortgage secures the lender's interest in the home, and makes you liable to make payments. None of this protects your interests at all.

No competent attorney would enter a judgment that ordered something like what you are describing, because the quitclaim that you "had" to sign, effectively transfers all your interest in the property to your ex in exchange for an unsecured note, which can only be enforced against her personally and not against the home.

And, now you don't even have the note, which means that you have NOTHING!

So, I don't know what you've gotten yourself into here, but you need to get an attorney fast, because this is WAY TOO complex for me to analyze without actually reading your entire divorce judgment, and I don't have time to do that.

[soft dad]

Soc,

I know... Just before the final hearing, I told my lawyer I lost faith in HER, these were all last minute changes. I think my first mistake was hiring her after she told me she had the utmost respect for my ex's attorney.

She seemed to be on my side for awhile, but near the end, it's almost like she took my ex's "side". But my ex dragged this on so long, I just wanted it over with. I gave into everything...

Even while up on the stand, when they asked me if I thought this was a fair and equitible division of property, I paused, and said "No, but I did sign it".

EDIT : The divorce agreement also states that upon sale of the house she must pay me my share.

Question 1: Because the agreement states this, will she be in contempt if she doesn't pay?

I'm sorry I didn't give enough of the details in my original post.
Thank you.

[socrateaser]

>EDIT : The divorce agreement also states that upon sale of the
>house she must pay me my share.
>
>Question 1: Because the agreement states this, will she be in
>contempt if she doesn't pay?

What is your "share?" Is it expressly stated in the judgment, as a fixed amount or percentage of the home's value, or is it some ambiguous and undetermined amount? Because, if it's the latter, then you don't actually know what your SHARE is!

You are not getting the picture. You are at a very real risk of getting !@#$%^& IN THE !@#!

You may have a contempt action. You may be able to file a Lis Pendens to protect yourself. You MAY be able to do nothing at all. But, I'll say it again: Your situtation is TOO COMPLEX to handle in this forum, so you need to STOP asking questions here, grow some testicles, CALL A LAWYER NOW and get control over the situation.

You are permitting  a woman who doesn't give a rat's ass about you anymore, to continue to control your life and your future, Mr. "soft dad" (your userid is Freudian as possible).

Don't ask me anymore questions until you've hired an attorney to protect your interests. If you do, I'll delete your posts.