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Ask Clare Your Own Question
Clare, Solicitor
Category: Law
Satisfied Customers: 34905
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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my ex husband is attempting to get a new mortgage on his property

Customer Question

my ex husband is attempting to get a new mortgage on his property to pay back the charge i have over it. None of the triggers have happened, and he has not made the mortgage company aware of the conditions of the charge that forbid him increasing the value of the outstanding mortgage in order to pay me. is this fraudulent activity?
Submitted: 3 years ago.
Category: Law
Expert:  Clare replied 3 years ago.
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Why was that clause put in - it would seem sensible for him to raise the money and pay you off?
Customer: replied 3 years ago.
The charge is very explicit, and says he may not remortgage for more than outstanding on the First Mortgage and I will postpone the charge until my daughter's 18 birthday, or he cohabits for a period exceeding 6 months. He delayed paying me the first part of my settlement for over a year. He tries to constantly disrupt contact (we have a shared care order) and runs me down to our daughter all the time. We ran a successful business together for ten years and he ran down the valuation for the form E. Due to past events, I do not trust him at all. I didn't mind walking away, and my barrister told me that something smelled when I got a very poor result. The reason I hAve a charge is to protect my investment. The promptly is currently worth 550K, but with around 50k spent on it it would be worth in excess of 1.2 million. I suspect he wants me off the charge so I will not benefit if he decides to do this. I have spent over 120k having to fight him all the time.
Expert:  Clare replied 3 years ago.
How much are you due to receive - and are you sure that the restriction is that he cannot increase the mortgage UNLESS he pays you off - this would be the usual wording
Customer: replied 3 years ago.
I know you are trying to be helpful, but I do know the charge inside out and backwards, I am sure of what I say, and my original question was, is my husband committing fraud by not disclosing the legal charge and it's conditions on his mortgage application. I already have excercised my right to postpone the charge. Believe me, I do know the terms.
Expert:  Clare replied 3 years ago.
It would be exceptionally unusual for any court to make an Order which would not allow you to be paid early - it would not make sense.
The clause that you describe is used to prevent the amount outstanding on the mortgage being increased to YOUR detriment - paying you off before your daughter is 18 will be viewed as being to your benefit not your detriment.
Clearly he had to take out a mortgage and you agreed to postpone your charge to come second to that - if he can pay you off in full there is no need for you to postpone it further - you will be paid
However in answer to your question - no he has not committed any fraud by making an application in this way.
If he received the money and did not discharge your charge - that would be fraud
Please ask if you need further details