Introduction Into Domestic Relations Issues 8/24/2016. Title Abstract Title Examination Title Product Abstracts involving domestic relations:

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1 Tales frm the Dmestic Relatins Trenches OHIO LAND TITLE ASSOCIATION September 13, 2016 Buckeye Land Title Cmpany 9/13/ Buckeye Land Title Cmpany 9/13/ Intrductin Int Dmestic Relatins Issues Title Abstract Title Examinatin Title Prduct Abstracts invlving dmestic relatins: Separatin Agreement based in cntract law Decree prvides remedy f cntempt fr breach Decree can als cntain a self executing prvisin. The effect is nt derived frm case law r statute. Decree is effective when entered r jurnalized nt when dated Ohi Title Standard 3.6 Prblem C: A title bjectin shuld be made where the deed recites that the grantr is divrced and the recrd f the divrce prceedings is nt available fr examinatin. Usually cmes up when a mrtgage f recrd indicates a spuse What is recrd and what cnstitutes examinatin? Buckeye Land Title Cmpany 9/13/

2 Kniebbe v. Wade Citatin: 161 Ohi St. 294 (1954) Facts: H and W execute mutual deeds t transfer 4 lts but the deeds were nt recrded H died intestate; 8 days later W recrds the deeds Daughter (Kniebbe) files an actin fr declaratry judgment Hlding: Executin and delivery are required it is the delivery that gives the instrument frce and effect Delivery must be cupled with the present, immediate, and uncnditinal cnveyance f title Recrding is presumptive delivery Delivery can ccur withut recrding if there is sufficient nn self-serving evidence placed n the public recrd Buckeye Land Title Cmpany 9/13/ Buckeye Land Title Cmpany 9/13/ A. Tales Frm The Trenches - Dwer Dwer endws a spuse with an estate fr life in ne-third f real estate wned at any time during the marriage (as lng as spuse has nt released r been barred frm dwer). Dwer terminates upn the granting f a divrce (RC Sectin (B)) Dwer terminates upn a decree f disslutin (RC Sectin (B)) Decrees are effective when they are jurnalized r entered Wells Farg Bank NA v. Kessler, 2015-Ohi H is sle title hlder; W des nt execute mrtgage t release dwer Divrce in 2010; freclsure against H in 2013 W argues that her dwer did nt terminate because H cmmitted acts f adultery Crrect law wrng party Buckeye Land Title Cmpany 9/13/

3 A. Dwer - cntinued Bank f America NA v Michk, 2015-Ohi W signs deed t an wner befre Michk t release dwer but W s name is nt included in the acknwledgment Freclsure against Michk Bank alleges that the W had n utstanding dwer due t mutual mistake f fact in the defective acknwledgment (the parties intended t release dwer) Michk admitted the allegatin s the curt hlds that Bank is entitled t a declaratin that the deed was valid t release dwer Citi, Inc. v Richey, 2015-Ohi-4154 H signed mrtgage t release dwer but did nt sign nte r settlement statement H was nt a brrwer Curt held that H was nt entitled t ntice f default prir t acceleratin because H was nt a brrwer (even thugh that term is used in the FNMA Unifrm Mrtgage) Buckeye Land Title Cmpany 9/13/ Delay in Recrding Buckeye Land Title Cmpany 9/13/ B. Tales Frm The Trenches Terminatin f Survivrship RC Sectin states that survivrship terminates upn divrce r disslutin unless the decree specifically references that the survivrship tenancy shall cntinue after the terminatin f the marriage. Citimrtgage, Inc. v. Brwn, 2015-Ohi H and W wn as jint tenants with rights f survivrship. W signs mrtgage nly t release dwer. W dies during a pending freclsure. A mrtgage in Ohi is a cnveyance nt merely a lien The interest f the grantee (here the mrtgagee) is cnditined upn the survival f W; since W died (she did nt grant the mrtgage) the bank cannt freclsure her interest This is nt a divrce case; but it makes the pint abut terminatins Buckeye Land Title Cmpany 9/13/

4 Until Death D We Part Buckeye Land Title Cmpany 9/13/ Nunc Pr Nthing Clermnt Cunty Dmestic Relatins H and W wned as jint tenants with rights f survivrship H and W btain a divrce ending the survivrship tenancy by peratin f law under RC Sectin (C)(5) H and W remarry W dies and H attempts t avid prbating W s nehalf interest in the real estate by filing a Nunc Pr Tunc (nw fr then) entry amending the decree t state that the Curt specifically maintains the jint survivrship interests f the parties. That s a Nunc Pr Nthing... Buckeye Land Title Cmpany 9/13/ C. Tales frm the Trenches Judicial Liens and the Sipka Case Citatin: 185 Ohi App.3d 218 (Trumbull, 2009) Facts: H and W divrce and the separatin agreement prvides that W shall receive $25, as her share f the real estate H t refinance within 90 days r W shall retain a lien fr $25, bearing 6% interest fr 36 mnths W eventually gives a quit claim deed t H with reserving a lien fr $25, with 6% interest pursuant t the Separatin Agreement. H defaults. There is a freclsure. W (nw Ex-W) is nt a party. Dietls purchase the freclsed prperty W attempts t enfrce her lien against the prperty nw wned by Dietls Dietls seek declaratry judgment prtectin Buckeye Land Title Cmpany 9/13/

5 Sipka Case - cntinued Hlding: Lien was a cntract between the parties created by the Separatin Agreement and became enfrceable as cntempt under the decree Judgment liens are creatures f statute RC Sectin prvides the prcedure fr cnverting judgments int liens The quit claim deed did nt give ntice except t reference a lien that upn further examinatin wuld reveal that t an examiner that there was n lien actually filed under RC Cncurring pinin: the ONLY way t create an encumbrance between tw parties related t the real estate is a mrtgage under RC Sectin Judgment liens are fr third parties. Dissenting pinin: W wned the real estate befre the divrce. The deed reflects her agreement t cnvey the real estate less an interest wrth $25, which she retains. A deed intending t secure perfrmance f an bligatin will be treated as an equitable mrtgage. W, therefre, shuld have received ntice f the freclsure! Buckeye Land Title Cmpany 9/13/ Sipka Case - cntinued Caveats: Beware f a pssible mt issue W wuld nt have been paid frm the freclsure because the primary creditr with pririty was nt fully paid frm the prceeds. If it s a mt issue, is it dicta? Vickry v. Vickry, 44 Ohi App. 3d 210 (Fairfield, 1988) hlds that a mrtgage referenced in a Separatin Agreement is nt ntice and is fraudulent t bna fide purchasers fr value if it is nt recrded under RC Sectin (A). If yu are an abstractr, take the time-hnred CYA path and reprt the terms. Afterall, attrneys and title agents are paid big bucks t be indecisive. Final thught: S, why dn t dmestic relatin attrneys file certificates f judgment as a regular curse? Electin f remedies it is easier t file a cntempt mtin than a freclsure. Buckeye Land Title Cmpany 9/13/ D. Tales frm the Trenches The Self- Executing Decree Buckeye Land Title Cmpany 9/13/

6 Liens Against H Buckeye Land Title Cmpany 9/13/ Arguments... A decree acts as a cnveyance and upn its entry is effective as ntice t the wrld. Taylr v. Byd, 3 Ohi 337 (1828). In re Estate f Dinsi, 159 Ohi App. 3d 98 (Mahning, 2004) divrce and W gets the real estate; decree has a self-executing prvisin H dies in 1998 and in 2002, W recrds the decree after the heirs f H recrded a Certificate f Transfer frm H s estate The curt held that the entry f the decree gave ntice f W s wnership; the recrding f the decree was merely a ministerial functin, nt a substantive ne But... What if there are cnditins? Des title transfer nly after thse cnditins are met? If a decree acts as the cnveyance, then why is it necessary t put selfexecuting prvisins in the decree in the first place? Buckeye Land Title Cmpany 9/13/ Buckeye Land Title Cmpany 9/13/

7 Sme Tricks f the Trade... Ohi s Curative Statute SB 257 prpses a 4-year perid and creates presumptin (rebuttable) f validity In re Messer [Slip Op. N Ohi-510] Expiratin f mrtgage liens. RC Sectin Affidavit n Facts Relating t Title. RC Sectin Re-recrding use sparingly Quiet Title Actins under RC Sectin Ohi Title Standards New tl fr btaining mrtgage releases Am Sub HB 201 Nw RC Sectin effective 3/23/15 Death vests! Failure t file a Certificate f Title ( (D)) Affidavits f Heirship (317.22(B)) Buckeye Land Title Cmpany 9/13/ Tales frm the Dmestic Relatins Trenches OHIO LAND TITLE ASSOCIATION September 13, 2016 Buckeye Land Title Cmpany 9/13/