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posted: 8/26/2012 5:00 AM

Mortgage complicated by husband and wife's breakup

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Q. I got divorced about 10 years ago and moved out of town. My husband stayed in our home and was responsible for all the payments.

I have now moved back and am attempting to buy a condominium. My mortgage guy says I can't get a loan until I am off the old loan.

I looked at my divorce agreement and it says my husband will refinance and have me removed from the loan within 90 days. It appears he has not done that. Can I show my old mortgage company that I am supposed to be off the old loan so I can go forward with my buy?

A. Sorry, it's not quite that easy. Your original mortgage company doesn't really care what your divorce judgment says. All they know is they have your signature on the loan you took out with your ex-husband and you remain liable under it's terms.

I would contact your ex and let him know he is in violation of the terms of your judgment and either he immediately take action to refinance or you will file a petition in divorce court to have him held in contempt of court. If you do not get an immediate reaction, contact your prior divorce attorney or any other family law attorney and explain your situation. The court will make every attempt to enforce the terms of your judgment and force your ex to take whatever action necessary to terminate your obligation under the old loan.

Q. I have an ongoing dispute with an ex-business partner and I am very close to filing a lawsuit against him. He is now attempting to sell his house and move out of town. Once he leaves, I doubt I will ever be able to collect what he owes me.

A friend told me I could file something called a "lis pendens" against his property. My friend says this will prevent him from selling the property. I want to get my lawsuit resolved before he sells because I think the equity in his house is his only asset. Is this something I could do and will it work like my friend says?

A. No and no. A lis pendens is a document recorded against a piece of property that gives notice to all that there is pending litigation involving that property. The key words here are "involving that property." Lis pendens are typically filed in foreclosure actions, which, of course, involve the property. A lis pendens would not be available to you as the pending litigation does not involve the property (I presume). Recording the lis pendens could expose you to a slander of title action by your ex-partner.

Now, once you obtain a judgment, you could record what is known as a judgment lien against the property. Presuming he had not yet disposed of the property, your judgment lien would need to be satisfied for him to sell the property.

There may be other remedies available to you. Contact a litigation attorney for further details.

• Send your questions to Attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to or call (847) 359-8983.

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