At the last court hearing the judge was going to award me the FMH and my almost ex would keep his business and a flat he owns which he rents out. The FMH has a second charge on it to guarantee a business loan my ex had. The loan was put in joint names at the time which I assume is because the house is jointly owned.
The judge has asked my ex to ask the bank to remove this guarantee, which he could do as he has other business assets it could be guaranteed on, however, he is refusing to do so as he is bitter that his name has to stay on the mortgage for the FMH.
If the judge still awards me the house, can the deeds of a property be transferred to my sole name even with this charge on it?
You will need the consent of the lenders of both charges before a transfer of equity can take place.
It is not always a given that consent will be given as it were so it might be worth asking the question of the lenders before you get to the point of your final hearing in case you cannot get the consent then at least you will know the answer so that the judge can be informed of the situation and an alternative solution found.
With regards to whether your stbx is happy about being on the mortgages or not, if the judge orders you the property and the lenders give consent, he will not have a lot of choice but to be on the mortgages unless you are able to discharge them
Sorry, I should have said that mortgage lender are okay with it and bank that has second charge said they would be okay as long as my stbx can provide an alterntaive guarantee. He has told them he can''t (which isn''t true as it could be transferred to another business asset or his flat which has enough equity) so lender says they can''t do anything if he doesn''t give them another guarantee.
I''ve had 4 final hearings now just because stbx is obstructive each time, and penal notices are a waste of space.
In that case, I would get as much information together by going through his form E with a fine toothcomb to show that he can give an alternative guarantee so that when you go to court you can produce this information clearly to the judge. Point out that you have already had a number of final hearings and that clearly he is just trying to stall and see if you can get the judge to make an order.
I have not yet been to my final hearing (it is in september this year) and I have a solicitor (not sure if you are self repping) so perhaps someone else might be able to give their opinion on whether this would be the best way to go but would be my instinct.
If my ex defaulted on the loan payment, can the bank (who have the second charge) make me sell the house to repay the loan? As this is the home for me and my children, is there any way this can be fought?