Joint, but Seperate liable agreement ?

greenspun.com : LUSENET : Repossession : One Thread

I appologise in advance if this seems a liitle long winded. Here's the background as to how I have come to owe a mortgage shortfall.

I took out a joint mortgage with my ex-partner when I was only 18, he was 32. We had the property for a little under a year when our relationship ended, that's when the financial difficulties began. He left and beteen us we just couldn't afford the mortgage. I kept in touch with the TSB and in March 1999 I handed the keys back to them in a voluntry repossession. I subsequently kept in touch with them informing them when I changed address etc. I had tried to sell the property for 7 months before the voluntry repossession, I recieved a letter from a solicitors acting on behalf of the TSB in the July of 1999 stating that I owed them 18,000....My property was valued at 38,500 and they, after only 4 months of marketing my property had sold it at auction for 26,000 !

I at only 21 and very scared by the whole situaion contacted a local solicitor. I had nievley thought that I would only owe half the amount of the shortfall as it was a joint mortgage, only to find out that I had apparently signed a "Joint, but seperate liable aggreement". Since they couldn't find my ex they were content to chase me for the full amount, as in their own words "I was good for the cash, my ex wasn't" ! I was about to start university and my solicitor "unofficially" advised me that If I could keep out of sight for 5 years the debt would not be persued. It's 4 years 6 months now, I moved, changed my name (Legitimately, as you can do in Scotland)and haven't even whispered for credit, I turned down a switch card that went with my current account !. I have stayed off the electral role and I do not pay council tax as I am a student. So if I can last the next 6 months I should be ok it would seem ?, wrong this is what I had originally thought but a friend of a friend recently informed that if my ex, has either made written contact or a payment to the mortgage lender the 5 year period begins again from the last date that he made any contact !

qu: Is this really true ?, even although I have made a damn good job of dissapearing, its all for nothing if he has paid them anything say last year ?

qu: Does this justafiably effect me as it was a joint but seperate liable aggreement ?

qu: I don't know where my ex is, is there amy way that I can find out if he has made contact with the mortgage lender ?

qu: Considering that I am now finished Uni and working for a decent enough wage, about to get married next year and will obviously want to buy a property again in the future, if he has contacted them, should I either, :

*Try to raise some cash to offer a settlement ?, if so how much would the minimum that they are likely to accept be ?

OR

*Should I fight them ?, If I did would I have any grounds ?...The mortgage was a complete dead horse from the start, I had no proof of income, my ex had just changed jobs and we had a county court judgement against our names from a previous landlord, which was settled just before, i.e one week before we got the mortgage to the managers knowledge, may I add. They sold us the most horrific deal that you can imagine, being as how I was young and nieve and he was basically stupid !

I am very distressed with this situation it has hung over me for over 4 years and the stress of it all has cost my health to suffer, with frequent trips to my GP because of a bowel complaint induced by stress and dramatic weight loss, I would appreciative of any help or advice that anyone could offer me, I just don't know what to do ?

Thanks in advance, much appreciated.

Catherine.

-- C.Irvine (shortassfrazz@yahoo.co.uk), October 21, 2003

Answers

If YOU avoid acknowledging the debt and do not make any part payment for a full six year period, then YOU ONLY are in the clear. If your ex does the same, then he too will be in the clear - the Statute of Limitation applies to you separately.

The six years would have been 12 as it is a deed under seal for a mortgage contract - however, LLoyds TSB are in the CML who have voluntarily stated that if you are not contacted within 6 years of the default (usually the second/third missed payment) then they will not pursue you.

So if we take March 1999 - you will be free of this matter in April 2005 unless they find you and you acknowledge the debt or make part payment before then which would start the six year period off again.

I think this answers your questions.

-- David J. Button (davidjohnbutton@supanet.com), October 21, 2003.


Catherine, the rules in Scotland may be different to English law. If your property was in Scotland then you should seek the advice of a Scottish Law Centre or Citizens Advice Bureau.

-- Lexie (lexie.fabriane@ntlworld.com), October 21, 2003.

David J. Button (davidjohnbutton@supanet.com),

Do you know if this is the case for this type of joint agreement nationwide, I am in scotland as was the property ? I did recieve a letter from them in May 2001, however, I re-sealed the envelope convincingly enough and wrote on the front : return to sender unknown at this address. The letter was addressed to me in my previous surname, which was puzzling as I had moved into my new address under my new surname and it is rented accomodation through a housing association who cannot disclose any information about their tennents due to the data protection act. I assumed at the time that they must have found my ex and somehow through various people he had given them my address. I have however never recieved anything since. I did fill out an income/expence form in July of 1999 but nothing else, as soon as they sent back a re-payment schedule wanting 280 a month from me I vanished, I never paid them a penny. I did contact the national debtline about this and it was them that firstly informed me that it would only be a 5 year period as I am in Scotland, and secondly that if he had made any payment or written correspondance to them within the last 4 & a half years that this would directly effect me and the 5 year period would start from then again for us both. As you stated David, the Statute of Limitation applies to me separately. That's what I thought, that's what my solicitor had advised me in 1999, that would make sense as they themselves stated to my solicitor that they could hold either of us responsible to pay the amount owed and although it was a "joint mortgage" other than 2 names on the mortgage agreement that was as "joint" as it got, they said that we were basically being treated as 2 seperate parties. Can anyone shed any light as to if this is indeed the case in my situation in Scotland.

Again many thanks for the reply's. Catherine.

-- C.Irvine (shortassfrazz@yahoo.co.uk), October 22, 2003.


I know you are in Scotland post-repossession, but was the property concerned also in Scotland?

I am not an expert on the differences in Scottish law but I do know that if the property concerned was in the England part of the UK as opposed to Scottish, then the debt will be governed by English law, not Scottish.

My advice would be to remain as you are - don't respond to anything and certainly after the date I gave earlier, you will be in the clear. In the meantime, do not worry about something that might not happen - see if it happens, if it does, deal with it then, not now!

Old saying "If you have nowt, they can't take owt" So even if they do catch up with you, if you have no other income apart from DSS/DWP benefits and don't own your own house in other words you are the proverbial "man of straw" then they will quickly realise you are not worth pursuing. It's when you have property or a decent income that they consider clobbering you!!!!

-- David J. Button (davidjohnbutton@supanet.com), October 22, 2003.


Catherine,

I would suggest you contact a Scottish solicitor. I know Moira (who posts on this site quite regularly) is fighting a Scottish mortgage shortfall, and has found an experienced and helpful Scottish solicitor, I think it would be a good idea to contact her. Furthermore, you need to check whether you have acknowledged the alleged shortfall in writing, sending in an I&E form (depending on the wording) may have done this, a solicitor would need to check all the paperwork you've sent the lender. When correspondence is sent to the lender it should always state that you do not acknowledge the debt and that you deny liability, otherwise (under English law) the limitation period can restart. Any third party operating on your behalf should do the same e.g. solicitor/debt advisor. If they do work on your behalf, cover yourself by sending them a letter (recorded delivery) stating that you do not want them to acknowledge the debt on your behalf, it has happened! Don't get stressed out by all this, your health is more important than all the gold in China. Good Luck.

Mark.

-- M Amos (idgroms@hotmail.com), October 22, 2003.



To everyone who has replied, many thanks. David I am a newly qualified nurse do you think that will count as a decent enough income to clobber !!!..lol, I don't !. The property was in Scotland as I have always been so I will take advice and contact a scottish solicitor to attempt to clarify my situation, just were I stand, not contacting or pulling my head out the sand in anyway. I reckon that in July 1999 when I filled out that income/expense form I probably addmitted liability for World war 2 never mind my debt, I had just turned 21 the week that I recieved it and had a real panic on, don't think I stopped to read it just filled it in and sent it back !....To be honest that's ok though as it was in July 1999, due to the 5 year limit in Scotland that still puts me in the clear after July 2004, theoretically anyway. I will endevour now to get the information that I need from my original solicitor, he was quite good and specialized in property law, I ll have to pay him now though as theres no legal aid ! Once I know I will post what I can find out.

Incidently I reckon I will take advice and keep my head in the sand, done it this long wont hurt to keep it up, I wont be applying for any credit, I certainly wont be voting so I will remain low and hope for the best. I will undoubtadly want to invest in a family home in the future, one thing is for sure, It wont be for at least 2 years and I would never apply for a mortgage until I knew wether or not the debt had been "written off" or was still active. I have not one scrap of paperwork relating to either my mortgage or the repossession, so Ill pray that I don't have to come out the woodwork and fight as it would be a difficult one to get going with !

Many thanks again Catherine.

-- C.Irvine (shortassfrazz@yahoo.co.uk), October 22, 2003.


Catherine,

Have you seen the Scottish Legal Aid Board (On-line): http://www.slab.org.uk/

Mark.

-- M Amos (idgroms@hotmail.com), October 23, 2003.


Catherine

Moira here (Mark mentioned me)....I am in Scotland, house bought in Scotland and going through the same carry on.

Only recently I was advised by a solicitor that the lender must start action to recover any mortgage shortfall within a period of 5 years. It is important to note that this area of law is covered by the Prescription and Linitation (Scotland ) Act 1973.

As lenders read this and my lender will identify me I don't want to give them the privelege of knowing the exact Section of law so I will e mail you directly.

However it is the case that unless the lender makes a relevant claim* and the "debtor " has not acknowledged the debt the matter will be time barred under Scottish Law after 5 years.

The five years will start either at the date specified in the contract ( the mortgage deed - which usually the lender won't provide a copy of) or before which payment is due. If no such payment is specified in the contract the date for which a written demand for repayment of the sum or part of it, is made by the creditor to the debtor.

It is a bit complicated and there is more to it.

This info was given to me by a corporate solicitor but she is going to give me the name of a solicitor in Scotland who specialises in this. I should have it in a day or two and I'll send you their details.

Hope this helps and feel free to e mail me direct.

For once I think Scottish Law might come up trumps!!!

Moira

-- M (Anderston828@aol.com), October 23, 2003.


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