Mortgage trumps divorce agreement

Posted7/10/2016 5:00 AM

Q. My ex and I were divorced about five years ago. There was no money in the house and he wanted to stay so I happily left. I was still on the mortgage so he promised in our agreement to make all the mortgage payments and sell or refinance the property within three years.

Well, I moved out of state and kind of forgot about the house. I moved back to Illinois about five months ago and just learned the bank filed for foreclosure about two years ago. It also appears my ex hadn't made a mortgage payment for many months if not years prior to the bank filing. The property was sold at a foreclosure sale and there is a deficiency judgment against both of us for more than $100,000.


I want to call the bank and tell them about my divorce agreement but my friends are all telling me to call a lawyer first. I am very limited with money and was hoping maybe you could offer some direction.

A. I'll start with the bad news first. The mortgage company (lender) doesn't care about your divorce agreement. As far as the lender is concerned, the relevant facts are that you and your ex executed the mortgage agreement and the required payments were not made. The lender then commenced with foreclosure proceedings, which appear to have culminated in a foreclosure sale and deficiency judgment being entered against you both.

For those not familiar with foreclosure terminology, a deficiency judgment is a judgment entered against the mortgagor (homeowner) for the difference between what was owed and what the lender received at the foreclosure sale.

The lender may now attempt to enforce the judgment against either or both of you. If your ex is gone, unemployed or otherwise uncollectable, enforcement of the judgment will likely focus on you.

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There is, however, some potentially good news. It sounds like your divorce agreement provides that your ex will make all required payments and sell the property within three years. It appears he has violated the agreement. So although no court involved with the foreclosure will help you, the court that entered your divorce judgment may be able to help, subject to one important question … can you locate your ex?

If you can locate him, file a petition in the county where your divorce judgment was entered, asking the court to hold your ex in contempt of court because of his failure to comply with the terms of your divorce judgment. If he has a job or is otherwise financially viable, you may very likely be able to work out terms limiting or eliminating your exposure to the deficiency judgment. Courts frown on parties not complying with judgments and often issue harsh penalties due to noncompliance.

If you cannot locate your ex, sorry to say, it may end up just you trying to work something out with your old lender. At the very least, the judgment has probably impacted your credit score and will likely interfere with your credit needs down the road, such as buying a car, buying a house or obtaining a credit card.

One final thought, if you just learned of these proceedings, it sounds like you were not personally served with the Complaint for Foreclosure. Check the court file to determine that service was properly obtained on you. Without proper service, the judgment entered against you is void.

If you were satisfied with your divorce attorney, contact him or her 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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