Transfer of Equity issues. Help needed...

DVardysShadow

holly_hobby wrote: »

Its the element of negative equity that is the issue, and why the lender has refused the TOE, its not a straight forward separation/divorce case, whereby the above order would be placed.

The only way to procure the releasement of the ex would be to reduce the LTV to back within the black, no other way I'm afraid.

Therefore a mortgagor ie the ex - can not be indemnified (be isolated) from being jointly pursued by the lender, for any unserviced debt - as a court wouldn't support it if the lender sought a pursuance order of the mortgagors.

Its like taking a personal loan, and having an indemnity policy written, stating that you can't be pursued by the provider re any default on payments.

If Antro. I've correctly understood what you mean re the indemnity policy - if not and I've got the wrong end of the stick .... I apologise.

H x

There is no indemnity policy [ie from an insurer] it is a deed of indemnity between parties to the mortgage.

Your big misapprehension is to view the lender as a party to such a deed. They are not. Thus the indemnified party is not insulated from the risk being pursued by the lender - but it does insulate them from the consequences insofar as the party giving the indemnity will have to reimburse the indemnified party.

It is however potentially a bit of a chocolate teapot for a property in NE as opposed to a property assumed to be in positive equity being transferred in a divorce - in that the NE means that the giver of the indemnity is less likely to be able to uphold the indemnity if it ever has to be called in.

holly_hobby

Exactly - my assumption was that this was designed to remove the ex from the lenders grasp - which as I said, nothing can do other than a TOE.

Thanks for Antro. for raising and explaining.

H

getmore4less

getmore4less wrote: »

If they(mortgage company) do the right things it can be a lot longer than 12 years.

The debt does not just disapear after 12 years from the date of the shortfall except in very specific circumstances.

holly_hobby wrote: »

Not sure what you're basing that comment on ? Its certainly not on statute - which in this case is the Limitation Act s20(1) and s20(5).

To be clear, the unsatisfied mge (capital ) debt may only be lawfully pursued through the courts for a period of upto 12 yrs from the event, with os interest pursuable for a period up to 6 yrs from the event. (it should be noted in fact that under MCOB and CML it is seen as good practice to pursue only for 6 yrs, but this is a voluntary timeframe, with the legal maximum remaining at 12 yrs as discussed above).

After this period has elapsed without payment or acknowledgement, it becomes Statue Barred. Which of course doesn't mean that the debt doesn't exsist, but that judicial pursuance/enforcement is no longer an option available to the lender, and it will not be displayed on any CRA records of the individual.

If however the lender secures a CCJ WITHIN the periods defined above, the mortgagor can not use the Limitation Act as a defence against payment.

And in such events if the OC wants to re-register an unsatisifed CCJ after the 6 yr registration period has elapsed, this would be with the express permission of the courts (which after 6 yrs of no satisfication, is rarely given TBH). If the Judge refuses the OCs application for extension, then the CCJ "drops off" as per any regulated debt at its 6th anniversary of registration, with any subsequent repayment agreement made between the OC/Assignee and mortgagor/debtor, then on purely a voluntary basis.

If the shortfall is in a repayment plan, the repayment schedule can of course be over any agreed extended period. If the repayment agreement is not maintained/satisfied, the statue clock starts from the date of latest payment or acknowledgement of the os debt. And its in THAT situation, that the statute clock and final date of lawful pursuance may be seen to exceed 12 yrs from the actual date of the event - but that is the ONLY situation where the 12 yr pivotal date of pursuance v event date, could be lawfully exceeded.

Hope this helps

Holly

So you agree. it is not as simple as wait for 12 years from date of shortfall.

Also change address and fail to notify the lender could scupper any chance to avoid the debt within the time limits.

Get any assets during that time and the lender could go after them so ask for a charge on any new property or petition for bankrutcy.

CCJ are never time barred(just drop off the public record after 6 years) and they can still apply to the court to enforce after the 6 years.

unlikely, well that depends how lucky you feel, and if you want to get on with your life with CCJ hanging over you.

holly_hobby

getmore4less wrote: »

So you agree. it is not as simple as wait for 12 years from date of shortfall.

It is if they don't ack for 12 yrs (notwithstanding CCJ). Only extended if acknowledged, but you didn't say that. You said that the 12 yrs doesn't really apply, if the lender plays it clever, and pursuance could in fact be for much longer - which is inaccurate.

Ignoring CCJs for a moment.

Sticking to the term for lawful pursuance (rather than MCOB/CML guide), the 12 yr extension from the date of the event, would ONLY apply IF the debtor acknowledged the debt within the 12 yr SB countdown ... ie - were in a repayment schedule of some kind (or otherwise acknowledged the debt) and then ceased payments. The SB clock would start from that point, which as I said could in theory exceed a period of 12 yrs from the date of event ... BUT ACKNOWLEDGEMENT HAS TO HAVE OCCURRED within that time.

Can't be debated - its STATUE.

Of course the lender, as discussed earlier may go the MCOB, CML route and only apply a 6 yr chase period - more akin to std LA80 regs and considered fair practice by the MCOB - in that case the 12 yrs lawful term is academic, and after 6 yrs of no acknolwedgment/payment or application of Judgement - they're effectively come out the other side.

The registration of a CCJ is again for an initial duration of 6 yrs (with a possible extension) - refer below.

getmore4less wrote: »

Also change address and fail to notify the lender could scupper any chance to avoid the debt within the time limits.

No, this has nothing to do with the statute time barred periods .... if the debtor does not acknowledge the debt, regardless of address changes, the SB clock keeps ticking. Indeed this is actually how some indiviudals keep the clock ticking when being pursued for os debts (not isoltated to mge shortfalls), to avoid facing collection agents and unwittingly acknowledging the debt.

The SB clock only stops (and recommences) at any POINT of acknowledgement within the SB count down period.

Ie - if a debt was not acknolwdged for 3 yrs - we lawfully have a 9yr residual SB count down on a mge sfall. If however, at yr 3, they acknolwedge the debt, either by a written or verbal response (but no payment is made) - the SB clock stops, and recommences for a further 12 yrs ....

If they make and continue payment, the clock remains frozen, and will do so until the debt is fully repaid (when pursuance is no longer relevant), OR the debtor ceases payments, at which the point the SB clock recommences a 12 yr count down.

But stopping/manipulating the SB clock, is not about the lender playing clever or the debtor varying addresses, it is only by virtue of the debtors acknowledgement that any effect can be applied to the SB count down - no matter how may address changes/house moves they have along the way.

ALTHOUGH - "gone aways" are duly recorded on the debtor, by creditors with the various CRAs, and obviously would have a negative affect on any future application for finance. But this recording of data has no effect on the SB clock.

getmore4less wrote: »

Get any assets during that time and the lender could go after them so ask for a charge on any new property or petition for bankrutcy.

A charging order may only be applied for by the OC, after the succesful awardment of a CCJ, AND if the CCJ is not adhered to. And even then, the court doesn't have to award a charging order.

A BO can of course be pertitioned for independently of any CCJ or Default.

getmore4less wrote: »

CCJ are never time barred(just drop off the public record after 6 years) and they can still apply to the court to enforce after the 6 years.

Yes, as I've previously explained CCJs are not statute barred, BUT the re-registration is only by application and direction of the court.

To which the OC or Assignee would have to prove their case, why it was not unfair on the debtor, if after 6 yrs of they being unable to have the CCJ satisified they wanted it re-registered. Where a Judge may be of the opinion, you had your 6 yrs to nail this, times up.

Which would be even more doubtful if the OC tried to re-register, following a delay between the expiration of the original order and their petition for its reapplication - the longer the delay between the 2 events, the more unlikely it becomes e.g you could have an expired CCJ and several yrs down the line the OC petitions for its re-registration - unless there were demonstrated extenuating and unusual circs preventing the OC from an earlier petition, they could expect to have their application rejected.

You must remember, I'm not stating my own view points or simply guessing what the procedures may/should be, I am discussing Statue Law (Limitation Act 1980) and its application to mge debt, and standard procedure of the courts - accurate info is important to all.

getmore4less wrote: »

unlikely, well that depends how lucky you feel, and if you want to get on with your life with CCJ hanging over you.

Yes .. again based on nothing more than personal opinion.

It is rare (but not unheard of) that OCs/Assignees do apply for re-registration of an expired CCJs, but as discussed above, their succesful petition for re-application is by no means a forgone by the Court ....... as it is completely at the discretion of the presiding Judge, whom will take into account the factors surrouding the case, judgement and basis for the petition.

Again, if the application for re-registration failed, there would no longer be a registered CCJ in respect of the unpaid SFall.

But as you do rightly say, this doesn't simply mean it disappears as never existed. But it does mean, that any subsequent repayment schedule would be entirely voluntary by the debtor - if talking of an expired CCJ as there is no longer an order for payment .. Or (in the absence of a CCJ) simply because its become SB. Whereby in both cases, the OC/Assignee is prevented from any further lawful enforcement procedures.

Of course the debtor having not paid for several yrs to suddently agree post SB or expired CCJ, would be a very rare instance indeed ..... however morally of course any SB issues, CCJ and the like, shouldn't even have raised their head, as the debtor/mortgagor owing the monies, should have duly entered into and maintained a repayment schedule with the creditor - unfortunately errant debtors don't always see things as clearly, morally or fairly I'm afraid ....

Hope this helps

Holly