Legal Question in Family Law in Indiana
I was divorced on February 2, 2006, at the time of the divorce my ex would of been getting a big sweetner from the steel mill. I said what about that money. He said no you can have the house. What was stated in the divorce papers was that I was to sell or refinance to get the ex's name off of the loan. I did not know that would be such a problems as it is becoming at this immediate time. Since then, the ex is holding me in contempt of court because his name is not off of the loan. When we first got divorced, I had a daughter from a previous marriage, he told me to stay there til she graduates high school which would of been in June of 2007. So then in March of 2007 I put the house up for sale and had it up for 1 yr., no buyers. I am on disability, and I have been making the payments myself for over 3 1/2 years, now the bank that holds the loan, tells me that I do not make enough money to refinance. I said yes but a yr ago in June, 2008 you said that if I made the payments on time and got a credit card you could help me. She said sorry we can't. So I go to the lawyer where I initially got the divorce and that lawyer is no longer there. Another lawyers is representing me, but today when I met him I asked him where is my file? He said we don't know he must of took it when he left this firm. I cannot believe that's the truth. So what this lawyers is telling me is that oh well put the house up for sale (I have been here for a little over 9 years now). I asked him why didn't that lawyer help me he knew how much I made, he had to of known I was not going to be able to be refinance this home. I said I went to a lawyer, I was upset at the time, a lawyer is suppose to know the ins & outs of the law, why wasn't I represented the right way. Is there any help out there for me. My court date is this Monday, Sept. 21, 2009. Is this legal malpractice on this law firm?
1 Answer from Attorneys
I cannot render an opinion as to whether there was legal malpractice based on the information provided. The firm should however make every possible effort to loacte that file, Now! You can probably locate the original attorney by doing an internet search.
The fact that the file cannot be located should give present counsel a reaonable grounds for a continuance that should be obtained at no fee for you, since a firm is responsible for its files.I cannot say for sure that a court would grant the continuance, but one never knows.
The courts are fully aware of the economy and the real estate and mortgage markets and how things have changed. I suspect that if you can bring the court full and detailed documentation of your efforts to obtain financing, you will not be held in contempt of court.
Also, based on the market of three years ago, when financing was asset based as opposed to income based, it is quite possible that the advice given at the time was appropriate. The fact that the lender in 2008 before the crash indicated a willingness to refinance if you developed a history of timely payments and credit is an indication that the lawyers advice (on the refinancing) would not constitute malpractice.
The advice to try and sell the home now, is probably good advice since you are not likely to qualify for income based financing. However, even that is a problem in light of current markets.
You might try a modification of the existing mortgage and work something out with your ex concerning an extension of time until the markets improve, to sell the home.
I know that I have not provided you with the information that you wanted to hear, but I hope it helps.
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