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re: Husband cheated and left wife. Before leaving, he took out a HELOC on their house

Posted on 11/28/17 at 9:30 pm to
Posted by TBCommish
Houma
Member since Sep 2006
169 posts
Posted on 11/28/17 at 9:30 pm to
quote:

summary judgement in rem only is awarded against wife.


This is the part that seems contradictory. If the Judgment is 'in rem' then it would be against the property only and not 'against wife'.

So, I'm going to make some assumptions in effort to answer what I think happened.

Bank forecloses/sues and gets a personal Judgment (via Summary Judgment) against both (ex)husband and (ex)wife.

The house was security for the HELOC.

Divorce granted and there is always a rebuttable assumption that debts created during the marriage are community property.

Wife contests that the HELOC is a community debt despite signing the paperwork. Enough evidence is given inside a hearing to prove that the HELOC was a separate debt made by the (ex)husband and only benefited his separate personal interests.

Bank is informed of finding. Bank still has right against the security interest (which is a community asset), but, has to acknowledge that she doesn't have any personal obligation to pay the debt. As a result, the Judgment against her is amended to reflect the above.
Posted by TSLG
Member since Mar 2014
6724 posts
Posted on 11/29/17 at 1:59 am to
quote:

This is the part that seems contradictory. If the Judgment is 'in rem' then it would be against the property only and not 'against wife'.

So, I'm going to make some assumptions in effort to answer what I think happened.

Bank forecloses/sues and gets a personal Judgment (via Summary Judgment) against both (ex)husband and (ex)wife.

The house was security for the HELOC.

Divorce granted and there is always a rebuttable assumption that debts created during the marriage are community property.

Wife contests that the HELOC is a community debt despite signing the paperwork. Enough evidence is given inside a hearing to prove that the HELOC was a separate debt made by the (ex)husband and only benefited his separate personal interests.

Bank is informed of finding. Bank still has right against the security interest (which is a community asset), but, has to acknowledge that she doesn't have any personal obligation to pay the debt. As a result, the Judgment against her is amended to reflect the above.


I wouldn't bet against your theory.
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