Legal Question in Real Estate Law in California

Divorce w/ Home on the Line

Unfortunately my wife and I are about to go through a divorce. As of now we own a home together that is not worth as much as when we purchased. The mortgage on the first is $320,000 and we have a HELOC 2nd for $60,000. The HELOC was setup after the initial purchase of the home. The current market value for the home is at around $320,000 due to foreclosures in the area. We paid roughly $480,000. If we sold as of now we would be about $90,000 upside down due to the 2nd and the realtor fees.

I have been told that foreclosure may be the best option for us at this point and to both just walk away from the home. Also have been told that the holder of the 2nd will probably come after us after the fact to recoup loses and not allow any shortsale.

Questions:

1) Does foreclosure make the most sense in this situation?

2) Is it likely that we will have to file BK due to the HELOC?

3) Is there a Statute of Limitations on the amount of time the 2nd holder can seek damages?

4) Would the banks be willing to take one of us off the deed if the other agreed to continue paying (maybe at a renegotiated rate)

Any help is appreciated as we are stuck in a very bad position right now with this house.

Thanks......


Asked on 10/06/08, 7:15 pm

1 Answer from Attorneys
Judith Deming Deming & Associates

Re: Divorce w/ Home on the Line

1)Only you can determine if foreclosure makes sense for you; 2)even if you file bankruptcy, there is no guarantee that you will be relieved of the entire HELOC; 3)there is a four year statute of limitations which four years starts running as of the date of the loss; 4) HIGHLY UNLIKELY...why should they? They now have two borrowers on the hook, why should they accept only one, much less at a "negotiated" rate? That would be very bad business judgment.

Read more
Answered on 10/07/08, 12:13 am


Related Questions & Answers

More Real Estate and Real Property questions and answers in California