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help - ''Best endeavours to remove me from mortgage

  • Mark1234567
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16 Oct 12 #361277 by Mark1234567
Topic started by Mark1234567
Hi all. Im divorced and the court order states:-

All equity in the FMH goes to her
She must use best endeavours to remove me from the mortgage.

I moved out, she moved out of the FMH but she is now renting the FMH out. I do not agree with this and have spoken to the Mortgage Lender but they cannot do anything. (it should be a change of mortgage, yes?)

What she should be doing is removing me from the mortgage (she cant as she cannot afford the property) - i wont agree to a Buy To Let mortgage as i want off of the property.

The only advice the mortgage lender gave me was to call the Police and get the ''squatters'' moved out as i dont agree with them living there. They will also write a ''strongly worded letter''........

Any thoughts or ideas please on this?

  • Emma8485
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16 Oct 12 #361292 by Emma8485
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If I remember rightly your wife doesnt work? Which will mean that it will take a significant amount of time to get a re mortgage of any kind in order to remove your name from it.

I guess what I would say is does it matter to you that she isnt living there and what are the circumstances of her moving out - i.e. is it now too small for her needs, is this a temporary thing, was she struggling to pay the mortgage and now the rent covers the payments and she rents somewhere smaller? Did you both take legal advice before agreeing an order where she cant actually afford the property?

Finally, what outcome would you like from you not being happy with her renting it out? For her to move back in, sell etc?

I dont actually think the mortgage lenders advice is correct, as technically only an "owner" can ask for squatters to be removed but if they have a tenancy agreement they arent squatting - and I dont know if by being on the mortgage but not the deeds (which I assume was part of the Consent Order when you transferred your equity and interest in the proeprty to her) if in fact you are an owner or not?

I guess a lot depends on what outcome you would like too.

  • QPRanger
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16 Oct 12 #361310 by QPRanger
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Hi Mark

I''m afraid ''Best Endeavours'' is just a judge''s cop out: it means she has to write to your mortgage company stating that she wishes to take the mortgage on on her own, they will no doubt say no chance, and the judge sits back satisfied in the knowledge of another job well done....

And yes: I am talking from bitter experience!
In fact I would be surprised if ANYONE has ever had any joy with one of these ridiculous ''best endeavours'' clauses....

  • .Charles
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16 Oct 12 #361327 by .Charles
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It''s actually due to the fact that the judge cannot order the mortgage company to transfer the property from joint to sole names - it is outside the court''s jurisdiction.

The ''best endeavours'' clause allows the court to revisit the issue if the person does not use their best endeavours although this is subjective. A clear cut case would be if a person won the lottery but didn''t pay off the mortgage or transfer it to their sole name - the court could then intervene.

Charles

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16 Oct 12 #361328 by QPRanger
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But the judge will put this ''best endeavours'' clause in knowing FULL WELL that no mortgage company in their right mind would accept the person based on the info already disclosed to him...

And when I brought up in my Directions hearing 3 months later the fact that my procrastinating ex had not even bothered to contact the mortgage company to even ask about getting me off the mortgage his response was virtually a shrug of the shoulders...

  • eyes on horizon
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16 Oct 12 #361356 by eyes on horizon
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This is why triggers need to be clearly defined. i am in the exact position but one of my triggers was non occupancy for longer than 3 months, she either had to remortgage and if that failed it went on the market.
I was afraid of the exact situation taht you speak of now.

  • .Charles
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17 Oct 12 #361395 by .Charles
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QPRanger wrote:

But the judge will put this ''best endeavours'' clause in knowing FULL WELL that no mortgage company in their right mind would accept the person based on the info already disclosed to him...


This is the inequity of giving assets to the person with the lower earning capacity. Their needs are greater than their ex, so they get more assets. However, where there is a mortgage, the mortgage company is unlikely to give up their security on the grounds that joint owners separate which means that the outgoing party is tied to the mortgage. Why would they?

The court can do nothing about this situation other than to order a sale of the property in every case with these circumstances. Unfortunately this doesn’t work if it renders a party, and any children, homeless. And it certainly doesn’t work in a negative equity situation.

And when I brought up in my Directions hearing 3 months later the fact that my procrastinating ex had not even bothered to contact the mortgage company to even ask about getting me off the mortgage his response was virtually a shrug of the shoulders...


Playing devil’s advocate, did your ex have the wherewithal to release you from the mortgage or was it a pointless exercise even asking?

When settlements are reached which involve a transfer of property which is encumbered by a mortgage, the question of consent to transfer the mortgage should come up at an early stage.

Being in the position that you are, it is frustrating to reach an agreement or be subject to an order which transfers beneficial interest away from you but leaves you in the firing line with the mortgagor.

Fortunately, mortgagors have been more understanding in recent years and will lend against a new property even if you are named on a different mortgage. Of course, the recession has made this more difficult but that’s another issue..

Charles

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