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perhaps a little more info. I haven't defaulted on my mortgage but there is a second charge over the property. The only way the owners of the second charge (HSBC) could get the full amount back would be to force me to sell. Can they do this?
Thanks again
The outstanding liability is a hangover from my company going bump last year and we have been negotiating with HSBC ever since (around 8 months now). Technically I'm not sure if we are in arrears as it has been an open negotiation (I mean we have offered sums of money to settle the debt) but we certainly haven't paid anything since the company went under. They have rejected 2 offers so far, still asking for the full amount to be settled. I have another thread going on this but I really just wanted to know if they could force us to sell.
Not that I'm an expert, but I would say they cannot force you to sell your home unless they have a court order!! they don't just get a court order, you can defend this. I'll have a look on your other thread and see if I can point you in the right direction
Just a couple of questions -- are you able to make the monthly payments to HSBC? Were you and your former partner jointly liable for the whole amount or did you each sign separate documents? are you working at the moment? do you have any children living with you?
They have said they will only entertain monthly repayments after all assets are realised, ie sell the house first. We are jointly liable and yes I have 2 children, 1 of 7 and 1 of 3
If the house is owned in joint names then it would be very difficult for the charge holder to force the sale. This is due to the fact that the interests in your children outweigh the charge holders.
The area of law which we are talking about is The Trusts of Land and Appointment of Trustees Act 1996; specifically sections 14 & 15:
Powers of court
14. Applications for order.—
(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.
(2) On an application for an order under this section the court may make any such order—
(a)relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or
(b)declaring the nature or extent of a person’s interest in property subject to the trust,
as the court thinks fit.
(3) The court may not under this section make any order as to the appointment or removal of trustees.
(4) The powers conferred on the court by this section are exercisable on an application whether it is made before or after the commencement of this Act.
15. Matters relevant in determining applications.—
(1) The matters to which the court is to have regard in determining an application for an order under section 14 include—
(a)the intentions of the person or persons (if any) who created the trust,
(b)the purposes for which the property subject to the trust is held,
(c)the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
(d)the interests of any secured creditor of any beneficiary.
(2) In the case of an application relating to the exercise in relation to any land of the powers conferred on the trustees by section 13, the matters to which the court is to have regard also include the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.
(3) In the case of any other application, other than one relating to the exercise of the power mentioned in section 6(2), the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests).
(4) This section does not apply to an application if section 335A of the M7 Insolvency Act 1986 (which is inserted by Schedule 3 and relates to applications by a trustee of a bankrupt) applies to it.
So, in a nutshell, if the house is a 'family home' then the charge holder will have to wait.
Many thanks sequenci. Does this apply even if my wife signed the docs too? She was company secretary at the time but the house is in joint names.
Also, as this is joint and several between myself and former business partner I'm guessing the bank would take a dim view to trying to go through this process for both houses but I am only guessing.
Many thanks sequenci. Does this apply even if my wife signed the docs too? She was company secretary at the time but the house is in joint names.
Also, as this is joint and several between myself and former business partner I'm guessing the bank would take a dim view to trying to go through this process for both houses but I am only guessing.
This is an area I'm not 100% in. would you mind putting your query to Business Debtline on 0800 197 6026 [free service]
Make sure you tell them the house is in joint names and you have children living there!
Forced sale of property?
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and we have been negotiating with 
Originally Posted by jamcatella
