Do I need judgement in order to foreclose on the house, if my ex-husband has violated our divorce decree?

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Do I need judgement in order to foreclose on the house, if my ex-husband has violated our divorce decree?

My ex is living in the house and is responsible for payments, however the mortgage is still in my name. The decree states he is not allowed to make more than 2 late payments in a 1 year period, however he continues to do so. Can I just call the bank and have them foreclose, or do I have to take him to court in front of the judge? The attorney that handled the divorce will not help me since I cannot pay him, and he has not represented me or filed any paperwork in 8 months.

Asked on August 29, 2011 Arizona

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

What you need to do here is to enforce your divorce decree.  You yourself do not foreclose.  The bank forecloses.  If he makes the payments - albeit late payments - and they choose not to foreclose then that is their choice.  You can not force them to do so.  What you can do is to enforce the agreement or sue him for breach and ask for modification allowing you to - what do you really want to do here?  I am really concerned in general for you here.  Have you signed over the house to him in this settlement?  Then you bear all the liability with out ant benefit and the mortgage company will be hoppin mad when they find out.  Is there "paperwork" still outstanding here because you did did say that your old attorney has not filed paperwork so I wonder.  Please see if legal aid or legal services can help you.  Good luck. 


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