Help urgently required

[northcurry1]

My uncle, who's wife passed away a couple of years ago is facing losing his home for two reasons:

1 His stepchildren are trying to contest his inheritance of the family home (his wife died without making a will)

2. Due to ill health the mortgage, to which he is not a signatory, has not been paid for a while and the bank are trying to repossess the house.

I need help with the second of these issues as the probate matter is in the hands of a chap who up till now is doing a great job but mortgages are not his area of expertise.

The mortgage was taken out in 1989 in just his late wife's name, he was wrongly advised at the time not to apply as he was going through a divorce at the time, and indeed, his name was never put on the deeds of the house.

The mortgage, we have recently discovered was applied for using false information by his late wife with the help of and possibly at the behest of a fairly unsavoury, and unlicensed, financial advisor. I am informed the original mortgage application is in his handwriting and he has since, I am told gone to prison for various dishonesty offences. The falsehoods told in the mortgage related to his late wife's employment and income.

I am told by the FSA that this mortgage is essentially unregulated but I need to know whether the CCA 1974 applies in any shape or form, the law is so contradictory on this I am just going down blind alley after blind alley.

I cannot even tell with any certainty whether the rules on fairness of contract terms apply, and if they do is it the extortionate test or the new unfair one.

Is this matter worth raising in a defence to the mortgage repossession action and saying "I am happy to repay the mortgage if the court decides it is fair for me to do so and if the mortgage is not unfair"

I cannot see the justice of enforcing this mortgage which would possibly mean him losing his home when it was obtained fraudulently and not by him.

Any thoughts please, we are in court next week and he is getting more stressed by the day.

 

[jules12345]

Interesting case were they joint tenants by any chance ?
if they were joint tenants she wouldn't need to make a will dying first - A and your uncle would be the full owner once she died - meaning the children get nada unless he makes a will.

B - If there is a contestancy to the mortgage ie the bank want their share and it will only be in regards to the outstanding amount - then he will get the rest once the bank sells the property.

fighting the bank would be madness IMHO

Hope this helps ...!

always check with a pro solicitor im only an LPC student.

 

[northcurry1]

I did say in my post his name was never put on the deeds of the house, he is not on the mortgage nor does he yet have a legal ownership of the property.

 

[northcurry1]

Plus she never made a will.

 

[jules12345]

"If the title to the property is unregistered (which is now becoming quite unusual) then you need to look at the conveyance to the two joint owners. The wording is less specific than with registered land but at some point there should be a clause which states that the property is conveyed to the purchasers "........as joint tenants" or "..........as beneficial joint tenants" or ".....as tenants in common". This shows the position as it was at the date of that conveyance - it may have changed -"

http://www.questbrook.co.uk/joint.htm


regards
Jules

 

[jules12345]

Plus she never made a will.

thats what im saying - she wouldnt make a will if they were joint tenants.

regards
Jules

 

[jules12345]

A - Dont fight the bank as above IMHO
B - If the mother was owner as you suggest, the kids mioght have a claim if they have special needs of any description.

If they were joint tenants - as above..!

have you seen the deed at all - does it say Mrs Smith and husband as joint tenants or the likes ?

were they married AFTER she bought the property, if not did he provide value to the property as the kids might get some/all..!

Regards
Jules

 

[northcurry1]

He was never and has never been a legal owner jointly or otherwise of the property, his claim for ownership for the house is purely an equitable one. Joint Tenants or not is irrelevant because he was never a legal owner of the property.

 

[jules12345]

did he provide value to the property (help pay the mortgage etc) ?

 

[jules12345]

did he provide value to the property (help pay the mortgage etc) ? Or was there a previous husband who provided value to the property...? If there was, and your uncle didn't provide any consideration to the property the previous husband might well have a claim (were the children his etc )..!

The property is obviously being held on trust until things are clarified, if they weren't joint tenants...!

Your uncles partner died intestate but that doesn't mean that he will benefit from the trust unless he provided some sort of consideration to the property and then of course you have familial/non familial matters to consider...!

If your uncles wife was previously married and the previous husband provided consideration to the property, but not your uncle, it will be him and his/the children who have a claim probably.

What is consideration I hear you ask - predominantly the court will decide this, but basically 'value', but that could include cleaning the house, or washing the dishes for years on end.

It seems in this instance to me you have a classic case of a purchase of money resulting trust and very interesting it was too, thanx for posting this scenario.

Always ask a pro Im only an LPC student.

regards
Jules

 

[northcurry1]

He paid the mortgage on his own throughout the 19 years they lived in the house together. He has an equitable interest in the house you are right through the doctrine of resulting or constructive trust. My probate chap has sorted this all out. Can anyone help with the mortgage point?

 

[jules12345]

Thanx for the above and Im interested to know about the mortgage situation also. I read somewhere that in the USA there were 'illegal' home loans being granted and the banks dont have a right to foreclose as a result. This is being applied for in every state and millions of home owners maybe able to keep they're homes pretty much for free, the reason of course is due to the costs the banks might have to pay if found guilty of giving mortgages on fraudulent mortgage/home loan claims. Sorry I cant help further.

regards
Jules