Facts:
Separated in January of 2011. STBE granted possession of marital residence pursuant to a Consent Order filed with the court. In Consent Order, I was given only 2 occasions on which to enter marital residence to retrieve all my personal property. STBE has moved out of marital residence and into a new rental. We have been trying to sell home but foreclosure sale date is now looming. STBE has been either unresponsive in giving me required permission to access personal property.
Question:
Once foreclosure sale has occured, are her rights to exclude me from marital residence pursuant to the Consent Order extinguished by the transfer of rights pursuant to the foreclosure sale? Seems to me, once sale has occured she will have lost the right to exclude me and the purchaser’s rights are superior to hers (and mine as well obviously). But if I can work out a deal with new purchaser, will I still have to get STBE’s permission to access the marital residence, or can I enter freely (subject to rights of new purchaser) to get my possession out? I would, of course, still contact sheriff to let him know what I plan on doing but wanted to see if the sheriff’s office would understand the situation or would just look at the Consent Order only and still not let me in. I don’t have time to serve her with a show cause as to why she won’t let me in as new purchaser will almost certainly seek and eviction following the foreclosure sale. Thoughts?
Once the foreclosure occurs, neither of you owns the home, and neither can enter. The consent order will no longer be relevant as you will no longer own the property. You can work with the new owner.
This is a very unusual situation, but I believe you should ask ex again to enter, send a date that you are going in- and say that you will take her silence as permission to enter if she does not respond. You should send this in writing and state why you are seeking to enter.
Thanks Ryan. Sale occured today. Lender’s attorney, while not speaking for his client, couldn’t imagine that GMAC would have an issue with me accessing property prior to issuance of writ to vacate. I think there is about a 30 day window between a foreclosure sale and the writ being issued. I have also called sheriff to get there take on this as the last thing I need is to get arrested for breaking and entering to get my own stuff. The sheriff, being conservative of course, felt she might still have right to exclude prior to issuance of writ. My thinking now is that I want to go to a judge, request an emergency ex parte hearing to get him/her to sign an order stating ex-wife’s rights to exclude expired upon the foreclosure sale so I don’t have to worry about her calling them to toss me in the clink.
My question for you is, how does one get before a judge for a emergency ex parte hearing? Beg the clerk? Any insight is appreciated.
Barring any agreement to the contrary, she likely has the right to exclude you from the property until she’s evicted following the foreclosure. Your recourse is to sue her for return of your personal property.