gregorygarver.com

[HoosierDaddy]

What trumps in Indiana, a signature on a realtor's contract or a quit claim deed? Reason I ask is that my ex-wife and I signed a realtor's contract for my property, then a week later she executed a quit claim deed transferring the property from the two of us to just me. I want to take the house off the market and refinance--I've a mortgage company that is eager for this, somebody who can actually make payments is popular these days.I know that my ex-wife would not consent to this, since she wants to force the house to be sold, grab half the gross (before first-mortgage payoff) profits, and leave me with tens of thousands in the bag.Well, I think that my attorney has explained to her that the mortgage gets paid off first, regardless of what she thinks the property settlement claims. Or at least she's explained that to her attorney.Now, as far as I understand a quit claim, since my property settlement does NOT require a sale......the quitclaim means that my ex-wife has surrendered all rights to the property, including saying whether or not it stays on the market. Am I right in presuming this? I have asked my attorney, but I'm just on pins and needles over this question.What if my ex-wife's attorney has managed to not record the quit-claim in the 20 or so days that he's had it in his hands? I DO have a Xerox of the quit-claim with my signature and my ex-wife's signature (notarized) on it.Is this going to have to go before a judge or is it something that any sane attorney will be able to explain to even my ex-wife?THERE WAS NO "UNDERSTANDING" THAT THE PROPERTY WOULD BE SOLD!!! DON'T GIVE ME SUCH A LOAD OF TRASH! It was only on the market because nobody was nibbling on the refinance until now.My attorney already informed me that my property settlement does not require me to actually sell the property, merely remove any obligations that the property lays upon my ex-wife. There was NO PROVISION AT ALL for splitting profits from any sale. There was no verbal agreement to do this. According to the WRITTEN AND RECORDED terms of the property settlement, I was to own the property free and clear, she was to quit-claim it. THERE WAS NO AGREEMENT TO SPLIT ANY SALE PROCEEDS, STOP MAKING RUBBISH UP!She, on the other hand, WAS explicitly required to quit-claim the property within TEN days of the divorce being final. She did not actually do so until well after THIRTY days past the deadline, and her shiftless attorney still might not have recorded it.And we have an appraisal, having just bought the house a couple years ago. We got a new appraisal during the divorce. Technically speaking, she should give ME money to take it off her hands under the new appraised value, evidently prices in the neighborhood have dropped. We had paid off very little of the mortgage.

[raichasays]

It sounds like you got your ex to agree to quitclaim her interest to you with the understanding that the property was going to be sold. If you don't sell, you will breaching the terms of your agreement with her.If her attorney has the deed and it has not been delivered to you for recording, it is likely that the transfer to you will not be considered complete. You cannot do anything with the copy to make it complete.So right now, the only contract that counts is the contract to sell that was signed by both of you and the realtor.Go back and talk to your lawyer again until you get this right.

[JohnM5405]

a sane ex-wife in the middle of a property settlement? come-on, does such a thing exist? ;)The quit claim gives you control of the property itself. She has no ownership interest in it. BUT, if you have a court ordered property division, and it says to sell the house and split the proceeds, then you would have to do so or find another way to pay her a similar amount. As you know, you can't sell the house without clearing the mortgages or discounting the price a like amount if the mortgage is assumable, so typically the value to be split is the net proceeds of the sale, after mortgages are paid off and all the other costs of sale are paid. If you want to keep the house, you just get estimates of the sale price from an appraiser and subtract the costs you would have incurred in selling the house. Those include sales commission to a realtor, real estate transfer tax, title insurance and other closing costs at a title company closing. The court would accept an appraiser's valuation less selling costs and closing costs as being equal to what is contemplated by the order to sell. Your ex can challenge the appraiser's value by providing another appraisal. The court would probably average the two to establish value, and use the contracted sales commission plus closing costs as the sale costs.So if you can find the money to pay off your ex her half of that value, you can keep the house. Your mortgage company may not allow you to keep the mortgage you have since your wife was probably a cosigner. they may have a way to remove her from the note, or may just have you take out a new loan instead.And yes, her attorney will be able to convince her that what you are saying is true, assuming you understand the settlement agreement correctly.

[bluebird]

If the quit claim was not recorded with the clerk of the court, it is not solely yours. You should have done that.If it was done as part of the divorce property settlement, but not recorded, than it may be valid, sounds iffy.So long as her name is on the mortgage, you will not be able to refinance it by yourself until it is in your name.Even so, if the claim is recorded, her name will remain on the mortgage until it is paid off.

[DavidM]

The Quit Claim deed prevails. The real estate contract is an agreement to sell that can be broken. The QC deed is an absolute transfer of her interest to you. Notice is preferred by recording, but not required. Recording is notice "to the world" but does not affect her transfer to you. As you correctly note, giving the property to you does not affect her mortgage duties either. If you google QC deeds in Indiana, you'll find a hit that lists the use of QC deeds in every state. I also used my legal search engine to check Indiana law and found QC deeds commonly used between husbands and wifes in Indiana in estate planning and divorces. Also, whatever the deal with the realtor is, your wife is out of it and the agreement is negated (on her part) by executing and GIVING you the QC deed. EDIT: I've been doing this for 30 years. It amazes me that people think deeds have to be recorded to be valid. THEY DO NOT. They are valid once they leave the grantor's hands. Also-my apologies-you editted this to make it clear you had to assume the debt, so ignor that part of my answer.

[kenerestu]

HD,I believe you have a strong argument that the quitclaim trumps over the realtor's contract to sell. The reason being is that it was completed AFTER the agreement to sell. Then, she executes a quitclaim deed thereby transferring all her rights and interest in the property to YOU. Since the property settlement does NOT require a sell, you have even much greater argument that the quitclaim should stand.She can however claim that the quitclaim does not provide for any profit from her previous joint-ownership of the home. But that can be effectively resolved by completing the refinance then, factoring the amount she would have earned from the sale of the home.Way to go, you get rid of an ex and you get to keep the house too. Good luck.

[Boehma18]

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[PyncnindPsype]

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[MafeHoare]

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[MafeHoare]

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