How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ash Your Own Question

Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
75100385
Type Your Property Law Question Here...
Ash is online now

This is a matter of a charge on a UK property for a mortgage

Customer Question

This is a matter of a charge on a UK property for a mortgage defaulted upon on a property in Portugal.
Submitted: 1 year ago.
Category: Property Law
Expert:  Ash replied 1 year ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

Could you please explain your situation a little more?

JACUSTOMER-p7e39zbo- :

Hi. We were granted a mortgage by Totta Santander on a plot of land 1/3 of an acre overlooking the 18th tee on a golf & country club in the Algarve. They valued it at 850,000 euros and offered us a mortgage to build of 600,000 euros. Unfortunately, we defaulted on that mortgage and only got planning permission in the very late stages of this. The mortgage company have repossessed the land but to our knowledge have not attempted to sell it or dispose of it in any way. Unbeknown to us, as they sent notification of a claim to another Portuguese address. We did not receive this notification and as such they were awarded the sum of £525,000 as a result of the claim. We have been made aware of it now, as a hearing to push through a charge for this amount on our UK property is being heard.

JACUSTOMER-p7e39zbo- :

The hearing is tomorrow, as we were delayed in asking for the judgement to be set aside. We were wrongly advised on the fees involved. So the situation is, will the district judge consider setting aside and as the mortgage company seem to be seeking to not only take possession of some valuable land but also claim an amount of money greater than the amount of the mortgage too.

Alex Watts :

But there is a CCJ in Portugal right?

JACUSTOMER-p7e39zbo- :

No. The judgement was made in Manchester. No court action was taken in Portugal, they simply took possession of the land. The property ws held in an offshore company in Delaware and actually, no charge had ever been registered. We could have feasibly kept the land.

JACUSTOMER-p7e39zbo- :

The mortgage was granted by the UK arm of Santander.

Alex Watts :

Ok - have you applied for Judgment to be set aside yet?

JACUSTOMER-p7e39zbo- :

Yes. It was received on Friday but the judge has said to my husband that we ought to attend the hearing anyway and he will make his judgement then. What is he likely to say which will hamper this setting aside?

Alex Watts :

Have you actually APPLIED to set the Judgment aside in a formal application?

Alex Watts :

Has the Court listed the Judgment set aside application?

JACUSTOMER-p7e39zbo- :

I sent the paperwork in a formal application which the judge has in his possession. I paid £155. It is not listed as he seems to want to speak about it at the hearing tomorrow which will deal with whether Santander can register a charge on our UK property.

Alex Watts :

So you have not had a notice of hearing of your application to set aside?

JACUSTOMER-p7e39zbo- :

No. The application was received ten days ago but had the incorrect fee. I re sent it and it was only received on Friday. My husband called the court today and was told that the application would be considered during the hearing about the possible granting of a charge.

Alex Watts :

Ok - it may not be considered as the other side may not have notice of it

Alex Watts :

So if it is going to be considered you have to show:

Alex Watts :

1) You have a realistic prospect of successfully defending the claim

Alex Watts :

But not receiving proceedings is not enough. You need to show you have a defence to the claim

Alex Watts :

2) You also need to show you acted promptly from the time you found out.

Alex Watts :

Therefore if you have a defence to the claim then it can be set aside and indeed the application may be heard when you next attend Court.

Alex Watts :

Or it may be adjourned to allow the other side to make representations and the charge adjourned generally

Alex Watts :

Can I clarify anything for you about this today please?

JACUSTOMER-p7e39zbo- :

In the application I told the judge that we were not living at the Portuguese address. Santander made no attempt to deliver the documents to our UK address which they had. In any event, they have possession of valuable land. Is it feasible/legal to take possession of the land and also seek more than the amount borrowed? How can the charge/amount owed be quantified when no attempt has been made to dispose of the land?

Alex Watts :

Yes they can seek more than the amount borrowed if there are fees and legal charges to add which you are contracted to pay.

Alex Watts :

There needs to be no attempt to dispose of the land. If you owe the sum then you owe the sum under contract.

Alex Watts :

If they later sell it those proceeds will be deducted.

JACUSTOMER-p7e39zbo- :

That is ridiculous. We may as well have held on to the land and attempted to sell it ourselves. What possible benefit is there in the repossession? Is this what happens when a house is repossessed by a bank normally?. They throw you out, demand the money and maybe try to sell it later?

JACUSTOMER-p7e39zbo- :

What is to stop banks stockpiling property when there is nothing in place to force them to sell first? If ever?

JACUSTOMER-p7e39zbo- :

If that is the case then you are effectively telling me we have no defence.

Alex Watts :

The thing is this, its the same as if your house gets repossessed in the UK

Alex Watts :

The lender will ask for the FULL outstanding balance.

Alex Watts :

So lets assuming you owe £245,000 - that is what they will ask for

Alex Watts :

They will get Judgment in that sum

Alex Watts :

If they later then sell the property, then THOSE sums are deducted from what is owed

Alex Watts :

They can't double dip

Alex Watts :

So they can't claim it from you and then claim 100% of the proceeds.

Alex Watts :

They MUST offset it

Alex Watts :

But as for the Judgment debt then yes, they can claim the full amount until sold

Alex Watts :

The process is exactly the same in the UK

JACUSTOMER-p7e39zbo- :

Well then, I cannot see it as being able to be defended. Even if the judgement is set aside tomorrow, they will simply claim it again and the charge will be attempted again. is that what you are saying?

Alex Watts :

You do need to have a valid defence for it to be set aside.

Alex Watts :

Such as the mortgage was defective, they are in breach of contract or they have not followed any relevant mortgage protocol

JACUSTOMER-p7e39zbo- :

And you are saying that this is not valid?

Alex Watts :

Forgive me, 'this' being what?

JACUSTOMER-p7e39zbo- :

They actually didn't follow protocol. It was a turnkey loan but they deposited the full amount immediately.

Alex Watts :

Did you raise that in your application to set aside?

JACUSTOMER-p7e39zbo- :

The money was supposed to be drip fed at certain stages of the build. At the time of the money being deposited, we had not even been granted planning permission.

JACUSTOMER-p7e39zbo- :

I didn't raise it because until you mentioned that to me, it wasn't something I had even thought would help.

Alex Watts :

Ok - then you may have a defence but really you needed to have put this in your application to set aside.

Alex Watts :

But you need to show you have some defence.

Alex Watts :

Can I clarify anything else for you?

JACUSTOMER-p7e39zbo- :

Will this thread help at all?

Alex Watts :

For interest the Court rules can be found here:

Alex Watts :

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

Alex Watts :

It may help.

JACUSTOMER-p7e39zbo- :

Would I be able to use this thread as something to show the judge?

Alex Watts :

Yes

Alex Watts :

But it must also be disclosed to the other side

JACUSTOMER-p7e39zbo- :

Would the fact that the mortgage was not as it appeared to be a valid defence? What are common breaches of protocol?

Alex Watts :

I dont know what the Protocol is in Portugal as I am a UK lawyer so couldn't say

Alex Watts :

But if the mortgage was not as it appeared may be a defence, but if you have had it for say 10 years the Court might say, well you clearly were not bothered if you have only raised this today

Alex Watts :

Can I clarify anything else for you?

JACUSTOMER-p7e39zbo- :

Not really. I don't think you are remotely interested.

Alex Watts :

You have rated BAD SERVICE despite me giving you the legal test as to what is set aside

Alex Watts :

What else do you want to know?

Alex Watts :

I did say I dont know anything about the mortgage Protocol in Portugal so I can't help there. Their law is different to UK law.

Alex Watts :

Besides saying that they can claim full Judgment (which is what they do in the UK), the test to set aside and that you need to show you have a defence - what else is it you want to know or help with?

JACUSTOMER-p7e39zbo- :

I have used this service before and I can honestly say that I have never had the impression that someone was disinterested and eager to end the conversation. There was very little constructive input from you and should you have been my barrister/lawyer I would have been very underwhelmed. Also, if you knew nothing about Portuguese law, you ought to have declared that before taking £33.

Alex Watts :

I see you posted this in English law, you didnt post it in EU law which is why I picked up the question

Alex Watts :

The question related UK civil procedure rules which I can help you with

Alex Watts :

However I have looked at the posting history and can't see other questions.

Alex Watts :

I am happy to continue to help you but when I ask can I clarify anything, I want to make sure that everything I have said is understood and no further help required

Alex Watts :

If you do need further help I am happy to continue until you have all the information you need.

Alex Watts :

Perhaps you can tell me what Protocol procedures they have not followed and we can discuss it froim there.

JACUSTOMER-p7e39zbo- :

I have. You have it above.

Alex Watts :

What you need to do now is prepare a full defene.

Alex Watts :

* defence *

Alex Watts :

You need to set out everything that you are relying on

Alex Watts :

So if things have not been done you need to set out what, how and why

Alex Watts :

Or what has not been done

Alex Watts :

You need to plead everything in the defence.

Alex Watts :

You need to serve that on the court and the other side

Alex Watts :

Once the Court can see what your defence is and points made it is more likely to grant set aside.

Alex Watts :

However if and only if they served the Court documents at an address to which they KNEW you were not at, could you claim it is what is called an irregular Judgment

Alex Watts :

But you need to show they KNEW you were not there.

Alex Watts :

If that is the case then you can ask the Court to set it aside, regardless of whether or not you have a defence.

Alex Watts :

It would be called an irregular Judgment and the Court can set aside.

Alex Watts :

Does this help?

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.


If the system won’t let you please click reply.



Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Remus2004

    Remus2004

    Barrister

    Satisfied Customers:

    2427
    Over 5 years in practice.
< Last | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Remus2004's Avatar

    Remus2004

    Barrister

    Satisfied Customers:

    2427
    Over 5 years in practice.
  • http://ww2.justanswer.com/uploads/TG/TGraham12/2012-7-17_81212_bigstockBusinessHandshake508163.64x64.jpg Thomas's Avatar

    Thomas

    Solicitor

    Satisfied Customers:

    414
    UK solicitor holding an England and Wales practising Certificate.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    42
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law.
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    4708
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/AS/Aston Lawyer/2013-10-8_19517_JAPROFILEPICTURE.64x64.jpg Aston Lawyer's Avatar

    Aston Lawyer

    Solicitor

    Satisfied Customers:

    1823
    LLB(HONS) 20 years of experience in dealing with Conveyancing and Property Law
  • http://ww2.justanswer.com/uploads/CH/chathamchamber/2011-4-24_191833_1.64x64.jpg chatham-chamber's Avatar

    chatham-chamber

    Solicitor

    Satisfied Customers:

    828
    LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)
  • http://ww2.justanswer.com/uploads/CL/clairep80/2013-8-25_191218_dreamstimexs267279822nd.64x64.jpg Clare's Avatar

    Clare

    Solicitor

    Satisfied Customers:

    241
    I have been a solicitor in High Street Practise since 1985 with a wide general experience.
 
 
 

Related Property Law Questions