Hi Haggis

No, worst case scenario the trustee could raise an action of division & sale to force the sale of the property. But as I say, that's worst case.

Mark

Hi Haggis.

Just stepping sideways slightly, how much do you believe your home to be worth currently? How much is still owing on your mortgage?

Mortgage is £43k and the house is valued around £95k. My total earnings including tax credits and wages are just under £15k per annum so a mortgage of £43k is top end for me. I am so sick with worry as lived her with my son since he was a baby and now dont know what the future holds because the idiot I married has been on a marathon spending spree.

We split up 1st January 2001 - have not saw him for nearly a decade. I tried so many times to get all the legal stuff done i.e divorce transfer of title but couldnt locate or he ignored everything until this year. I have paid around £20k mortgage payments on my own for nearly 11years -- this isnt disputed. I have slowly modernised the house new windows/heating system etc - spent thousands over the years and looks like thanks to this carry on my son and I are going to lose our home

Hello Haggis.

Having to worry about this does seem so very unfair on you after all of the steps that you have taken.

We're obviously unaware of some of the detail that your solicitor has. I do hope that they'll be able to work with you to get you through all of this OK.

Hi Haggis

Unfortunately this is not uncommon. The normal scenario is a couple divorce and one party agrees to transfer their half share to the other. This is done by Minute of Agreement and is perfectly legal and binding.

However if the property is not actually transferred per the title deeds, then the half share reverts to a trustee should the person sign a Trust Deed or petition for sequestration.

I sincerely hope that given the circumstances, the time period and the money you have paid in the last 11 years will allow you to reach a compromise with the Trustee.

Mark

Hi Haggis. You really do need to seek legal advice - preferably from a solicitor who specialises in insolvency.

There are legal precedents where people in your situation have successfully argued in court that due to the fact that they alone paid the mortgage for a prolonged period then this should be taken into account when assessing a trustee's interest. Hopefully it wouldn't come to arguing this in court but at the very least it would be useful as a powerful argument in any negotiations if necessary.

I'll try to look out the relevant information for you.

quote:

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Originally posted by Kevin Mapstone

Hi Haggis. You really do need to seek legal advice - preferably from a solicitor who specialises in insolvency.

There are legal precedents where people in your situation have successfully argued in court that due to the fact that they alone paid the mortgage for a prolonged period then this should be taken into account when assessing a trustee's interest. Hopefully it wouldn't come to arguing this in court but at the very least it would be useful as a powerful argument in any negotiations if necessary.

I'll try to look out the relevant information for you.

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Thank you for giving me a little bit of hope. My solicitor who was dealing with the transfer of title is on holiday till Monday so I have to wait till then. What you have stated is what I would have hoped for - as up until now it seems there is absolutely no help or protection for the innocent parties i.e my son and I. I just cant believe that nobody contacted me when my property is involved in such a thing. I am so sure he wouldnt have admitted to having a joint mortgage. I was told today if he had then there would have been a possibility of him paying £500 to protect it or something - if thats true then how I wish he had of contacted me as I would have paid that! But then if I am going down that road of "I wish" then I wish I hadnt of married the twat.

Hi Haggis.

In terms of the £500 it really would have depended upon whether the property had any equity at the time that the trust deed was signed.

If there was equity at that point in time this possibility would not have existed. It only really applies where there is no equity or negative equity.

Of course, the trustee would not have known to suggest this if the property wasn't disclosed to them.

quote:

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Originally posted by Trust Deed Assistant

Hi Haggis.

In terms of the £500 it really would have depended upon whether the property had any equity at the time that the trust deed was signed.

If there was equity at that point in time this possibility would not have existed. It only really applies where there is no equity or negative equity.

Of course, the trustee would not have known to suggest this if the property wasn't disclosed to them.

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Thank you - thats something I suppose that the £500 wouldnt have been applicable.

I would have thought a credit check would have been done on him before the trust deed to properly ascertain the full extent of his debt - and that way the property would have been spotted!

I spoke to the bank today - thankfully they are very supportive and very helpful (and also very sympathetic). I asked them what would be the very most I could borrow if I was to remortgage and take on extra - after working everything out my limit is £45000 - my current mortgage is £43000.

The irony here is I have no bank loans, no credit cards, no provident loans, no backstreet loans, no HP, - just a mortgage. If I cant afford it then I dont get it.

I am feeling more confident now. I have spoken to a Trust Deed 'person' for last 2 hours on the phone - he is a friend of a friends husband. At last I feel there is a little hope for me with regards being a victim in all of this. I have also got out all paperwork for the major improvements done in my house over the past 10 years inc new kitchen, bathroom, windows, doors, central heating system etc and that alone comes to nearly £25k plus I have paid £23678 myself in mortgage payments. So not really a clear case of him or the trustee getting a straight 50% of the equity either in circumstances like mines.

Hi Haggis.

You certainly do have some very good arguments that could help to protect your position. You also have the moral high ground.

As Kevin said, finding the right specialist legal support could be important if it comes to that.

Hi Haggis. Sorry for the delay - I finally managed to look up that case law that I mentioned. The case was McMahon's Trustee vs McMahon (1997, SLT 1090).

As I understand it, a decision was made in this case adjusting the trustee's interest in a property to take accopunt of the fact that the wife of a debtor had been paying the mortgage herself over an extended period after the debtor's business had failed.

Might not be exactly the same circumstances but is not too different either. As I said before, I'd have thought that your problem should hopefully be sorted out by some negotiation with your ex's trustee, and if you have a good solicitor helping you then they should be able to use precedents like this case as leverage.

Thank you so much Kevin - very helpful. Am dreading whats ahead of me, really am. I still dont (yet) know amout of his debt. I googled his name along with "trust deed" and came across the Edinburgh Gazette so now know when this started....June, but not the amount.

He has used his mothers address for the trust deed - as he is living with his partner and child and I assume the dishonesty re address is to do with tax credits his partner is receiving - so much dishonesty.

Well I will keep the thread updated and thanks again Kevin and Amy.

Just want to say if i was in ur position, i would want the property to be valued at the time of him leaving and not contributing to the mortgage. Because surely ur ex should not be profiting on the property while ur been repaying. I would fight for it to be valused at the time of him leaving . Or would it work out at todays value and half of the mortgage repayments to be taken off of it, as he did not contribute ?