Divorce, Fraud And Home Sale

Q: I have recently gone through a divorce. The judge ordered that our home be sold. Our two lawyers were ordered to bond the sale and place the home for sale with a Realtor.

I received a letter six months later from my lawyer stating that the house was sold by my ex-husband and that there was never a bond placed.

I never signed the deed for the sale of the home. I was in another state taking care of my dying father. I received a statement from my ex-husband’s lawyer “Proceeds from Real Estate Transactions” which stated that I had made a profit from the sale of the home. I later received a check from that attorney for the profit from the sale. The statement indicated that my profit was $92,750 but the check was for $18,000.

Who do I go after? My ex-husband for forging my name on the deed. He told me that he forged it because the judge had ordered it sold and so he did and signed my name. Or, what about suing his lawyer for sending me a fraudulent IRS 1099-S form or for allowing the sale without my signature?

Who can I sue for all of my belongings that were thrown in the trash (including our children’s baby pictures and all their belongings)?

Thank you for all of your help I am at a loss as to what to do. I did go to a different lawyer and he said that my case was too messed up to take.

A: Let’s start with the sale of your home. The one thing you did not state in your letter was whether the sales price for your home was acceptable to you. If the sales price was fine, we can address some of your other issues.

When you sell a home, you may get an IRS 1099-S. The closing agent is required to report the sale of real estate to the Internal Revenue Service and this document is the required form for disclosing to the seller of the home — that would be you in this case — and the IRS the sales price for the home. In many cases that form is not used when the sale involves the sale of a primary residence under a certain value. The IRS 1099-S form is based on the gross sales price of the home and has nothing to do with the profit on the sale of the home.

If you and your former husband were under court order to share the sale of the home equally, your 1099-S form would reflect 50 percent of the sales price for the home. Based on your information, it would seem your sales price was $185,500 and the IRS form sent to you would show a gross amount paid to you of $92,750. That should explain the first number you raised in your question.

But you should have also received a closing statement from the closing attorney indicating the sales price and showing all of the costs of the sale, including real estate commissions, taxes, payments to lenders for existing mortgages, payments to the closing agent and other fees and expenses. With this information in hand, you should be able to determine the sales price for the home and your share of the proceeds from the sale of the home. Finally, having the closing statement will allow you to determine how the $92,750 figure was obtained.

The statement would also show what the bottom line was from the sale of the home after all of the expenses. If the bottom line number was $36,000 and your check was for $18,000, it should mean that half of the proceeds from the sale of the home were sent to you.

One thing to remember, for you to actually compute the profit from the sale of the home, you need to know what you paid for the home, the amount of money you invested in capital improvements to the home, and the costs to purchase and sell the home. If you have this information, you can come up with a number that would show your profit from the sale of the home. Closing agents never compute the profit from the sale of the home, they only work with the cash that flows into the closing and out of the closing.

You might need to sit down with an accountant or someone you know and trust that can review the documents you received to make sure you understand the numbers and statements you received.

If after you review the document you find out that the closing agent failed to pay you your share of the proceeds from the sale of the home, you will have to go to your divorce attorney and reopen the divorce proceedings to force your former husband to give you what you were entitled to under the divorce settlement.

Now let’s turn to the ugly part: all of your stuff was thrown out. Divorces frequently are ugly. If your former husband forged your name on the deed and threw out your stuff, it’s clear that your situation is past ugly.

Unfortunately, these circumstances may be the result of your inability to take care of some of your personal issues relating to your home. On a personal level, your attention was turned toward a family member why was dying and needed your care and assistance.

Even though you were away from the house for six months, it was still your home and the personal belongings in the home were yours. You may certainly have a right to sue your former husband for his actions and for your loss.

Still, you should have kept in touch with your attorney and the real estate agent involved in the sale of your home. You should have asked other family members or trusted friends to keep an eye out on what was going on with the home.

The real estate agent could have kept you in the loop as to the proposed sale of the home and you could have a chance to prevent the loss of your personal property.

Unless your former husband’s attorney or closing agent knew that your former husband was forging your signature, they probably are not responsible for the loss. Your former husband is likely the one party legally responsible for the forgery.

Most legal documents used in real estate transactions have to have the signature of the person that signed the document notarized. You may want to find out the name of the person that notarized your signature and make a claim against them.

In many states notaries are required to have a bond to insure that their actions are proper. If you sue the notary for the fraud you may get some money for your loss. Your recovery may be limited but it may give you something for the loss.

Finally, your ex-husband’s actions in forging your name in the guise of following the court’s order to sell the home, may give you the right to reopen the divorce action and claim additional funds from your husband.

You may want to talk to your divorce attorney on this issue and if he is not helpful, then you should talk to a litigator in this matter. One thing you should consider is the value of your lost personal property. If the value is low (even if the items were sentimental and important to you), it may cost you more to pursue your ex-husband or the notary than the value of the goods lost. Only you can make that determination.

Jan. 21, 2008.


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