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Moon phases


Shoosmith after debt from house repossession

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Post by Rachel on Thu Nov 08, 2018 4:58 pm

I had a joint mortgage with my ex. After we separated and we had signed legal agreement that he would take responsibility for the mortgage he stopped payments and house got repossessed. We are left with £35,000 debt.
Shoosmith took over recovering debt. I took advice from my lawyer as she felt my ex should pay it she advised me to go to the financial ombudsman. They took over a year to look into it but have said we are both liable for debt.
As Shoosmith have taken over this mortgage debt. Can it be treated the same as other debts using the 3 letters?

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Post by waylander62 on Thu Nov 08, 2018 9:20 pm

financial ombudsman is a joke !

it very much depends on this legal agreement that you had with your ex.

what reasons did the ombudsman state that made you still liable ?

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Post by Rachel on Thu Nov 08, 2018 9:51 pm

The legal agreement apparently (after being advised to make one by my lawyer) wouldn’t stand up in court regarding the house debt.
The bank messed up the process of repossession. They took 2 and half years to get the decree and sell the house. Hence the debt. They then went solely for me because they couldn’t find my ex.
The ombudsman thought the process was ok despite the bank lying saying I hadn’t signed papers and refused to be interviewed by bank. The ombudsman never asked for my evidence which I had in legal letters. They didn’t address my complaints. My lawyer said it was a mess and unfair that I should be held responsible.

I believe that Shoosmith have now bought the debt. And am wondering as I’m still disputing it, if I can deal with this in similar ways to the credit card debts.


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Post by waylander62 on Thu Nov 08, 2018 10:16 pm

unlikely that you would succeed as with the credit card route

not being funny but your lawyer seems a tad shite its ok saying its not fair but who drew up these agreement papers ?

shoosmiths are solicitors acting on behalf of the bank i am sure

there is a hell of a lot of information you need to be requesting here from shoosmiths, this is a whole different ball game to loans and credit cards.

lets go back to the start: you and your ex split, he agreed to pay the mortgage but didnt, the important part here is this agreement to begin with.

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Post by Rachel on Thu Nov 08, 2018 11:12 pm

Thanks, yes my lawyer drew up the separation agreement.
But it seems it relied on my ex playing ball and doing what he agreed.
(I think I’m going to get separate legal advice about my separation agreement as I’m not trusting my lawyer)
My lawyer basically has said as my name couldn’t be taken off the mortgage and the agreement didn’t involve the bank at the time that it won’t stand up in court. That the bank will still come after me for this debt.
Despite the agreement stating my ex would take sole responsibility for the mortgage payments.



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Post by assassin on Fri Nov 09, 2018 1:34 am

If an agreement is in force and it is legally enforced it becomes a contract and bound by English Contract Law and European Contract Protocols it is a legally binding contract.

If the now enforced agreement clearly states your husband would take sole responsibility for the mortgage it is him who is solely responsible and not you, it clearly states it in the legally enforced contract, if they cannot find him then its their problem and not yours, so a clear breach of contract. If your husband has accepted full liability then the only reason the bank would not remove you is so they have a name to claim against, so look at a possible seperate claim against your ex for breach of contract and with a full liability for expenses.
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Post by Rachel on Fri Nov 09, 2018 7:13 am

Thank you.
I’m in Scotland but will check this out too.

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Post by assassin on Fri Nov 09, 2018 6:46 pm

Contract law is slightly different in Scotland, but European Contract Protocols aren't.
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Post by Rachel on Fri Nov 09, 2018 6:47 pm

That’s what I was thinking too. Thank you

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Post by assassin on Fri Nov 09, 2018 6:52 pm

ECP is posted in full on the site so read it as opposed to trying to print it all off.
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Post by Rachel on Fri Nov 09, 2018 6:55 pm

I’ll find it thanks

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Post by assassin on Fri Nov 09, 2018 6:56 pm

Its in the Useful Information section.
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Post by assassin on Fri Nov 09, 2018 6:58 pm

Just a thought, if the property was in joint names then at worst you can only be liable for half the alleged debt and not the full amount.
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Post by Rachel on Fri Nov 09, 2018 7:06 pm

I’ve found the info on ECP thanks.
My lawyer was saying that all the bank cares about is getting the money and they don’t care who from. And if my ex isn’t available then it will be me to pay.
But I believe also, worst case scenario the debt should be split equally

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Post by daveiron on Fri Nov 09, 2018 7:16 pm

I believe you are both jointly and severally liable. However was that agreement done through a solicitor ?
If it was you should consider making a claim against him ,you would have paid him/her to produce on your
behalf a legal document.
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Post by assassin on Fri Nov 09, 2018 7:22 pm

(1) These Principles are intended to be applied as general rules of contract law in the European Communities.
(2) These Principles will apply when the parties have agreed to incorporate them into their contract or that their contract is to be governed by them.

Such as Scotland being a member of the EU as they are ratified into the law of all member states.
Article 1.103 - Mandatory Law

(1) Where the otherwise applicable law so allows, the parties may choose to have their contract governed by the Principles, with the effect that national mandatory rules are not applicable.
(2) Effect should nevertheless be given to those mandatory rules of national, supranational and international law which, according to the relevant rules of private international law, are applicable irrespective of the law governing the contract.

Scotland are in the EU so they are mandatory.
Article 1.105 (ex art. 1.103) - Usages and Practices

(1) The parties are bound by any usage to which they have agreed and by any practice they have established between themselves.
(2) The parties are bound by a usage which would be considered generally applicable by persons in the same situation as the parties, except where the application of such usage would be unreasonable.

Did he agree to pay the mortgage or not? If he did he has agreed to “usage”.

Article 1.201 (ex art. 1.106) - Good Faith and Fair Dealing

(1) Each party must act in accordance with good faith and fair dealing.
(2) The parties may not exclude or limit this duty.

He has already “excluded” this liability by not paying.

Article 1.301 (ex art. 1.105) - Meaning of Terms

In these Principles, except where the context otherwise requires:
(1) 'act' includes omission;
(2) 'court' includes arbitral tribunal;
(3) an 'intentional' act includes an act done recklessly;
(4) 'non-performance' denotes any failure to perform an obligation under the contract, whether or not excused, and includes delayed performance, defective performance and failure to co-operate in order to give full effect to the contract.
(5) A matter is 'material' if it is one which a reasonable person in the same situation as one party ought to have known would influence the other party in its decision whether to contract on the proposed terms or to contract at all. .
(6) 'Written' statements include communications made by telegram, telex, telefax and electronic mail and other means of communication capable of providing a readable record of the statement on both sides

1) He has agreed, but omitted to pay the mortgage, note OMITTED.
3) An “intentional act.
4) Non performance of an obligation, is this a written contractual condition
Article 1.302 (ex art. 1.108) - Reasonableness

Under these Principles reasonableness is to be judged by what persons acting in good faith and in the same situation as the parties would consider to be reasonable. In particular, in assessing what is reasonable the nature and purpose of the contract, the circumstances of the case, and the usages and practices of the trades or professions involved should be taken into account.

Do you think it’s reasonable to perform the stated contractual obligation? What would the majority of people in the same situation think.

Article 1.305 (ex art. 1.109) - Imputed Knowledge and Intention

If any person who with a party's assent was involved in making a contract, or who was entrusted with performance by a party or performed with its assent:
(a) knew or foresaw a fact, or ought to have known or foreseen it; or
(b) acted intentionally or with gross negligence, or not in accordance with good faith and fair dealing,
this knowledge, foresight or behaviour is imputed to the party itself.

Now the biggie, did his solicitors/advocates know or forsee anything they ought to have forseen, act with gross negliegence, and did they pass this information onto the party (your ex hubby)
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Post by Rachel on Fri Nov 09, 2018 7:34 pm

This separation agreement was drawn up with my solicitor. Passed on to his solicitor He agreed it and signed it and sent back to me and my solicitor.
He definitely said he would take full responsibility for the mortgage. He told me he had got advice and that he could afford it. Then he did not pay it. He then sent a letter stating he was no longer working and couldn’t afford it. And couldn’t afford to put house on market!!
I called his work and this was not true. He still has that same job today.
I’m not sure about the end part whether his solicitors foreseen and acted with gross negligence.
But I’m definitely going to look into this.
Thank you

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Post by waylander62 on Fri Nov 09, 2018 8:00 pm

This has got quite interesting , rachel if i were you i would not give up and pursue this at great length.

for what its worth this is how i see it ( not sure about scottish law though )

the mortgage was a contract between you your ex and the bank which would still be binding between the parties

the agreement for your ex to continue paying the mortgage would be a contract between you and your ex also probably binding, however i would bet that the bank were not a party to this agreement.

therefore as far as the bank and the mortgage are concerned the original agreement is still in place and the bank would argue that you are still liable under the mortgage contract,  if the agreement between you and your ex is a lawfully binding agreement then the bank would simply argue that it is nothing to do with the bank and it is therefore your responsibility to sue your ex for breach of contract, however we still want our money as per the original agreement.

the bank, if they have already repossessed the property would have had to have taken it to court to be able to do this, therefore you would or should have received court papers in relation to a repossession hearing, if you knew nothing about this then you have or may have a further argument in a defence ?

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Post by daveiron on Fri Nov 09, 2018 8:05 pm

Thats exactly as I see it waylander, It all seems to hinge on your and your ex's agreement.
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Post by waylander62 on Fri Nov 09, 2018 8:18 pm

@daveiron wrote:Thats exactly as I see it waylander,  It all seems to hinge on your and your ex's agreement.

unfortunately this is the way the courts would see it too, they would only be interested in the mortgage contract and the parties to that contract, the other contract would not even be looked at by the courts ( unless the bank were somehow involved )

the judge would likely turn to Rachel and say: so you need to sue your ex partner for his breach of your contract, however it is irrelevant to the matter in hand ( or words to that effect )

the other matter is whether Rachel was aware of the repossession hearing ?

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Post by Rachel on Fri Nov 09, 2018 8:24 pm

Yes I think this is correct waylander62 and daveiron.
Unfortunately I did know about the repossession.
And I tried to get him to sell the house before it reached the repossession point.

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Post by Rachel on Fri Nov 09, 2018 8:29 pm

This has given me the motivation and confidence to pursue it further.
Thank you all

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Post by waylander62 on Fri Nov 09, 2018 8:30 pm

@Rachel wrote:Yes I think this is correct waylander62 and daveiron.
Unfortunately  I did know about the repossession.
And I tried to get him to sell the house before it reached the repossession point.

this is a tough one , although it pains me to say it you really need proper legal advice.

i think your best way out of this would be to agree to only 50% of what is owed, ie 17.5K and try and sue your ex for it

but having not seen any paperwork i am assuming a lot, an expert legal in this field may be able to see a better opportunity for you.

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Post by Rachel on Fri Nov 09, 2018 8:33 pm

I am going to seek further legal advice. I may use a different lawyer and I’ll get free legal advice through Unison I believe.

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Post by Rachel on Fri Nov 09, 2018 8:35 pm

I am a lot clearer now as to where I stand and what can be done

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