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Legal matters

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Original poster

getting nam of a mortgage after divorce

20 replies

Charlie97 · 27/02/2015 09:20

A friend divorced some years ago, it was a dreadful divorce he was physically threatening, she had to move a long way away to be safe.

It now transpires that during the divorce settlement, he

was awarded a flat they owned (second property), they had a joint mortgage on it

Whatever happened at that time, she did not take her name off that mortgage, obviously the building society were not keen that she took her name off as I'm not sure he was earning sufficient to fully afford the loan at that time (engineered to avoid maintenance).

She is petrified of him. Does not want to talk to him, but she has to move on, she is not making mortgage payments she is, but it's still on her credit file and she needs to get off it.

Does anyone know how she can go about this?

It's so unfair she has the liability but won't get any of the equity!

OP posts:

Original poster

Charlie97 · 27/02/2015 09:21

He is making mortgage payments

OP posts:

Collaborate · 27/02/2015 11:28

He will have promised the court that he'll use his best endeavours to get her released. He should have applied for transfer of equity (effectively mortgage account into his sole name) shortly after the order was made, so it may be that he did but the lender turned him down. If his circumstances have changed, or e.g. the loan to value ratio has improved, or the lending criteria changed, he may be able to apply again. I have no case law to quote, but I have always taken such promises (known as undertakings) to be an ongoing obligation.

Either she or her solicitor need to contact him to invite him to apply again for a TofE.

Original poster

Charlie97 · 27/02/2015 12:45

Many thanks collaborate, the thing is his situation regarding work etc has got worse if anything. She would presumably be be liable for the debt if he defaults? She has just met someone new (after 8 years) which has stirred up more issues and seems to have woken his venom up again. He has threatened defaulting on the mortgage so cause her an issue, she has a new flat so has an asset, he has this flat which he rents out and he rents elsewhere.

It seems so unfair that she could end up with bad credit etc, whilst he will get any residual equity from the property.

I believe there is sufficient equity in that property to repay the mortgage with maybe a little leftover.

Also, although I don't think this is an issue, if there are any monies still owed after the repossession then she would be liable but not for the equity,

OP posts:

titchy · 27/02/2015 15:55

There wouldn't be any equity if there was still money owed.

JillyR2015 · 27/02/2015 15:59

You need to find out if there was a final court order or court sealed consent order on the finances and read it and say what is says about this as that is probably where the answer lies.

Original poster

Charlie97 · 27/02/2015 16:07

Titchy there is equity currently, the mortgage is less than the vlaue of the property, therefore the equity is there.

I will get her to look at the official documentation and see what is states.

Thank you

OP posts:

JillyR2015 · 27/02/2015 17:05

It sounds like there was a financial order as it says "divorces settlement". If that was decided by the court or sealed by the court it is the document which applies. If they just had an informal agreement not approved by the court they still have to finalise the finances. If there is a court order it is likely to say something about the mortgage. If he has not taken her off the mortgage and should have and has breached the order she may need to go back to court to get it changed and if the lender will not agree perhaps even get an order he sells the place

Original poster

Charlie97 · 27/02/2015 17:27

Thanks Jilly, I will ask her to check, if it was left for them to sort (she was totally stressed at the time of the divorce, he had been mentally and physically abusive) and they didn't, can anything be done now?

As far as she is concerned the flat is his, she doesn't want it but wants her name of the mortgage to be able to move on and get other credit etc.

OP posts:

prh47bridge · 27/02/2015 17:28

As Collaborate says, the court will not have ordered him to remove her from the mortgage. That isn't in the court's gift. The mortgage provider is not party to the proceedings so the court cannot tell them what to do. The most the court can do is order him to use his best endeavours to have her released from the mortgage. If he has tried and the lender refused he is not in breach of the order although if the situation has changed he ought to try again.

It is very unlikely that she could persuade the courts to make him homeless just to get her name off the mortgage.

fuzzywuzzy · 27/02/2015 17:36

If he defaults on the mortgage surely the bank will move to re-possess the property. That will get her of the mortgage completely.

The courts as far as it was in my case cannot remove a joint party from a mortgage.

Original poster

Charlie97 · 27/02/2015 17:41

Thanks bridge, he's not living in this property he lets it out and rents elsewhere.

Fuzzy, agreed she would be off the mortgage but with a massive black mark on her credit file.

It just seems so unfair that after eight years, she has the liability but when he sells, she gets none of the equity.

OP posts:

Original poster

Charlie97 · 27/02/2015 19:10

Ok order says

Release respondent from the mortgage with xxxx on the property at xxxx on transfer of the property.

My guess is nothing has been done, no transfer, no release.

So can she now force the sale of this property? Is she now entitled to equity from it?

OP posts:

Collaborate · 27/02/2015 19:14

You've only typed part of the relevant paragraph. What does the whole para say? It seems to start mid sentence so makes no sense as an order.

Collaborate · 27/02/2015 19:15

Also copy any undertakings (will usually include the phrase "best endeavours ").

Original poster

Charlie97 · 27/02/2015 19:19

To secure the applicants release from the mortgage in favour of Xx and secured on Xxx fully indemnifying the applicant in respect of all liability there under forthwith upon completion of the flat as hereinafter provided

Hopefully that makes more sense, thank you for your time and trouble

OP posts:

Original poster

Charlie97 · 27/02/2015 19:20

Ah she only picture messages me that paragraph, can get more tomorrow

OP posts:

Original poster

Charlie97 · 27/02/2015 19:22

Sorry missed a bit

On completion of the transfer of the flat

OP posts:

choirmumoftwo · 27/02/2015 20:49

I was in this situation many years ago and the bank would not release me from the mortgage as my ex had no source of income. The lender needs to make sure that someone is liable for the debt and unfortunately, this is your friend.
Does the lender know the flat is being rented? Your friend and her ex may be in breach of contract if they (or he, in reality) haven't notified them.

Original poster

Charlie97 · 27/02/2015 21:32

I am certain they won't choir, how did you get out of the situation? It seems madness to me and with the ex having control.

OP posts:

choirmumoftwo · 01/03/2015 19:08

Ex cashed in a pension and we cashed in the endowment policies associated with the mortgage. This made enough of a hole in the debt for the lender to agree to release me as the equity in the property was far greater that the remaining mortgage. I walked away with nothing in the end but it was so worth it and I now have a fabulous husband and family. Ex has nothing but the house, but that's another story entirely!

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