Can I win this argument in court?

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Latest post Thu, Dec 10 2015 1:41 PM by Paddywakk. 12 replies.
  • Wed, Dec 9 2015 3:03 PM

    Can I win this argument in court?

    My ex-husband got our house in the divorce. He allowed me to live there with our daughter until she was done with the school year for approximatley 10 months. While living there, I was supposed to be paying the home equity loan on the property - I sent the checks every month, but my checks were never cashed because he had fell behind on the payments prior to me having to make them. The bank simply wouldn't accept the amount I was sending they wanted the full amount.

    Fast forward to when I moved out of the home he now says I owe him $xxxx (amount of sum of said payments). I said no, I owed them to bank but bank would not accept them so I am not just handing you over the money now so you can pocket it (he hasn't made a payment on the loan in over 2 years and house is going through a short sale right now).  I filed a motion explaining this and asking for all of the money he owes me - he has refused to pay me any child support or daycare costs because he says I owe him this money. 

    He filed a cross motion saying I owe him the money for the equity loan.

    Judge made his tentative ruling and we can now request oral argument if we don't agree.  The judge agreed I owed him the money BUT also ordered that he must provide me with proof of standing of the status of the home equity account including what is needed to bring it current and how he intends to do this. He didn't say my owing him the money is contingent upon this proof though.  The judge also agreed he owed me all of the money I requested and we can offset the payments (so I owe him a little more at this point).

    I feel like we can go to oral argument and argue that he will be unjustly enriched by pocketing this money and not using it to pay the loan, while not paying child support or ANY expenses for our daughter he is supposed to be paying.

    My lawyer seems to think it's too much of a "grey area" to risk it.  Why would he order him to show me proof on the loan then?  

    Any opinions would be very appreciated.

  • Wed, Dec 9 2015 3:21 PM In reply to

    Re: Can I win this argument in court?

    krissi10400:
    The judge agreed I owed him the money BUT also ordered that he must provide me with proof of standing of the status of the home equity account including what is needed to bring it current and how he intends to do this. He didn't say my owing him the money is contingent upon this proof though.

    That's typical.  You're obligated to do what you're supposed to do regardless of whether he does what he's supposed to do, and vice versa.

     

    krissi10400:
    he judge also agreed he owed me all of the money I requested and we can offset the payments (so I owe him a little more at this point).

    How much more?

     

    krissi10400:

    I feel like we can go to oral argument and argue that he will be unjustly enriched by pocketing this money and not using it to pay the loan, while not paying child support or ANY expenses for our daughter he is supposed to be paying.

    My lawyer seems to think it's too much of a "grey area" to risk it.  Why would he order him to show me proof on the loan then?

    I'm not sure I totally understand the question, and we obviously don't have all of the facts that led to this tentative ruling.  What I can tell you is that he is not "unjustly enriched" as that term is used in the law because you owe the money regardless of whether or not he uses it for the intended purpose.  Any "enrichment" is not to your detriment.

  • Wed, Dec 9 2015 3:28 PM In reply to

    Re: Can I win this argument in court?

    The offset comes to about $1,000 if I lose that is what I will owe him.  If I win I will win a lot more than that - everything he hasn't paid for our daughter in over a year.

    But isn't that enrichment to my daughter's detriment?  Since he has paid nothing in the way of support for her for over a year?

    I just keep thinking the reason the judge asked for proof of status on the loan is because I will not have to pay the money if he finds the loan is in arrears and realizes he is just pocketing the money.  Am I wrong?

     

    And thank you for responding!

  • Wed, Dec 9 2015 3:43 PM In reply to

    • Drew
      Consumer
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    • Joined on Thu, Mar 30 2000
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    Re: Can I win this argument in court?

    What seems to be missing is you are held liable in any way for the bank debt ...the practical outcome matters....IF you are not liable and he gets the house..then it's really none of your concern Id he stiffs the bank ..just so long as you andnchild get properly paid...and if I follow you post. The offset of what he owes you and you owe him is a small net you owe him ....so why not not appeal and bring a good check drawn upon a bank to get this page closed...

     

    This ignores some possible  tax deductions for some  loan interest you paid directly or indirectly 



  • Wed, Dec 9 2015 4:20 PM In reply to

    Re: Can I win this argument in court?

    krissi10400:
    I feel like we can go to oral argument and argue that he will be unjustly enriched by pocketing this money and not using it to pay the loan, while not paying child support or ANY expenses for our daughter he is supposed to be paying.

    If the home equity loan is in his name and not yours, and especially if the house and the first mortgage are also only in his name, then it's not your business whether he pockets the money you paid him to remain in the home for those 10 months.  You should think of that money as rent you paid to him, and realize that if he had not allowed you to stay you would likely have had to pay to live elsewhere.

    If on the other hand the home equity lender has the right to pursue you personally for payment via wage garnishment, asset attachment, or other means, that's more complicated.

    krissi10400:
    My lawyer seems to think it's too much of a "grey area" to risk it.

    How much experience does your lawyer have appearing before this judge?  If your lawyer knows how this judge thinks, and believes based on that knowledge that doing what you propose will anger the judge, you might want to pay attention to your lawyer.

  • Wed, Dec 9 2015 4:23 PM In reply to

    • Arthur3
      Consumer
    • Top 150 Contributor
    • Joined on Sun, Jan 21 2007
    • Posts 294

    Re: Can I win this argument in court?

    krissi10400:
     Am I wrong?

     

    I think so. if i understand your post, your x owned the house. In exchange for living there you agreed to make the bank payments. As you soon found out, banks don't take partial payments.

    In this case the payments were your rent. You would have had to pay rent if you lived somewhere else. You owe him the money because you agreed you would pay it. What he does with the money is not your bussiness.

    He had no right to withhold child support even if you owed him money. The judge might come down on him for that.

  • Wed, Dec 9 2015 4:44 PM In reply to

    Re: Can I win this argument in court?

    krissi10400:
    house is going through a short sale right now

    According to this New Jersey law firm's website, if your name is on any of the mortgages for this house (and the house is in NJ) you should be careful and try to keep yourself "in the loop" on what your ex proposes to agree on with any of the lenders.

  • Wed, Dec 9 2015 5:13 PM In reply to

    Re: Can I win this argument in court?

    Yes, my ex owned the house and his name is on all the mortgages.  

    He wasn't ordered to pay child support until I moved out so the judge did order back child support from then but again, I owe him more than he owes me at this point in child support.

  • Wed, Dec 9 2015 5:13 PM In reply to

    Re: Can I win this argument in court?

    No all mortgages were in his name only.

  • Wed, Dec 9 2015 5:27 PM In reply to

    Re: Can I win this argument in court?

    krissi10400:

    No all mortgages were in his name only.

    Sounds like you should consider yourself lucky on that count.

    If the amount you were supposed to pay each month was fair if viewed as a rent payment, then in my opinion (I'm not a lawyer) you should take your lawyer's advice.

  • Wed, Dec 9 2015 5:48 PM In reply to

    Re: Can I win this argument in court?

    I'm not lawyer either.  But if you are not on the mortgage, and the judge ordered you whatever for essentially rent, I'd do that and be done with it.

    If the ex is not paying someone else, and you are not on the hook for it, just pay what you were legally told, and move on in my humble opinion.  If he's getting away with something, that's his problem eventually.  Just hang onto whatever legal documents you have and a lawyer wouldn't be a bad thing to consult with on this.

    Good luck!

     

  • Thu, Dec 10 2015 8:45 AM In reply to

    Re: Can I win this argument in court?

    krissi10400:
    But isn't that enrichment to my daughter's detriment?  Since he has paid nothing in the way of support for her for over a year?

    Failing to pay child support is (typically) contempt of court, so there's no need to rely on an "unjust enrichment" theory (UI is only used when there's nothing else that will work), but that's not what this is about.  You owed him money for something, and he owed you money for something.  Apparently, when the two amounts are offset against each other, it results in you owing him about $1k, and it doesn't matter that he didn't or won't use the money for the intended purpose.  As an analogy, let's say that you crash your car into my parked car.  As a result, my car is totalled.  My car had a fair market value of $10k at the time of the accident, so you pay me $10k.  The intended purpose of the payment is that I buy a replacement car, but I'm not obligated to do that, yet you owe me the money regardless of what I use the money for.

     

    krissi10400:
    I just keep thinking the reason the judge asked for proof of status on the loan is because I will not have to pay the money if he finds the loan is in arrears and realizes he is just pocketing the money.  Am I wrong?

    No one here can speculate intelligently about the judge's reason(s) for asking for this evidence.  That's something you can and should discuss with your lawyer.

  • Thu, Dec 10 2015 1:41 PM In reply to

    Re: Can I win this argument in court?

    If the checks were never cashed, weren't you also unjustly enriched?  You still have the money YOU were supposed to pay.

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