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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34283
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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My partner has another property with his x.He is still on

Customer Question

My partner has another property with his x.
He is still on the mortgage and land registry.
This year she was due for eviction on 31/7, which has been put on hold due to her agreeing to pay £1.86 off of the arrears per month (arrears over £1000 mortgage company said).
Her monthly mortgage is £282 per month.
From the looks of the property no one has been living there for at least a few months.
The mortgage company over the last 9 years have refused to remove him due to there being arrears on the property.
He is to the point of being fed up of not able to move on with his life.
Can we have her removed 1. From the property and 2. From the mortgage in order for him to bring the payments up to date she has attached 2 charges to property and so much with additional charges added to the mortgage the house would be in negative money.
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Were they ever married and are there any children involved?
How much is the property worth and how much is outstanding on the mortgage?
Clare
Customer: replied 3 years ago.

hi Claire,

Yes they were married, decree absolute in early 2008 clean break, 2 children 18 just gone to uni and 15 still in school last year.

a property sold next door last year for £116,000. Zoopla states value at £140,000. don't think you would get that as needs some work. Mortgage taken out was £110,000 in 2002. Mortgage left as at early last year was £120,000 plus any extra charges up to date.

There is a court order (which I can't put my hand on at present) where she was supposed to

remove his name to the best of her ability

Clear and pay off a joint bank account (which also hasn't been done and he has now been given a ccj which we were not aware of only when his landlord tried to guarantee the rent which was refused due to this. He was not aware of this and was having major surgery when this was applied.)

many thanks

Expert:  Clare replied 3 years ago.
Hi
What makes you believe that she no longer lives at the property?
Clare
Customer: replied 3 years ago.

Weeds growing up the door, paper hanging out the letterbox for more than a few days, he works in the area at various times of the day from 8.30am onwards can be late in the evening and normally sees some sort of movement in the property from his daughter in her room with lights on or living room/kitchen lights on. Also her comment made in march when she was returned home was mums not home again, I'm on my own. She was asked who is about when she gets home and she said no one until her brother arrives home after football which can be anything after 10pm.

Since the beginning of September we have made visits to the property and watched there are not lights on, no one entering the property, no electricity, no gas. Freezers empty, in fridge is growing food some items dated from march, dishwasher mouldy, mould growing in washing up bowl.

Development today is the mortgage company have kindly made contact with him, (after previous asking to keep informed by phone as he does not receive any communication letters as she doesn't give over his post) She has broken another court order by not paying the agreed mortgage amount plus owed monies. They have referred the account back to the solicitors today. He has to ring them tomorrow.

thanks

Expert:  Clare replied 3 years ago.
Hi
What does the Order say about the equity will be divided between them when it is sold?
Clare
Customer: replied 3 years ago.

she was entitled to the house due to her losing the other house (non payment of mortgage) and to remove him from the mortgage to the best of her ability.

this order was made between 2006 and 2007 can't remember specific date sorry.

It is my understanding that the court order is now void due to the time lapse? Also my opinion is as she hasn't done the other things on the order that she has broken the order and therefore becomes void?

Expert:  Clare replied 3 years ago.
Hi
No I am afraid that the Order stands - there is no basis on which it becomes void at any time at all.
Her failure to abide by the Order merely allows your partner to take action to enforce the Order should he chose to do so.
If the Order gives his ex all of the equity then the only action that he can take is to apply to the court for an immediate sale of the property so that the mortgage can be discharged.
This is done using a Form D11 available here
http://www.familylaw.co.uk/system/uploads/attachments/0002/0835/D11.pdf
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 3 years ago.

can you tell me how to apply for a civil procedure rule 3.1(7) application to vary or revoke an order

Expert:  Clare replied 3 years ago.
Hi
Right theory - wrong rule!
The Rule you wish to use is actually
Rule 4.1(6) Family Procedure Rules 2010
It is discussed here
http://www.familylawweek.co.uk/site.aspx?i=ed110728
and here
http://www.familylawweek.co.uk/site.aspx?i=ed130388
The Form to use is the D11 previously referred to
Please be aware however that if you are not successful in changing (rather than simply enforcing ) the Original Order then the other side are likely to be granted a Costs Order - so if what you wish to do is force the sale it would be better to go for enforcement
Clare
Clare and other Family Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi,

I'm just filling in the D11 form, what do I put for the order requested.

I need to enforce the order rather than force sale due to there being so much negative equity which he will be responsible for if not?

Expert:  Clare replied 3 years ago.
Hi
I assume that you mean you wish her to remove your partner's name from the mortgage.
This is not going to happen unless the property is sold - the Mortgage Company will certainly not release him given the arrears situation.
Accordingly the only way forward is to apply for an Order for Sale - and an Order that your partner have the conduct of the sale so that he has a chance of obtaining the best possible price
Clare
Customer: replied 3 years ago.

so what happens with the money owing to the mortgage company as the property will not sell for what is left on the mortgage and to cover the two charges on the property?

Expert:  Clare replied 3 years ago.
Hi
Are the two charges in her sole name?
Clare
Customer: replied 3 years ago.

1 I'm not sure of the other is from a joint bank account she was suppose to clear and pay under the same order, which she has not done so hence he has been slapped with a ccj and charge on to the house as well as her.

Expert:  Clare replied 3 years ago.
Hi
Ok
The Mortgage is the only one that HAS to be paid off for the sale to go ahead
The other charges will be discharged from any excess - with any balance remaining owing.
The bank account money will remain a joint debt BUT your partner can sue his ex for the money.
The major problem will be that the Estate Agents and Solicitors fees may well have to be paid upfront rather than from the proceeds.
Clare