My Husband is being chased for a shortfall from some 10 years ago from a mortgage he had with his ex-wife. We are currently fighting it but in the worst case scenario if they put a charging order on our new house (in joint names) could they still obtain an Order for Sale and force us to sell even though 50% of the house is in my name and I have nothing to do with the shortfall, and obviously do not want to sell.

Thanks

-- Julie (jmj260101@aol.com), January 24, 2004

Answers

The idea of a charging order is to secure the debt over a property in the same way as a mortgage. The property secured has to be owned in whole or part by the debtor and may be subject to a normal mortgage.

There is no easy and straightforward answer to your question as to whether a sale could be forced because this would depend on firstly an application being made by the former mortgagees, and also on the value of the property as opposed to the shortfall debt.

By the way, you don't own 50% of the house, you own it in full as tenants in common or joint tenants with your husband - tenants in common is the usual setup for man and wife and means each has a distinct share and can pass it to someone on their death. The reason I say this is because you cannot state to a court "I own half of the house - you can touch my husband's half, but not my half"

What you need to do is see a solicitor if you have not already done so - specifically about the 6 and 12 year "rules" - you don't say who the lender is, but if they are part of the CML, they have a voluntary code not to come after shortfalls after 6 years.

Your solicitor will help put the lender to strict proof - don't try and go it alone against a former mortgagee as the rules are complicated and a solicitor will be able to fight it off, or failing that, get you the best deal.

Now obviously if you do lose and the charging order goes over your house - so long as you pay what is agreed and when, the CO will not be "enforced".

Hope this helps

Good luck

David

-- David J. Button (davidjohnbutton@supanet.com), January 25, 2004.