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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33313
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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please can you advise me of the following I have a court order

Customer Question

please can you advise me of the following I have a court order that my x-wife has broken the judge has stated that the words used in the order "best endeavours" is a clause and she can pay off the mortgage "whenever" she wants, also on the order is the word "forthwith" which means immediately. My solicitor has said that best endeavours is a legal term not a clause and that forthwith stands. Who is right the judge or the solicitor and where do I go from here
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 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.
What is the exact wording of the clause in question and who drafted it?
Clare
Customer: replied 2 years ago.

it was drafted by Judge Campbell 24th August 2012 in Chichester County Court the wording is

and upon the applicant (x-wife) undertaking to the court and the respondent (me) that she will use her best endeavours to obtain the release of the respondent forthwith from the mortgage covenants relating to the mortgage secured on the former matrimonial home

Expert:  Clare replied 2 years ago.
Hi
What efforts has she made to discharge the mortgage?
Clare
Customer: replied 2 years ago.

she hasn't she has brought a £10000 sports car taken people on holiday to turkey paid off her credit cards and brought a new pedigree alsation

Customer: replied 2 years ago.

she hasn't she has brought a £10000 sports car taken people on holiday to turkey paid off her credit cards and brought a new pedigree alsation

Customer: replied 2 years ago.

hi is anyone there please?

Customer: replied 2 years ago.

hi please can someone respond to me

Expert:  Clare replied 2 years ago.
Hi
The fact is that the Judge is correct - she only has to use her "best endeavours"
However she has to prove that she has used them and taken every possible step to obtain your release
Frankly your solicitor should know this
Please ask if you need further details
Clare
Customer: replied 2 years ago.

So what you are saying is the judge is correct and that my solicitor is wrong she has allowed me t sign an order that was written by a judge that should not of been written ie using the 2 phrases in the same paragraph which contradictes each other?? i take it i need to put in a formal complaint against my solicitor? can you suggest how i write this letter to my solicitor and what will happen next?

Many thnaks

Steve

Expert:  Clare replied 2 years ago.
Hi
No Court will Order one party to obtain the release of the other from a mortgage unless that has already been organised because it is a decision that only the Mortgage Company can make - and if they refuse for whatever reason then the Court might as well have simply ordered the sale.
There is n fact no conflict with the words at all.
The Forthwith applies to using her Best endeavours to obtain your release as soon as possible
This is very standard basic family law.
Your solicitor should be aware that the way forward is to ask your ex to identify what she has done to obtain your release and what reasons the mortgage company has given for the refusal - and what your ex has done about this
I am also intrigued by the circumstances in which an order was written by the Judge - Consent orders are generally drafted by the parties and amended by the Judge - and where an Order has been imposed again the solicitors usually agree the final wording
Clare
Customer: replied 2 years ago.

apologies it was drafted by the solicitors and agrred by the judge, i cannot belive that my solictor has allowed this to happen, how what do i say in my complaints letter, how can i force the issue to release me from the mortgage, i have signed a tr1 which is held strictly to order on a simoltanous swoop for my release i am writing to the land registry as my x said in court that i was not on the deeds anymore if this is the case then i have even more to complain about?

Expert:  Clare replied 2 years ago.
Hi
As I said this is standard wording - nothing else would have been acceptable - the problem is that your solicitor did not tell you what it meant
Without knowing more about the situation - what does she earn are there children involved - it is impossible to assess whether it was the right move or not
Clare
Customer: replied 2 years ago.

she doesnt work my 3 boys are now all over 18 i feel i have been gravely misguided and my divource is still not concluded and the solicitor now wishes me to pay the rest of her bill but it is still unresolved? i am left with a bad credit due to my x not making regular payments on the property this has been going on now nearly 2yrs surely there is something that can be done?

Expert:  Clare replied 2 years ago.
Hi
Roll back to the time of the settlement - how old were your children then and what was the extent of the assets and income?
Clare
Customer: replied 2 years ago.

1 x 23 twins were 16 half and had been out of education since they were 15 I have the school reports for the lack of attendance she took £36000 from my business and drew down other monies £12000 of which she declared was to look after her and the children she admitted this to the court on her fdr statement, she doesn't work has 4 horses 3 dogs now 2 cars one of which I mentioned she brought last year for £10000 I left with £43.65 in my bank and she got the 4 bedroomed house (4th is a conversion in the loft) she got an endowment of around £13000 and I was left with my pension and 2 endowment's totalling £10000 approx. She has had £100,000.0 from her father again this was declared to the court and squandered it on anything except the mortgage there was no maintenance involved

Expert:  Clare replied 2 years ago.
Hi
Ok
How much is the house worth and how much is outstanding on the mortgage?
Clare
Customer: replied 2 years ago.

it had to be valued as a forced sale at 190000 there was 45000 owed on it but I have found out that today 20000 has been made I believe although unsure if this is monies from the endowment ? leaving 245000 owing

Expert:  Clare replied 2 years ago.
Hi
So the amount outstanding is £24,500.
Does your ex work?
Clare
Customer: replied 2 years ago.

No she does not work

Expert:  Clare replied 2 years ago.
Hi
Just to check - you are certain that the amount outstanding is £24,500
Clare
Customer: replied 2 years ago.

i have doubled checked the figure and it is 24707.44

Expert:  Clare replied 2 years ago.
Hi
That is helpful.
If she does not work how is your ex funding her bills?
Clare
Customer: replied 2 years ago.

i assume wrightly or wrongly the money she recievd from her father all this is noted in written form that was seen in court but it seems to off gone on deaf ears the last judge lusty on 7th july 2014 confessed (transcripts) that she didnt know the case and had to breifly read the order of which she said the "bes endeavours" meant she could do this whenerver hence my writing to you for where to go with this

Expert:  Clare replied 2 years ago.
Hi
When did she receive those monies - before or after the order in 2013
Clare
Customer: replied 2 years ago.

she recieved them after was just before xmas last year being 2013 the original order was made 24th August 2012 not 2013!

Expert:  Clare replied 2 years ago.
Hi
At the last hearing what was the argument that your solicitor out forward?
Clare
Customer: replied 2 years ago.

I representaed myself as i had all the documents prepared from the last hearing in April 2014 from my barrister Mr ***** ***** my x didnt represent herself as she claimed she couldnt afford it.

Customer: replied 2 years ago.

I had a letter produced for me to take to court 7th July by my solicitor also, this outlined all the things my x had done not to pay off the mortgaeg ie the spending car/dog.holidays etc

Expert:  Clare replied 2 years ago.
Hi
What evidence did your ex produce concerning what approaches she has made to the Mortgage Company?
Clare
Customer: replied 2 years ago.

a letter stating that they couldnt help her from the woolwich that was it, hence the agreement that she made back i aug 2012 she stated that her parents wre to help her of which her father then did. Nothing else at all.

Expert:  Clare replied 2 years ago.
Hi
What efforts has she made since the court order - did you ask her?
Clare
Customer: replied 2 years ago.

i do not speak with my x wife at all under any circumstances the judge on 7th July Judge Lusty said that she didnt need to show any effforts as it was her best endeavours meaning whenever so we are where i started at the beginning of this question in ""LIMBO LAND"" and need to know how to proceed and also how to make a complaint to my solicitor and what wording to use

Expert:  Clare replied 2 years ago.
Hi
I suspect the problem is that you have approached the matter from the wrong direction which is why the application was not successful.
Her Undertaking was to
"use her best endeavours"
At the very least this means her contacting the mortgage company once a year and establishing what she needs to do to obtain your release.
Given how small the amount outstanding is then it would also be reasonable for her to have explored other ways of raising the funds.
Your application should have been focussed on THOSE issues - backed up by details of loans that she could take out.
In that context it would also have been possible to raise the monies she received from her father AFTER the Order was made.
Next year you can try again based on that.
In the mean time you should write to the solicitor and ask for a written explanation of why she allowed you to sign a Consent Order which did NOT gave a long stop date for your release from the mortgage - as is normal in these situations.
I suggest that you copy it to the Complaints Partner as well.
Please ask if you need further details
Clare
Customer: replied 2 years ago.

I did not want a long stop gap i wanted immediate effect as my x wife wanted her father to help get her the house this was agreed but she decided once this was arranged that she didnt want to pay off the mortgage hence why we are at where we are, why next year to try again??

Expert:  Clare replied 2 years ago.
Hi
A year because you have only just tried and failed so she needs a further time in which to fail to use her best endeavours
Notwithstanding what you wanted your solicitor should have protected you
Clare
Customer: replied 2 years ago.

so because of all of this and i wasnt protected how do i sor tout my credit score i cannot even opena simple savings account my new partner has had to open accounts in her name for me to have access too i was told aug 24 2012 that i would have the same living rights as my x wife but this has not happened how can i sort this out the house has been repossed twice dince 2012 and she has managed to work the systme to keep it and in the process ruined by creidt ability i can not get a mortgage like i said not even a simple bank account in my name

Expert:  Clare replied 2 years ago.
Hi
Is it still subject to a suspended possession order?
How much are the arrears?
Clare
Customer: replied 2 years ago.

no not at the moment but the outstanding balance owed on the property is due 1st sept 2014 in full so if she doesnt pay this then the reposssion proceedings start again i have monthly statemtnes sent to me from the woolwich to confirm these dates and the outstanding balance which is how i found out the other day what was left to pay. Can i instruct a rit/sherriffs baliff to take the cars/horse trailer anything of value to force her to clear the balance?

Customer: replied 2 years ago.

24707.44 outstanding

Expert:  Clare replied 2 years ago.
Hi
Right so there are no arrears BUT the mortgage terms ends this September is that correct?
Clare
Customer: replied 2 years ago.

correct but she other than the recent 320k she doesnt keep up the payments on time

Expert:  Clare replied 2 years ago.
Hi
I understand that - but with the Term ending she either has to redeem it or lose the property
Did you ask in Court what her plans were?
Clare
Customer: replied 2 years ago.

yes and the judge judge lusty said taht this wasnt to be adressed and that no further to be made she can use her best endeavours and that the case was done she also said she didnt understand as to why this had to go to court as this could of been settled between us !! which as you can see this would never of happened and has not ! this does not sort out my credit though does it?

Customer: replied 2 years ago.

was menat to read £20k paid not 320K

Expert:  Clare replied 2 years ago.
Hi
Given that the mortgage term comes to an end in September you have only a short time to wait for the matter to be resolved.
If in October the Mortgage Company does start repossession proceedings then you could take further action Clare
Customer: replied 2 years ago.

ok but how do i repair my credit rating when she has defaulted on the mortgage as i am still on it how do i get the chance to re-house myself with a mortgage as i stated i cannot even get a siple bank account surely there is somehting i can do to prove this wasnt my fault?

Expert:  Clare replied 2 years ago.
Hi
Most Credit Agencies are aware of the problems that arise form bing on a mortgage in such circumstances and it is sensible to ensure that the facts are recorded with them
Clare

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