Can the Court Order Me to Give Up My Interest in a Home so the Owner Can Get a Loan?
Full Question:
Answer:
The answer will depend on all of the circumstances in your case. It is unclear where your 40% interest derives from, however, if it was part of your property settlement in your divorce, the court may use its contempt power to force you to comply with the terms in the divorce decree. You may make a contract on how to divide property that may be incorporated into the divorce decree and therefore becomes enforceable through the contempt power of the court. If it is not merged into the divorce decree, it is merely a private agreement and would need to be enforced through a breach of contract lawsuit. The trial court's discretion will not be disturbed on appeal without a showing of clear abuse, and the court has wide discretion in making an equitable distribution.
If the court ordered her to sell the house as part of the probate process and she fails to do so, it is possible that she may be held in contempt. If she is an executor or adminsitrator of the father's estate, she has a fiduciary duty to act in an heir's best interest. Fiduciaries, such as executors, owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.
The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.
Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:
(1) The passing of the statute of limitations for filing the claim.
(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)
(3) Lack of standing
(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)
(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)
We suggest you contact a local attorney who can review all the facts and documents involved.
