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Original poster

Mortgage - ex misled court

78 replies

SultansOfSwing · 05/03/2021 14:33

DH separated from first wife in 2010, divorce finalised in 2013. He was happy for her to have the matrimonial home if she could take on mortgage herself. Court agreed she could keep the house and relinquish him of all financial responsibility. We married in 2014 and bought our house in 2015. When we applied for mortgage, husband found that his ex had not told the lender they had divorced nor had she made any application to remortgage in her own name. It was found that she would not have been approved for the mortgage at the time it went to court due to affordibility and she knew that. Even so, she took him off the deeds with land registry and did not inform the lender. She did not tell the court any of this and actually told them she would do everything she can to make sure he came off the mortgage straight away. As of December 2020, the mortgate has 104k over 17 years left on it. She will not make any application to remortgage and continues to fob him off. She has worked as a NHS nurse for 17 years, so we know what she earns and cannot think she would be turned down for £104k on her own. She has not met anyone else since 2010 so no partner she could apply with. He fully intends to see a solicitor but in the meantime we are anxious to know where he stands. The judge made a ruling after being deliberately misled by her. If neither could have the mortgage in their sole names then regardless of who wanted what the house should have been sold and equity divided IMO. If anyone know much about family law, could this be brought to the attention of the court via a solicitor for the particulars surrounding the ownership of the house be reviewed in light of evidence proving she misled them?

OP posts:

DrCoconut · 07/03/2021 15:03

What @Pickledpenguin said. I'm going through this at the moment and my ex has to sign paperwork. The conveyancing company have needed lots of documents from me about my mortgage offer etc too and have written to my ex to keep both parties in the loop. I'm struggling to see how this can happen unless some serious fraud has taken place.

frazzledasarock · 07/03/2021 16:41

The courts cannot order the bank to remove anybody’s name from the mortgage.

The OP’s H will have received hi soon part of the financial settlement in turn for which he would have agreed to give up any financial claim on the former marital home. Maybe he got a lump sum or the ex wife gave up any claim to pensions or something.

The deeds of the former marital home are then signed over solely to the ex wife and she in turn is told to make reasonable attempts to remove the exH from the mortgage.

The exH will have agreed this and signed his share of the house over to his ex wife.

It’s not fraud, its a normal post divorce financial agreement.

Original poster

SultansOfSwing · 08/03/2021 10:24

I have gone through all the papers.
They separated 2010, divorce proceedings commenced 2012 after 2yrs separation. In 2011 prior to divorce proceeeings her solicitor wrote to husband and asked him to sign a document transferring deeds into her sole name. He signed this form after she told him she will sort out removing him from mortgage. We know now that he should not have done this and should have waited until the mortgage was sorted but nonetheless this is where we are. Deeds show in 2011 the house was put into her sole name. She not consult the lender. She then closed down the joint bank account that the direct debit was being paid out of and changed the direct debit to come out of her own account. She did not seek his signature to make these changes which the bank are aware of. When husband rang the lender he was unable to provide them with the sort code and account number for direct debit or pass some security questions and as such they refused to talk to him. He went into the bank to speak to them face to face with ID. This was 2013. He had a meeting and was told by the lender she should not have the deeds in her name without consulting them first, she needs to remortgage. They said "this is most unusual."
When the divorce was finalised in 2013 the judge ordered her to use her best endeavours to release him from the mortgage but that she shall (in capitals) release him from all financial liability for the house that is in her sole name. They must not have considered her financial position as the transfer was done before the proceedings is my only guess.

After that she did nothing. When we applied for our mortgage in 2015 we were turned down due to affordibility based on him being on this other mortgage. We were eventually able to get one but not for as much as we would like.

My husband was foolish for signing, I agree he absolutely should have waited for her to sort the mortgage. There is no malicious intent to make his ex homeless or cause her trouble or try to gain financially in any way but ultimately 10 years later there is no progress and she expects him to remain on there for the next 17 years with no way out of this. He wants to cut ties and draw a line under it all.

OP posts:

DinoHat · 08/03/2021 10:27

She would have had to have the lenders consent. They generally put a restriction on the title to prevent any application being made without their consent.

Is your husband certain his ex didn’t indemnify him in respect of the mortgage? Does the title have an indemnity provision on it?

I think a solicitor could get to the bottom of this in about five minutes. Just speak with one and stop faffing.

DinoHat · 08/03/2021 10:28

If the lender has erred in allowing this can your DH not just approach them? Sorry but it doesn’t make sense. Someone had been negligent here.

DinoHat · 08/03/2021 10:28

Also did he not have a solicitor dealing with this?!

WB205020 · 08/03/2021 10:50

Clearly there has been a cock up here as this should have been checked by the solicitors and paperwork filed with the court to show the judges instructions have been carried out.

I would suggest he gets back in touch with his original solicitor and get them to get in touch with the judge who gave this order. If she has knowingly failed to carry out the judges instructions and has misled the court then she is in contempt of court which can carry a custodial sentence. This is very serious for her.

Your DH needs to speak to his solicitor urgently.

prh47bridge · 08/03/2021 11:30

@WB205020

Clearly there has been a cock up here as this should have been checked by the solicitors and paperwork filed with the court to show the judges instructions have been carried out.

Your DH needs to speak to his solicitor urgently.

No, paperwork is not filed with the court to show that the judge's instructions have been carried out. It was up to the OP's husband to ensure that she released him from the mortgage. As he was aware of her income, he should have been aware that this was not going to happen quickly.

It is not clear that she misled the court. If she lied on Form E then yes, she misled the court. However, if she made a full and accurate financial disclosure, she has not misled the court.

It is not clear that she has failed to carry out the court's instructions. The order was that she use her best endeavours to remove him from the mortgage. If she genuinely cannot meet the affordability criteria to remove him from the mortgage, there is nothing that the OP's husband can do about it. However, if she could remove him from the mortgage but is refusing to do so, he could go back to the courts and ask them to enforce the order. He needs to consult a solicitor. It does not have to be the same solicitor who handled the divorce.

Original poster

SultansOfSwing · 08/03/2021 12:29

We have a solicitor appointment booked for Friday next week.
Order says:

AND UPON the Former Matrimonial Home having already been transferred into the sole name of the Petitioner with the mortgage thereon remaining in the joint names of the Petitioner and the Respondent.
AND UPON the Petitioner undertaking to the court and agreeing to use her best endeavours to procure the release of the Respondent from any liability under the mortgage secured upon the Former Matrimonial Home and in any event to indemnify the Respondent against all such liability AND FURTHER, that in the event of her remarriage, the Petitioner SHALL secure the release of the Respondent from the mortgage in respect of the Former Matrimonial Home, in default of which, the Former Matrimonial Home shall be sold PROVIDED that such sale shall not occur without order of the court in the event that the child of the family is still a minor.
AND UPON the Petitioner undertaking to the court and agreeing to pay all the outgoings in respect of the Former Matrimonial Home and to indemnify the Respondent in respect of all actions claims and demands relating thereto.

I appreciate those saying she would have had to consult the lender, but please believe me - she did not. She removed his name from deeds with his consent without consulting the lender nor notify the lender at any stage. As this all happened a full year before the divorce proceedings then I don't think anybody looked at it.

OP posts:

DinoHat · 08/03/2021 12:47

The court order quite clearly reads that your OH had already removed himself from the title to the property, so it’s largely irrelevant. Sounds like the court were working with the issues as they stood at the time.

prh47bridge · 08/03/2021 13:59

She must use her best endeavours to remove him from the mortgage. If she does not meet the affordability criteria there is nothing he can do about it.

She indemnifies your husband against any liability, so he doesn't have to pay the mortgage and, if the lender comes after him for any payment in respect of the mortgage, she must cover the payment.

If she remarries, she must, at that point, either remove your husband from the mortgage or, failing that, sell the house provided the children (if there were any) have grown up.

The only possible cause of action would be if she meets the affordability criteria and isn't doing anything about changing the mortgage. In that situation your husband may be able to take enforcement action.

WeatherwaxLives · 08/03/2021 18:42

I suppose the only chink of hope is that if she can't release him from the mortgage she does have to indemnify him against having to pay anything towards it (although how she does that if she doesn't have the money I don't know? Sell the house I guess?) so with that proof you could maybe get another mortgage company to not use her mortgage in the affordability calcs? I don't know.

SeasonFinale · 08/03/2021 22:57

OP - the SHALL part relates to if she remarries.

SeasonFinale · 08/03/2021 22:58

The indemnity she gives in respect of the mortgage means that the mortgage company can still pursue him but she has to pay him back anything he pays to them. She can only do this if she has the money (which she would if she got to the stage to have to sell the property) but even then he hasn't got a charge on the property so he would be an unsecured creditor.

prh47bridge · 09/03/2021 00:10

@SeasonFinale

True but that would only be an issue if she is in negative equity. As long as a sale of the property covers the outstanding balance on the mortgage, the lender's charge on the property will mean that they will get their money back and he won't owe them anything.

Original poster

SultansOfSwing · 09/03/2021 07:49

Mortgage is 104, value of the house in current condition is around 275. Will wait and see what solicitor says next week!

OP posts:

Snowball70 · 10/03/2021 05:55

good luck OP

Porridgeoat · 10/03/2021 18:53

She could get one of those 40 year habito mortgages

Pickledpenguin · 16/03/2021 13:57

Any updates OP? @SultansOfSwing

Original poster

SultansOfSwing · 16/03/2021 14:14

The solicitor appointment is this Friday. We have given them a copy of all of the paperwork and the first thing they said was "I have never seen this before but really she should not have done this without consulting the lender first" and that they will have a thorough read of it all ahead of the upcoming appointment and advise us from there.

Since my last post, DH emailed ex and asked if she has made an application to re-mortgage the house and discuss a way forward. She replied that she will not make a mortgage application nor will she discuss anything to do with the existing mortgage with him and to only communicate via a solicitor.

OP posts:

thesecretvoter · 16/03/2021 15:24

Was there an overlap with their relationship ending and yours beginning? I'm just thinking that if there was it might explain her refusal to have him removed. It doesn't benefit her, and it causes him ongoing grief.

Original poster

SultansOfSwing · 16/03/2021 17:49

I met him 3 years after they separated. He got his decree absolute 2 weeks before we met.

OP posts:

MrsRockAndRoll · 18/03/2021 12:33

Good luck for Friday

ThirtyCharacterUsernamesOnly30 · 19/08/2021 00:08

How did court go? Just asking, as I've got a friend (I know! But, really) in a similar situation.

Mumsgirls · 26/08/2021 09:49

Bank have a first charge on the property. Ex cannot sell without the mortgage being repaid. His name off the deed is irrelevant.
Seems unfair that she is befitting from the increase in property value and he is not able to do similar. I would find out from a broker what she can borrow and confront her. He needs a snarl for a solicitor, seems like he used a poodle and got taken for a ride

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