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21/03/2023 7:26 pm
Hi, I'm hoping for some advice and direction.
I took out a trust deed in September 2017 and at the time of taking it I had a joint mortgage with my ex husband. I was assured when signing the trust deed that the mortgage would be included in it, but that while my ex was making payments, no payments would be made as part of the trust deed, this would only happen when he inevitably ceased paying. He stopped paying in 2018 and the mortgage company began the reposession process which was delayed through covid.
I was in contact with the trust deed company throughout and assured the shortfall would be included in the trust deed. The reposession proceedings were ongoing and the trustee included in court proceedings. Between the court proceedings beginning and the reposession being finalised, I was discharged from the trust deed despite asking them to wait until after the reposession was concluded.
The property recently sold and the mortgage company have sent a letter detailing the shortfall. The trust deed company are now refusing to assist and have today got back to me saying the mortgage shortfall is my responsibility to pay as the trust deed was discharged. In addition they are claiming the mortgage company was only listed under my list of creditors but not taken into consideration as it was a secured debt. This is the first time I have heard of this after being assured for the duration of the trust deed and when taking it out initially that it was included.
Is there anywhere I can go with this? I spent a long four years trying to get back to baseline to start building my life back again and this has thrown me, I feel they deceived and lied to me and there is now more debt than when I initially took the trust deed out if I had thought this would be the case, I never would have taken it as I don't want to have to go down that route again after starting to rebuild my life.
Any advice will be gratefully recieved!
22/03/2023 8:30 am
Welcome to the forum, Kiz1080. Â
The initial information you received was correct. The Trust Deed covers all of your obligations that existed when it was signed, including your liability for the mortgage. It does not affect the mortgage lenders right to enforce their security, which they have obviously subsequently done, but then you should not be held liable for any remaining shortfall regardless of whether this was only finally quantified after the end of the Trust Deed. The mortgage lender had the right to lodge a claim with your Trustee and if they didn't do so then they will have lost the chance to get anything further back.
I would suggest you write back to the mortgage lender and advise in no uncertain terms that as you have been through an insolvency since the mortgage was taken out then you are not liable for the shortfall, as per the Bankruptcy (Scotland) Act 2016. If they disagree then they would have to take court action to try to enforce payment of the debt anyway, so you would have the chance to defend your position to a Sheriff. It may be wise to seek independent legal advice, especially if it looks like coming to court.
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Scottish Debt Solutions Expert - Ask me for help setting up a Scottish Trust Deed or Debt Arrangement Scheme plan.
Topic starter
23/03/2023 9:19 am
@kevin-mapstone thank you so much for your response and confirming the information I was given initially was correct. It looks like I have some work to do with regards the mortgage company, which I had thought the trustee would have assisted with but your confirmation has given me such relief, I feel like a weight has been lifted already.
Thank you so much, I appreciate it immensely!
