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Suzielaw827 · Mar 26, 2008, 06:26 PM

Hi,

I have a client who quit claimed a deed of a condo over to his wife when they were in the process of getting a divorce. She was purchasing the property. My husband had to sign the promissory note, but not the mortgage. I think a simple Motion to Dismiss my client from this lawsuit is the way to go. He, his ex-wife and property are all located in Florida. He never lived there and he has no interest in the property. I need to respond by the first of next week. Any guidance would be greatly appreciated. I have worked in health care law and family law and I have never done a Motion to Dismiss. :confused: Does anyone have a sample they would be willing to share?

Many thanks!
Suzanne

George_1950 · Mar 26, 2008, 07:46 PM

Can you provide more detail about the lawsuit? How many defendants are there, and what is their relationship to the plaintiff(s)? Why must you respond by the first of next week? Also, who "...never lived there and ...has no interest in the property"?

Suzielaw827 · Mar 26, 2008, 08:04 PM

Originally Posted by George_1950

Can you provide more detail about the lawsuit? How many defendants are there, and what is their relationship to the plaintiff(s)? Why must you respond by the first of next week? Also, who "...never lived there and ...has no interest in the property"?

The bank is foreclosing on the property. My client and his ex-wife were married (but in the midst of divorce) when she brought the property. Florida law requires that my client sign the promissory note and quit claim the deed to his then wife so that she could purchase the property. He never lived at the property, never made mortgage payments, HOA fees, never received a tax advantage and he never paid property taxes. When I refer to "he", I am referring to my client. I think the bank should be ordered to dismiss the complaint against my client.

Thanks for any answer you can provide,
Suzanne

George_1950 · Mar 26, 2008, 08:41 PM

Your client is a cosigner on a note; aren't cosigners routinely sued when there is a default? What is the basis for the motion to dismiss?

Katiegirlisme · Mar 26, 2008, 09:29 PM

Because the wife purchased the property before she was divorced, the lender would have required that the husband quit claim his interest in the property to the wife-this is true in California and likely in all other community property states. (I don't know if Florida is a community property state).

I've never heard of a lender/bank requiring the spouse (in the middle of a divorce) to sign on a note/loan nor have I ever heard of a State forcing anyone to sign on a loan/note. The only thing that makes sense is that the husband was nice and decided to help her get this loan by co-signing the note/loan.

If this is the case, then he is liable, regardless if he signed a quit claim. If the husband's name is on the loan, then he shouldn't have quit claimed the property over to the soon-to-be ex-wife. And if his name is on this loan there is no merit to file a motion to dismiss.

This is just my opinion as I do not live in Florida. It doesn't make sense, though.

:)

Suzielaw827 · Mar 27, 2008, 08:35 AM

Originally Posted by Katiegirlisme

Because the wife purchased the property before she was divorced, the lender would have required that the husband quit claim his interest in the property to the wife-this is true in California and likely in all other community property states. (I don't know if Florida is a community property state).

I've never heard of a lender/bank requiring the spouse (in the middle of a divorce) to sign on a note/loan nor have I ever heard of a State forcing anyone to sign on a loan/note. The only thing that makes sense is that the husband was nice and decided to help her get this loan by co-signing the note/loan.

If this is the case, then he is liable, regardless if he signed a quit claim. If the husband's name is on the loan, then he shouldn't have quit claimed the property over to the soon-to-be ex-wife. And if his name is on this loan there is no merit to file a motion to dismiss.

This is just my opinion as I do not live in Florida. It doesn't make sense, though.

:)

Hi,

Thanks for all the information. Florida is not a community property state but the law does require that if you are married, both spouses must sign the promissory note but not the mortgage instrument and the non-purchasing spouse must quit claim the deed. I don't do motions to dismiss in family law. Do you know where I could get a template. I can fill in Florida Statute as indicated above.

Many thanks for all your help,
Suzanne

Dr D · Mar 27, 2008, 09:57 AM

If in fact that is the law in Florida, it is beyond bizarre. How can the ex-husband be obligated on a property that he expressly signed away any interest in? In AZ a Discaimer Deed is used for that purpose because it is a Community Property state.

Some lenders will allow a spouse who is not on the loan because of credit issues to be on the deed to the property. In those cases the non-borrower spouse does not sign the promissory note, but does sign the Security Instrument (a Deed of Trust in AZ), which insures the right of the lender to foreclose in event of default.

I hope that LisaB (an attorney) finds this thread, and sheds some light. The whole thing makes no sense to me.

Suzielaw827 · Mar 27, 2008, 10:22 AM

Originally Posted by Suzielaw827

Hi,

Thanks for all the information. Florida is not a community property state but the law does require that if you are married, both spouses must sign the promissory note but not the mortgage instrument and the non-purchasing spouse must quit claim the deed. I don't do motions to dismiss in family law. Do you know where I could get a template. I can fill in Florida Statute as indicated above.

Many thanks for all your help,
Suzanne

Sorry, I misspoke. He signed the mortgage instrument but not the promissory note. Florida is not a community property state by the law in Florida is, even if you are divorcing, the other spouse must sign the mortgage even when quit claiming the deed. He did sign the mortgage but not the promissory note. The Motion to Dismiss against him (as one of the defendants) would be based on this requirement. Does anyone have a template of a Motion to Dismiss. I don't do litigation and when I practiced Family Law, we just did not do Motions to Dismiss for obvious reasons.

Thanks to anyone who can help me out,
Suzanne

George_1950 · Mar 27, 2008, 10:43 AM

Have you looked in the civil practice act?

Suzielaw827 · Mar 27, 2008, 10:45 AM

Florida Rules of Civil Procedure. They have everything but.. .

JudyKayTee · Mar 27, 2008, 01:10 PM

[QUOTE=Suzielaw827]Hi,

Thanks for all the information. Florida is not a community property state but the law does require that if you are married, both spouses must sign the promissory note but not the mortgage instrument and the non-purchasing spouse must quit claim the deed. I don't do motions to dismiss in family law. Do you know where I could get a template. I can fill in Florida Statute as indicated above.

Why don't you just call a colleague in Florida and get the info and have him/her file the necessary documents? Happens all the time here in NYS when there's a question on an out-of-State matter. Tons easier than posting on a message board and filling in the blanks on a form.

I did notice you said "my husband" had to sign the promissory note - is your husband the client? All the more reason to seek the advice of a Florida Attorney.