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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33316
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I am going to court for a final hearing next week for a charge

Customer Question

I am going to court for a final hearing next week for a charge that was placed on my property. At the FDR it was deemed unfair for the charge to stand as my ex husband does not pay towards his children and if he took the £14,000 out of the equity in the property due to current market on selling houses it would leave me with no money to put a dep/bond on another house, so it was mentioned that a 60/40 split in my favour would be better. He is wanting a lump sum settlement as i had proposed paying him a dep then monthly instalmets but he has rejected this and wants to go to final hearing. I cannot raise a lump sum and would love to stay in the house. But i have now had a letter from his solicitor saying that if his client is forced into bankruptcy as he is £42000 in debt due to a house he has had repossessed after he left me then the Bankruptcy officers will come to me for the original £14,000 on the charge! Can this be done? The property has bee up for sale for 2 years now with no offers and I now live with my partner but due to him having debts from his previous marriage he is unable to raise a lump sum either. I am having to represent myself in court as i am not entitled to legal aid unlike my ex husband as he syas he is unemployed!! I dont know what to do, please can you help?
Submitted: 3 years ago.
Category: Law
Expert:  UK-Justice replied 3 years ago.
Thanks for your question, I will do whatever I can to help you. Please remember to rate my answer SMILEY FACE OR ABOVE.

Was there a Judgement for the charge to be made?
Customer: replied 3 years ago.

The original charge was registered at the Land registry if that is was you are meaning. Nothing else has been done with it since.

Expert:  UK-Justice replied 3 years ago.
Who does the charge belong to?
Customer: replied 3 years ago.


The charge is between myself and my ex husband. He had the charged placed on the property as at the time we split we had just moved to another house and there was £48,000 equity in the property. I re-mortgaged and gave him £10,000 thus meaning the charge was for £14,000.

Expert:  UK-Justice replied 3 years ago.
Ok, this is beyond my area so I will opt out for another expert to pick up.

No need to respond.
Customer: replied 3 years ago.

Hello,


Can you please advise if this has been passed onto another soliciter please as I have not heard anything since earlier this afternoon.


 


Thank you


 

Expert:  UK-Justice replied 3 years ago.
Yes its open - another expert will be along to pick this up
Expert:  Clare replied 3 years ago.
Hi
Thanks for using JustAnswer. My name isXXXXX will do whatever I can to answer your question
How much is the house worth and how much is outstanding on the mortgage?
Claire
Customer: replied 3 years ago.

Hi Claire.


As you know the house is only worth what people want to pay for it, but in the last 2 years I have reduced it by £20k to £145k the mortgage is £129k give or take a few hundred pounds it is an interest only mortgage.


At the FDR in December 2012, my ex and solicitor said they understood the value of


the property due to the dire housing market.


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Who has the benefit of the charge?
Claire
Customer: replied 3 years ago.


My ex husband does. As ive previously written the charge is for £14,000 and he has already had £10,000 in 2008 when i re-mortgaged the property in my name. At that time I was ill advised about the charge and all I wanted to do was stay in the property as I had 2 young children.


 


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
OK.
I would just like to clarify how and why the charge was put on the property - you are speaking about an FDR which suggests that there has not yet been a final order within the matrimonial proceedings so it woudl be helpful to have some idea of the background
Claire
Customer: replied 3 years ago.

Hi


The charge was put on the property because he wanted the house to be sold initialy when we split, but I wanted to stay in the home with the children. So i re-mortgaged but I could not afford to give him the full £24,000 he wanted out of the equity (50% of £48,000 we brought from our previous home together) so he agreed to take £10,000 and a charge was place on the property for the further £14,000 and registered with Land registry. Now I have another partner he has taken me to court to obtain the £14,000. We have been to court twice now and the final hearing is next week this is because I have been unable to raise a lump sum of £10,000 which he has since requested although the last judge advised it would be grossly unfair for the charge to stand as he pays nothing towards his children and it would leave me with no money to find a rental property. It was indicated a 60/40 split in my favour would be better and that the property is worth about £145,000 now (£165,000 when originally bought) but i still cannot raise the the sum of about £5400.00 which would be 40% of the equity left after fees etc. I hope this helps and im making sense. I have offered a repayment plan but he has declined this also. His solicitor has also mentioned him been forced into bankruptcy and that if this is the case the bankrupty officers will come to me for the £14,000 as the original charge would stand. Can they do that?


 


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Sorry just for clarity.
Was the original agreement simply an arrangement that you made between you or was it turned into a Court Order and sealed by the court
Claire
Customer: replied 3 years ago.


Hi Claire,


 


We never went to court for it, it was drawn up by his solicitor and sent to mine for me to sign. Then I was advised that it was registered with the land registery.


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Now that is good news. (Even if I could spit at how you were taken advantage of to start with)
How much is outstanding on the mortgage and why does your ex not pay any child maintenance?
Claire
Customer: replied 3 years ago.


Hi Claire,


 


Yes I have been taken massively advantage of!!! But I was going through a split and I broke my back in an accident at the time so as you can imagine I was all over the place!!


 


The mortgage is about £129,000 give or take a few hundred pounds.


 


He is conveniently unemployed and has been for the last 2 years since I went to the CSA. So he was supposed to pay me £3.33 every 2 weeks but for some reason that stopped altogether on 31.05.2012!!


 


I ask for help with the children but the reponse I get is he is not working and I should give him what he's owed!!!


 


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
What was the value placed on the house in 2008 when you re mortgaged it?
Claire
Customer: replied 3 years ago.


Hi


 


I would have to search my paperwork out when I get home. But we bought the house in Nov 2007 for £145,000 and I re-mortgaged in Aug 2008 I think it was valued around the £150,000 mark.


 


Regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Right - so at that point the house was worth £150,000 and the outstanding mortgage was how much?
What other assets and debts were there then?
Claire
Customer: replied 3 years ago.


Do you mean how much did I remortgage for? I re-mortgaged for £129,000


give or take a few hundred pounds. If you need the correct amount for the old mortage to be paid off I would have to check. But it was around the £101,000 mark ( your going to like this as well!!) There was an early redemption fee of £7000 which I paid and not forgetting the £10,000 i gave him and also he took the family car so I lent the rest of the money to buy a car at £3,200 and to pay solicitors fee and make a will etc and a small family holiday to recover from my broken back etc!! What a mess.


 


No assets at that point and debts were minimal really and it was things that cleverly where always in my name.


 


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Thanks for using JustAnswer. My name isXXXXX will do whatever I can to answer your question
So there was at the time of separation assets of maybe £40,000 of which he has had £10,000 is that a fair summation?
Claire
Customer: replied 3 years ago.

Hi,


I've looked at my paperwork now that I'm at home and the old mortgage was £106,094.08 with the early redemption fee included of £6796.88.


Also i have found that the property was valued at £165k when i re-mortgaged.


 


Kind regards


 


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
So assets of £50,000 of which he has £10,000
The property has since dropped in value is that correct?
Your partner is now living with you but you cannot re-mortgage and you still have children from the marriage who are under 18?
Claire
Customer: replied 3 years ago.

Hi,


Yes the property is on the market for £145,000 and my ex is OK with this. My partner already has his name on a mortgage for a property that has also been on the market for over a year and a half and that will probably be in negative equity as well!!!!


 


I have 2 children aged 11 & 9 and like I mentioned he does not maintain them. He has them over night 2 times a month and every Saturday 9am till 4pm.


 


Kind regards


Theresa

Expert:  Clare replied 3 years ago.
Hi
When the house is sold will you and your partner be abl eto raise a mortgage on an alternative property?
Claire
Customer: replied 3 years ago.

Hi


 


Well it all depends on his credit rating as his ex wife lived in the property and didn't pay the mortgage for nearly a year!! My partner rang the bank and instead of paying maintenance paid half the mortgage instead but it was nearly reposessed but he managed with the help of his parents to sort it but we dont know


 


 


how that will look on His credit report. t

Expert:  Clare replied 3 years ago.
Hi
At the FDR did the Judge indicate that he would order an immediate sale?
Claire
Customer: replied 3 years ago.

Hi


It was said that the house was to remain on the market until sold or if I wanted to remain there I was to raise a lump some equivalent to 40% of the equity after fees etc.


 


She told us both that we should both agree to it one way or the other and she hoped there would be no final hearing.


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
At that time had you pointed out that this would leave the children homeless
Customer: replied 3 years ago.

Hi


 


She was a very matter of fact judge and I never got to say a lot really.


But this is obviously something I can put in my skeleton argument for the final hearing.


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Do not worry about the threats from his solicitor - the Judge has the power to set this Charge aside - and will.
A 60/40 split is indeed a reasonable settlement - indeed on the generous side to him since he has already received the bulk of it in advance and could have been forced to wait for it
You should focus on your ex's responsibility to assist you with the safe and secure housing of the children until they are 18.
Point out that a sale now would leave the children in rented rather than owned accommodation
You could offer to stand by a 50/50 distribution if that is delayed until the youngest child is 18 -
Claire
Customer: replied 3 years ago.

Hi Claire,


Sorry I have not replied I have had internet problems!


 


Thank you for your last reply and yes I do have a few other questions if that is ok?


 


My ex husband solicitor keeps requesting my partners income, assets and he took me to Spain for 3 days last October and they want to know who paid for it and written evidence!!


 


Up to the present date I have never supplied these details as they have never asked my partner for them directly and he has not been called to court either. Would this look bad on me in the eyes of the judge if I do not supply these.


My partner says that he will give a brief over view but as the case is between me and my ex husband he doesnt see why he should.


 


Also I mentioned before about if my ex declares himself bankrupt can the bankruptcy officer come to me for the original £14,000 as I have a feeling he may bring this up to scare me.


 


I have prepared my postition statement and would just like to be clear on these few points before court.


 


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
For clarity does your partner live with you or does he intend to do so?
Claire
Customer: replied 3 years ago.

Hi



He does now live with me.


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Then I am afraid that his financial situation is entirely relevant to the issue especially if you wish to postpone any order for sale.
The court will need to understand why your ex has to wait for his money whilst your new partner has the benefit of living at the property - so you will need to show sufficient detail to explain why he cannot help you re mortgage to pay your ex off.
Failure to do so is likely to lead to an immediate order for sale
As I said the court has the power to set aside the existing charge so then the Trustee in Bankruptcy will have no claim at all
Claire
Clare, Solicitor
Category: Law
Satisfied Customers: 33316
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 3 years ago.


Hi Claire


 


I would just like to say thank you very much for all your help. Thanks to your advise about asking the sale to be postponed until my youngest reached 18. I went to court and it was agreed that this would be the best solution and so that is what is happening. The original order has been dismissed and the new one put in its place and the judge advised that if me ex husband is declared bankrupt then the new order stands.


 


If it wasnt for your advice I would not have put that in my skeleton argument and then we would have to have given evidence. But because I did it was all settled without having to go through everything. A massive weight has been lifted from my shoulders.


 


So once again thank you so much


 


Kind regards


 


Theresa

Expert:  Clare replied 3 years ago.
Hi
Thank you for letting me know what happened - and well done for resolving the issue so well!
Claire

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