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Can anyone knowledgeable give some advice about charges on property and repossession?

(16 Posts)
BerylStreep Tue 06-Sep-16 21:18:01

I would be really grateful if anyone could give me a steer with some advice about a money owed on a house that is being repossessed.

It's my sister's situation, and I don't want to give too many identifying details, but she & her DH are going to court tomorrow and I'm really worried that they haven't sought independent legal advice.

Brief history: Her DH inherited his parents' house when his father passed away, although there was a clause in the will that his Mum was to live in the house for the rest of her life, then ownership would pass to him.

A number of years ago, DH's brother persuaded the DH to sell the house to him for £80k. The house at that time was worth £400k, but for some reason the DH agreed to sell it. There was a written contract, drawn up by the brother's solicitor, stating that the money would be paid within 3 years. The DH didn't seek any legal advice at the time.

The brother didn't pay the money over, and in the interim, secured a mortgage on the house (and in the process persuaded the Mum to be joint mortgagee).

DH went to court where the court awarded him the money (and possibly costs? I'm not sure. Costs were in the region of £5k I think). However the brother still didn't pay.

So from what I can understand, the mortgage wasn't paid, and the house is in the process of being repossessed. My sis has said they are going to court tomorrow to try to persuade the court to allow them to sell the house, rather than it being repossessed. The plan is to split the equity 50 / 50 between the Mum and the brother, but with the money owed coming out of the brother's share to be paid to the DH directly by the solicitor (not clear by which solicitor).

There is about £150k equity in the house.

I'm really nervous about this. My sis and her DH haven't sought any independent legal advice, although my sis says that the Mum's solicitor said it should be fine. I think the Mum's solicitor screwed them over in doing the conveyancing for the mortgage knowing that £80k was owed on the house, so am a bit dubious about his advice.

I know it is really cheeky basically asking someone on the tinternet to give advice, but would be really grateful for any knowledgeable suggestions. I only found out about the court today, and they are going tomorrow. I know it's not my business, but my sis and her DH are skint and I worry that they'll be screwed again. The money would be life changing for them.


MyKingdomForBrie Wed 07-Sep-16 08:00:49

Wow what a huge mess. He needs a solicitor of his own, no way can the mum's solicitor be trusted. If the money wasn't paid the house should never have been transferred to the brother in the first place, how the mother got on the mortgage with no legal interest besides her lifetime right of residence is also beyond me.

He needs to go to court, profess his complete lack of understanding of the situation and make it clear that he is unrepresented and has been defrauded of his house, then get the matter adjourned until he has taken legal advice.

Bellaposey Wed 07-Sep-16 08:05:54

The difficulty is that it sounds like the property has already been transferred to the brother I.e. he is now the legal owner. This would be the only way he could mortgage it. If that is the case, then DH has no legal interest in the property and has no right to sell. His only claim is for the money from brother unpaid under the contract.

They really must speak to a solicitor.

MyKingdomForBrie Wed 07-Sep-16 10:38:40

If he was made the legal owner fraudulently there may be a chance for restitution. Highly unlikely I admit but the Land Reg is not the final arbiter, the courts can reverse a transfer. If the money didn't get to your DH then completion didn't occur. I'm not a litigator though so I cannot advise on the way forward (unhelpful) except to say he needs a lawyer and he needs to let the Judge know today that ownership is disputed.

Tiggeryoubastard Wed 07-Sep-16 10:58:55

Sorry but the court won't listen in this case. The fraud is separate to the business at hand, they'll need to act separately. Neither will they have any sway over selling the house. It's not legally theirs, so they can't ask to manage the sake. It's really nothing to do with them in the eyes of the court. I'd be very worried for your sister - your Bil sounds like a liability.

BerylStreep Wed 07-Sep-16 13:37:39

Thank you all - it look pretty grim, doesn't it?

BerylStreep Wed 07-Sep-16 13:42:18

I think it is the Mum who is appearing at court today to ask for the house to be sold, not repossessed.

Can I ask one final question? Assuming there is agreement to sell the house, and it actually sells, by what process does the money get distributed? Can the DH specify that he gets dibs on the equity, even though he is no longer named on the deeds? He has said the solicitor will get the money, and he will distribute it. Would he need to get an enforcement of judgement warrant to ensure he gets access to the equity?

Tiggeryoubastard Wed 07-Sep-16 13:57:06

No of course not. He has no rights over the house at all. He can't specify anything. He's not on the deeds, it's not his house. To get any money back he'd need to take completely separate legal action.

Tiggeryoubastard Wed 07-Sep-16 13:58:02

Has he got a judgement against the brother?

BerylStreep Wed 07-Sep-16 14:10:09

Yes, he has already taken legal action and the court ruled he was entitled to the money (sorry for lack of legal phrase). Brother still hasn't paid the money, so I think the next stage should be an enforcement of judgement warrant (not that I really know very much).

The DH seems to think that just with the judgement itself, it will entitle him to a share of the equity.

Tiggeryoubastard Wed 07-Sep-16 14:12:24

Yes he needs legal advice to enforce. And quickly. He really is thick, isn't he.

BerylStreep Wed 07-Sep-16 16:05:11

I just think there is a combination of being a bit naive, and being very trusting. In a way it is what makes him such a lovely bloke, but it saddens me to see both of them struggling for money when it could have all been avoided with some decent legal advice.

Tiggeryoubastard Wed 07-Sep-16 16:08:14

Oh Beryl sorry but that's way beyond naive. I'd be bloody worried about my sister if I was you.

BaronessEllaSaturday Wed 07-Sep-16 16:13:34

The only way to get the money he is owed out of the house is if he enforces judgement of the debt with a charge against the property but that is a completely separate action to the mum trying to get permission to sell rather than repossess. They need to take legal advice quickly from another source preferably a firm of solicitors who deal with debt issues.

Tiggeryoubastard Wed 07-Sep-16 16:15:50

Think it'll be too late to get a charge on the property if possession is granted to the bank.

TimTamTerrier Wed 07-Sep-16 16:49:56

It sounds like his whole family are naive at best, crooked at worst. Which is probably why his father left him the house and not his mother or brother, he didn't want his widow to be homeless.

I wouldn't feel too sorry for your BIL, if he had abided by his father's will he wouldn't have received any money until his mother had died (and even then there was a possibility that the money would be clawed back if his mother needed residential care). He sold his mother's security, either because he is too weak/nice to say 'no' to his brother or because he wanted some money up front instead of waiting an indefinite period for a larger sum. I feel sorry for your sister though.

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