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Thomas Judge
Thomas Judge, Lawyer
Category: Law
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Experience:  Over 25 years experience in law
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My daughter proceeded a claim through the small claims court

Customer Question

My daughter proceeded a claim through the small claims court against her ex as he had agreed in an email at the time of separation to pay half of the mortgage and all of the service charges on their property until it is sold.
He has defaulted on these payments and substantial arrears have accrued to the point where my daughter is facing possible repossession.
The judge ordered him to pay back partial arrears which he did not do in the time limit set. Whilst it was not part of the order, the judge declared that a binding contract does exist between them and he declared that my daughters ex should pay half of the mortgage and all of the service charge until the property is sold.
Our question is, " Are we able to enforce the binding contract?" He has changed his address and as our daughter lives in the marital property she is the sole point of contact for the mortgage company as he has failed to advise them of his current address.
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
They are now divorced as the Decree Absolute has come through. The mortgage is in joint names . The property has been on the market for two years but still has not sold.
Expert:  Thomas Judge replied 1 year ago.
You would have to take the matter back to the small claims court to get the 'binding contract' turned into an enforceable judgement - then obviously you would be able to enforce the judgment. Happy to discuss - please rate positive.
Customer: replied 1 year ago.
Can you advise which forms we would have to submit and what the cost would be please.
Customer: replied 1 year ago.
In you opinion how easy is it to get a binding contract turned into an enforceable judgement?
Expert:  Thomas Judge replied 1 year ago.
You would be bringing the claim presumably under the small claim on the basis of www.moneyclaim.gov.uk - which is really straight forward and the forms are online. If it is a binding contract then it should be straight forward. Happy to discuss. Please rate positive - thanks
Customer: replied 1 year ago.
Thank you , I will look into this .
Expert:  Thomas Judge replied 1 year ago.
My pleasure - can you rate positive - then still able to help - thanks
Thomas Judge, Lawyer
Category: Law
Satisfied Customers: 32927
Experience: Over 25 years experience in law
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Customer: replied 1 year ago.
The court judgement states that a binding contract exists. This is at the top of the judgement as part of a declaration. Then the order part is at the bottom. My daughter thought this was all part of the order at the time of the hearing but obviously not. She will need to consider whether to return to the small claims court to enforce the binding contract.
Expert:  Thomas Judge replied 1 year ago.
That is correct - she needs a judgment for the sum outstanding.
Customer: replied 1 year ago.
How do we establish the sum outstanding when it is the mortgage. Can she only claim what is owed in arrears on the mortgage.
Customer: replied 1 year ago.
Could he be ordered to pay half the mortgage untill the propert is sold if it is proven that a binding contract exists between them?
Customer: replied 1 year ago.
She has approached the mortgage company regarding a cash offer on the property. If accepted this would create a shortfall. If he is legally bound to pay half the mortgage is this the same with a shortfall? Would he be expected to pay half of any shortfall?
Expert:  Thomas Judge replied 1 year ago.
It all depends on what is written on this binding agreement
Customer: replied 1 year ago.
I dont understand how we establish what the sum outstanding is.
Customer: replied 1 year ago.
The court judgement declares that they are jointly responsible to pay 50% of the mortgage and any arrears until the property is sold.Also that he is responsible to pay the maintenance charges /service charge on the property along with any arrears until the property is sold. Can this be enforced in one application to the small claims court?
Customer: replied 1 year ago.
We have already settled one lot of arrears over £1000 and the maintenance arrears have accrued to £1,700 approx. Can we make the claim based on these figures?
Expert:  Thomas Judge replied 1 year ago.
It is clear that there are ongoing debts - but you can calculate his half and what he has not paid to crystallise the debt at the time you apply to the small claims court - i.e. what he owes to date

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