is my mortgage legal?

S

shane44

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Can anyone put a light on this question I co own the family home with my dad I took out a mortgage and used deeds as security I'm in arrears 6 years bank hasn't threatened repossession just takes small amounts per month it turns out the bank never asked my dad for his prior written consent as a co owner for me to get a mortgage I am told the mortgage is illegal is this the case.
 
Well if you're joint tenants of the property, and your Dad didn't execute any mortgage documents, your bank are simply unsecured lenders. You still owe the debt obviously but your bank won't have any valid security interest over the property.
 
What do you mean by family home?
What do you mean the bank 'takes' small amounts per month?
How did this mortgage come about.
If you co own the property and you took the mortgage, it would seem to me the only thing the bank can go after is your half share. They can't touch your dad's part if he didn't borrow or co sign for a loan on it.
Who told you the loan was illegal? Obviously it's not illegal to give a loan.
 
Bronte said:
If you co own the property and you took the mortgage, it would seem to me the only thing the bank can go after is your half share. They can't touch your dad's part if he didn't borrow or co sign for a loan on it.
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That's only true if the property is held as tenants in common. If the OP and his Dad hold the property as joint tenants (which is a far more common form of co-ownership) then there is no distinct interest in the property that the OP could grant security over.
 
Bronte said:
What do you mean by family home?
What do you mean the bank 'takes' small amounts per month?
How did this mortgage come about.
If you co own the property and you took the mortgage, it would seem to me the only thing the bank can go after is your half share. They can't touch your dad's part if he didn't borrow or co sign for a loan on it.
Who told you the loan was illegal? Obviously it's not illegal to give a loan.
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Hi my mother and father owned the house my mother passed away so my father became full owner until he put my name on deeds as joint owner I was with bos then they sold my mortgage to tanager in April 2014 for less than half of the value the mortgage due bos could of easily repossessed house and got nearly full amount that's owed but they knew there was issue's with the ownership my father passed away in June so my case is not straight forward a sc told me that it would be very hard for any bank to repossess the best thing for them would cut me a deal as it would most likely be a unsecured debt now.
 
A sc told me its not straight forward case now that my father has passed away but it shouldn't matter as the bank made a huge mistake and if it is said by a judge that it is a unsecured debt can I ask for my deeds back from bank.
 
It is very hard to read your posts because you don't use any punctuation.

I suggest that you need to have someone look at your deeds and walk you through the different situations you've outlined.

So: the house was originally owned by both your parents.
You mother died.
Your father gave you an interest ( all? or some?) in the property. There must have been a solicitor involved. And a Deed. Or a Transfer.

You say you raised a mortgage. Are you sure? Is there a chance that you have an unsecured loan only?

It is most unlikely that any bank secured a mortgage on the property, without your father's consent, unless he had transferred the entire legal title to you.

The senior counsel who gave you the advice may have had difficulty understanding your position. Unless he had access to all the information.

I don't think the Bank will give you back your deeds. Is there any prospect of you ever being able to repay the debt? Can you sell and clear the debt?
How much is the debt? How much is the house worth?

mf
 
In the lrish statue book it saids in section 30 in regarding co ownership subsection one/two anyone who co owns a property cannot sale lease or get a mortgage on the property without the prior written constent of the other co owner any such dealing is both void in law and equity.
 
mf1 said:
It is very hard to read your posts because you don't use any punctuation.

I suggest that you need to have someone look at your deeds and walk you through the different situations you've outlined.

So: the house was originally owned by both your parents.
You mother died.
Your father gave you an interest ( all? or some?) in the property. There must have been a solicitor involved. And a Deed. Or a Transfer.

You say you raised a mortgage. Are you sure? Is there a chance that you have an unsecured loan only?

It is most unlikely that any bank secured a mortgage on the property, without your father's consent, unless he had transferred the entire legal title to you.

The senior counsel who gave you the advice may have had difficulty understanding your position. Unless he had access to all the information.

I don't think the Bank will give you back your deeds. Is there any prospect of you ever being able to repay the debt? Can you sell and clear the debt?
How much is the debt? How much is the house worth?

mf
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Sorry about fullstops etc but my father put me on deeds as joint full owners with himself, when I took out the mortgage I handed over the deeds to the solicitor and it turns out the bank nor the solicitor done a basic search of who owned the property it seems the bank made a huge mistake this was back in 2003 when the bank's were throwing money at people.
 
Sarenco said:
Well if you're joint tenants of the property, and your Dad didn't execute any mortgage documents, your bank are simply unsecured lenders. You still owe the debt obviously but your bank won't have any valid security interest over the property.
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Fully agree with mf1. It's not really possible to provide any meaningful advice at this remove - a solicitor would really have to review all relevant documentation.
 
Hi Shane! This is certainly not the black or white issue that you are considering. If the deeds of the property are held by the bank, they will hold an equitable interest in the property. Also, if yourself and your dad were joint owners of the property his interest would have passed on to you following his demise. Assuming that BoS never registered a charge on the property they cannot progress for possession. However, they hold a legitimate debt in your name and they also hold the deeds of your property. They can go to Court for a Well Charging Order/Order for Sale on foot of their equitable interest or they may progress for judgment against you and register this against the property. Either way you are going to have to pay them to get your deeds back.
I have a similar scenario in respect of a customer who deposited his deeds with our bank and we never progressed to register a charge. The client died and the executor requested the deeds back. We refused to return the deeds until the debt was paid. The matter progressed for some time with solicitors for both sides refusing to budge. It did not progress to Court as the associated costs would probably be more than the property was worth. Eventually we agreed a compromise settlement to accept 75% of the value of the property and w/o the balance.
 
As I mentioned in my earlier post it's not an unsecured debt. The Bank will not release your deeds unless the loan is repaid. You should approach hem anyway to request the release of the deeds as there is no harm in asking. Get your solicitor to formally write to them.
 
shane kirwan said:
Thanks for that if it is a unsecured debt what happens about my deeds
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Hi thanks for that but the thing is bos never asked for my father's prior written consent before they have me the mortgage, I have been in arrears since 2009 and they have since sold on my mortgage to a private equity firm for less than half of what I owe I have read in the Irish statute book that once a mortgage is given without consent of other co owner the mortgage is void in law and in equity.
 
44brendan said:
As I mentioned in my earlier post it's not an unsecured debt.
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I wouldn't necessarily jump to that conclusion.

Just because the bank is in possession of the title deeds doesn't necessarily mean that they are entitled to retain same. You would really have to look at all the relevant documentation before concluding that the property owners intended to create an equitable mortgage or that the mortgage deed executed by the OP was valid in the first place.
 
Hi Sarenco. My point is that there is likely to be no mortgage deed as a solicitor would not have completed one in the name of 1 of the property owners. However the Bank do hold an equitable deposit which is conferred on them purely by the giving over of the title documents. The OP's difficulty now is that the bank will hold on to the deeds until the loan is repaid or alternatively they may take the long and expensive option of progressing for well charging order/order for sale on foot of their equitable deposit. In order to avoid the debt becoming statute barred they are likely to progress for judgment. There is unlikely to be any "free pass" here for the OP.
 
shane kirwan said:
Doing it up, and put most into my business that has since collapsed
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Odd to get a mortgage to fund a business. How much was doing it up and how much for the business. Are you sure it wasn't a loan versus a mortgage? You borrowed the money, you owe the money, you agreed to repay it back, they have your deeds, they're unlikely to let you have the deeds, without a mega legal costly fight that you'd probably not win, you have an asset, methinks the bank has you.

Where are you quoting the statute from? Who told you about that?
 
Hi 44b

Understood but my point is that the bank may not actually be holding the title deeds as an equitable mortgage. From what the OP has told us, there is at least some doubt as to whether one of the joint property owners consented to the deposit of the title deeds with the bank in the first place.

I certainly agree that this has nothing to do with the validity of the loan itself and the bank could ultimately proceed to seek a well charging order and an order for sale on foot of a judgment mortgage (rather than an equitable mortgage).

If I was in the OP's position, I would keep my head down and let sleeping dogs lie.
 
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