January 13, 2009

Foreclosure as Means to Revenge

One of the most prominent disputes amongst divorcing couples is the division or disposal of the marital home. And, due to the current economic conditions, homes have been almost impossible to sell and many have fallen into foreclosure. A status most would try to avoid; but may not always be the case when resentful behavior plays a factor, and when we act on emotion instead of sound judgment.

After a long term marriage and subsequent divorce, a trial court had awarded title, for purposes of selling a multimillion dollar home, to the former wife. The house had gone into foreclosure during the divorce proceeding, but the former wife had a buyer for the home. The ex-husband appealed the house being put in the wife’s name. He had a right to appeal as the order concerned entitlement to property. Although the former wife had a buyer for the marital home, the former husband was willing to loose the house to foreclosure rather than sell it and divide its worth. The ex- wife could not get a title company to give clear title, based on the pending appeal. Moreover, the buyer she had, pursuant to their contract, was able to walk away from the deal, if clear title was not obtained, after a certain date.

Typically, the appeals process can be lengthy, sometimes lasting even years. Transcripts of the proceeding below must be ordered and presented to the appellate court, all sides must prepare and submit briefs, once the briefing process is completed, and it’s reviewed by a three- judge panel. Understanding the importance of time, our firm successfully motioned the appellate court to expedite the appeal on behalf of the former wife. In a little less than two months a decision was rendered. We had won the appeal and received a per curium affirmance, which means the appellate court upheld the trial court’s order. The house will not be lost to foreclosure and the closing is now set to go forward.

My job as an appellate attorney is to be knowledgeable in black-letter law, the appeals process and in writing effective appellate briefs; and concisely explaining why the appellate court judges should or should not affirm the circuit court’s decision. Seeking my expertise, as an appellate attorney, allowed for the former wife to silence her ex-husband’s attempt to be spiteful and prevented foreclosure of the marital home.
Robin Bresky, Bresky Law