[WSBAPT] Interesting Problem

Mon Jan 5 13:01:00 PST 2015

Robert:

This goes to the authority of the court to force parties to do something (like refinance the mortgage within a time certain), with the court's contempt power being the ultimate club if the person has not done so (although if the person has made best efforts, but has been refused a refinance for some reason, one wonders whether he/she could be held in contempt of court.  In such an instance, however, my thought is it is possible that the court might order that the home be sold in order to have the mortgage paid off, with your client's name being removed in that fashion.  BUT - I am given pause as to that being a possible bit of relief since the court cannot modify dissolution decrees as to property and debt distribution, per statute.)  BUT - all of the comments in this paragraph apply only to a situation where the person ordered to do something by the court is still alive.

Now that the person ordered to refinance is deceased, the divorce court cannot enforce its order, in my opinion.  Your question implies that you might be thinking that the court can order the mortgage holder to take your PC's "name off the mortgage," but that it impossible, since the mortgage company is not a party to the original litigation, and cannot be ordered to do anything.

However, your PC probably fits the category of a "creditor," which, under RCW 11.28.120, gives her the right to file the probate and serve as PR if others have not filed to serve in that role.

As PR, she might well be able to arrange to sell the house, which would allow her to reach her goal.

Methinks that your PC probably let things slide too long.  This is a heck of a time to be trying to do something, particularly if the divorce decree set a date certain by which time the (now-deceased) ex-spouse was to have accomplished the refinance.  Many divorce decrees have provisions that order a refinance, but also order that if the person ordered to obtain the refinance fails to do so, the house is to be sold.  But, even if the divorce decree had such a provision, it is now too late to do anything within the divorce case.  Probate court is the only place where something could take place.  If your PC becomes the PR, it puts her in the driver's seat insofar as steering the probate towards a sale of the house.  Meanwhile, she could make up the back-due payments with her own funds, and seek reimbursement from the sale proceeds upon sale.

However, it is well possible that the house is "under water," which is (perhaps) why the refinance could not take place.  In that case, your PC might well be out of luck, with her credit potentially taking a hit.

Good luck.

Regards,

Doug Bratt

Douglas J. Bratt
Lawyer

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Robert Maxwell
Sent: Monday, January 05, 2015 12:21 PM
To: WSBAPT at lists.wsbarppt.com
Subject: [WSBAPT] Interesting Problem [auto-ip]

I have a PC that was divorced about 7 years ago and as a part of her divorce decree the house her and her ex-husband owed together was awarded to her ex-husband on the condition that he refinance the house under his name only.

Recently, the ex-husband passed away and PC just found out that her name was never taken off the mortgage and that her ex-husband had been behind on the mortgage payments on the property. She found this out when she had a credit check done and noticed that her credit was taking a hit from non-payment on the mortgage.

She wants the divorce decree enforced and her name removed from the mortgage; the issue is that there is no party to bring a CR 70 motion against since the ex-husband is deceased and no probate has been initiated.

I am a newer attorney and have not encountered this problem yet. Has anyone dealt with a this problem that is willing to discuss possible solutions to get her name off the mortgage and enforcement of a divorce decree when the party to bring the action against is deceased and no probate has been initiated?

Thank you in advance!

Robert D. Maxwell
Attorney at Law
The Moultray Law Group
www.Moultray.com<http://www.moultray.com/>
11661 SE 1st Street
Suite 100
Bellevue, WA 98005
Phone: 206-777-1435<tel:206-777-1435>
E-Mail: robert at moultray.com<mailto:Josh at Moultray.com>

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