QUESTION
What can I do if my ex husband is filing bankruptcy before my name is removed from the mortgage?
Asked on Nov 25th, 2013 on Bankruptcy - New York
More details to this question:
My ex husband was supposed to assume financial responsibility for our home and mortgage. He is now filing for bankruptcy before my name is off of the mortgage.
12 ANSWERS
Assuming that either your Divorce Decree or Separation Agreement contained a clause whereby the ex agreed (1) to be financially responsible for the mortgage payment and (2) to indemnify and hold you harmless from the mortgage obligation, the ex's "hold harmless " agreement to you is not dischargeable in his bankruptcy. However, the Bank was not a party to your matrimonial agreements and is not bound by the terms of said documents. Accordingly, if the ex files bankruptcy the Bank will not be able to pursue him, but they will be able to look to you for payment. If the Bank sues you, you would be able to "implead" your husband into the lawsuit, on the grounds that he is actually the person who is liable to the Bank for the obligation. While this technical relief can be helpful from an academic standpoint, you would still be in the middle of a lawsuit that you do not want to be in. You do not provide enough information for me to determine if you would actually be in any real jeopardy, and I would strongly suggest that you discuss this matter with competent, local bankruptcy counsel.
Answered on Dec 13th, 2013 at 2:21 AM
Social Security Disability Attorney serving Melbourne, FL
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Law Office of Robert E. McCall
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You need a bankruptcy attorney, not family law.
Answered on Dec 03rd, 2013 at 6:11 AM
2 Awards
If he is filing a Chapter 7 bankruptcy his obligation to indemnify and hold hold you harmless from the mortgage company coming after you for payment is nondischargeable.
Answered on Dec 02nd, 2013 at 10:07 AM
1 Award
The first thing you need to understand is that it is impossible for him to get your name off the mortgage. I am sure he neither has the equity in the home or the credit to refinance the home. If there is only one mortgage, then if he stops paying it, they will ultimately foreclose. They will not be able to come after you for any money, but there will be a foreclosure on your credit. You can file a contempt motion in Divorce court, but what will that do for you? Nothing since what you want (your name off the mortgage) is impossible.
Answered on Nov 26th, 2013 at 4:02 PM
Richard hirsh
He has a right to file for bankruptcy relief. The answer lies in the terms of your divorce decree, and what obligations it imposes on him relative to that debt. His obligations to you are likely not dischargeable in the bankruptcy, so if the bank comes after you for that mortgage debt or any part of it you might be able to go after him depending on the terms of the decree.
Answered on Nov 26th, 2013 at 4:02 PM
There is very little you can do under these circumstances. Even if your ex spouse hadn't filed bankruptcy, it is rare that the divorce judges will enforce their orders requiring the ex to refinance the property and take the loan out of your name.
Answered on Nov 26th, 2013 at 4:02 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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You can do nothing except file a complaint in the bankruptcy seeking to have the debt ruled not dischargeable and going to the divorce court and seeking it enforce its order. Get an attorney.
Answered on Nov 26th, 2013 at 4:02 PM
Dispute Resolution Attorney serving Seattle, WA
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Law Offices of Helene Ellenbogen P.S.
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The mortgage is likely not included in the bankruptcy since it is a secured debt. What did your decree say about removing you from the mortgage? Was he required to refinance by a certain date? If all the decree ordered was that he pay the mortgage, then you are stuck with this. You may be able to go back to court to have the house transferred to you, pay any arrearages on the mortgage and save it from the bankruptcy assuming it's included.
Answered on Nov 26th, 2013 at 4:01 PM
You may not need to do anything. A lot depends on the type of bankruptcy and whether he is keeping the home or surrendering it through the bankruptcy. Bankruptcy law allows a person to file bankruptcy and continue to make the mortgage payments on a house as if the house was not in bankruptcy. Just because your name is on the loan doesn't mean that you are a direct part of his bankruptcy. If he is still current on the loan then it will not reflect negatively in any way on your credit that he filed bankruptcy. If he is surrendering the home you may want to discuss your options with an experienced bankruptcy attorney.
Answered on Nov 26th, 2013 at 4:01 PM
Divorce Attorney serving Bloomfield Hills, MI
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Catchick Law, P.C.
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Do you have anti-bankruptcy language in your Judgment of Divorce? If not, then consult with a bankruptcy expert to confirm your options.
Answered on Nov 26th, 2013 at 4:00 PM
Bruce Provda
You actually should be talking to a bankruptcy attorney yourself. You could end up with the responsibility for the mortgage. You can take him to family court in violation of the order, however, bankruptcy court often takes precedence.
Answered on Nov 26th, 2013 at 3:59 PM
Bankruptcy Attorney serving Walnut Creek, CA
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Alan E. Ramos Law Offices
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The only way that your name will be removed from the mortgage is if the property is sold or refinanced. Your agreement with your soon to be ex-spouse will not remove your legal obligation for the mortgage.
Answered on Nov 26th, 2013 at 3:59 PM