When co-owned property results in a partition action, the court or partition referee may require evidence of who paid the mortgage to divide the proceeds of sale. This article explains how to meticulously gather and organizing documents, including digital payment records between co-owners, to allow co-owners to present a compelling case to prove and recover unequal mortgage payments as an offsets in a partition action.
Will Partition Accounting Allow Co-Owners to Recover Unequal Mortgage Payments?
Since “[e]very partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest,” unequal payments can be recovered in the partition and sale of the property.[1]Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1035.
The California partition statute that allows the court to distribute the partition proceeds from the sale of a property in an equitable manner is California Code of Civil Procedure 872.140, which provides that:
The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.
California Code of Civil Procedure 872.140
“When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate he is entitled to be reimbursed his entire advancement before the balance is equally divided.”[2]Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal. App. 2d 539, 541.
In Wallace v. Daley, a California court found that “[e]very partition action includes a final accounting according to the principles of equity for both charges and credits upon each cotenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.”[3]Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035 Talkov Law’s experienced partition attorneys can expedite the process of the accounting, including through a partition referee report on offsets and accounting.
What Type of Evidence Proves Mortgage Payments?
- Mortgage Statements: Collect all monthly mortgage statements showing payment amounts, dates, and remaining balances. These statements serve as direct evidence of your financial contributions.
- Bank Statements: Obtain bank statements that reflect the mortgage payments being deducted from your account. These statements provide additional proof that the payments were made from your account.
- Venmo Transactions: If you used Venmo , Cash App, or other online methods to make mortgage payments, include payments to another co-owner, transaction histories showing payment amounts, dates, and recipients. It is important that these transactions are labeled accurately to reflect their purpose.
- Payment Receipts: Gather any payment receipts provided by the mortgage lender. These receipts can further corroborate your payment history.
- Cancelled Checks: If payments were made by check, include copies of the front and back of cancelled checks. These checks are can prove that the payments were processed and accepted by the lender.
- Communications with Lender: Include any correspondence with the mortgage lender regarding your payments, such as emails, letters, or notices. This documentation can provide context and support your claims.
- Joint Ownership Agreement: If there is a written agreement between co-owners regarding mortgage payments and other expenses, this document should be included. It clarifies the responsibilities and expectations of each co-owner.
- Affidavit of Payment: Prepare a sworn affidavit detailing your mortgage payments, including amounts, dates, and any relevant circumstances. This legal document can strengthen your position in court.
- Proof of Additional Contributions: If you have made extra payments or contributions toward the mortgage principal, gather evidence of these transactions. This can include additional receipts, bank statements, or lender acknowledgments.
Consult with a partition attorney to ensure you have all necessary documentation and understand how to present it effectively. A partition attorney can provide guidance tailored to your specific situation and help you navigate the partition process.
Talkov Law’s Partition Attorneys Can Help
A partition action may be the only way to resolve co-owner disputes and recover contributions to a co-owned property that you have made. By meticulously gathering and organizing these documents, including digital payment record transactions, you can present a compelling case to prove your mortgage payments in a partition action. Talkov Law’s partition attorneys specialize in navigating the complexities of co-ownership disputes and helping co-owners resolve co-ownership disputes. As California’s #1 team for filing partition actions, Talkov Law’s partition attorneys are equipped to provide the guidance and representation you need. For a free attorney consultation, call (844) 4-TALKOV (825568) or reach out online today.
References
| ↑1 | Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1035. |
|---|---|
| ↑2 | Southern Adjustment Bureau, Inc. v. Nelson (1964) 230 Cal. App. 2d 539, 541. |
| ↑3 | Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035 |
