WA Can't afford to service the mortgage

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Joe Black

Well-Known Member
9 January 2019
25
3
124
Hi,
I am the sole name on the matrimonial home loan and land title. I can now not afford to service the mortgage. My ex has a legal interest in the home due to marriage. She does not contribute to the mortgage and when asked if she would, she has refused.
We are going through the financial settlement part of the divorce and the house has been valued by 4 real estate agents and they have all seem to be in the same price area. There is very little equity.
Can I put the house on the market, sell the house and then place the equity in trust until we can agree the finances. The only alternative is the mortgage is not serviced and falls into arrears, ruining my credit rating etc.
 

CSFLW

Well-Known Member
LawTap Verified
24 September 2018
196
17
459
Joe,

Yes, if she agrees to sell the house you can put the money from sale in to interest bearing account where you both have to sign to draw funds.

It is better than a having it sit in the lawyers trust account.
 

Joe Black

Well-Known Member
9 January 2019
25
3
124
Joe,

Yes, if she agrees to sell the house you can put the money from sale in to interest bearing account where you both have to sign to draw funds.

It is better than a having it sit in the lawyers trust account.
I agree, however she has not agreed to anything in 2 years. It's all court orders all the way as she gets legal aid.
Will I need to do an application in case asking the judge permission to sell the house.?
 

CSFLW

Well-Known Member
LawTap Verified
24 September 2018
196
17
459
Do you have lawyers?
 

CSFLW

Well-Known Member
LawTap Verified
24 September 2018
196
17
459
Okay, you could file an application in a case on an urgent basis to preserve the asset pool.

With the application make sure you file an updated Form 13 to let the court know your situation.

If you need any further help email us [email protected] we can give you some help.
 

Joe Black

Well-Known Member
9 January 2019
25
3
124
Just me. The ex was living here but could not afford the Payne ts and moved out and I moved in.
Like I said I am the sole name on the title and mortgage. Surely I should be able to sell with out her agreement as long as its sold at market value and the money held until we sort the finances?
 

Atticus

Well-Known Member
6 February 2019
1,053
168
2,394
Like I said I am the sole name on the title and mortgage. Surely I should be able to sell with out her agreement as long as its sold at market value and the money held until we sort the finances?
I reckon if you can find an agent that is happy to list it under the circumstances then do it.... Be aware though that when she finds out it's listed she will probably be advised to place a caveat over the title which will may make a sale problematic... I would be engaging a solicitor & placing the proceeds after the mortgage is paid out into a their trust account pending a settlement..

If you can't get it listed the other option is to approach the bank for interest only payments pending a final settlement after sale.... If there is little difference between what you are paying & interest only & you just can not meet the payments on your own, then the other options are to rent or sub let....

Finally, If you have a property settlement FILED WITH THE COURT (not just mediation but an actual case filed) then in the event that payments were stopped the bank can not foreclose while the property is the subject of a settlement before the court.... Well not unless they apply to become a party to proceedings anyway... Not likely unless the settlement is stalled for some time.. I don't believe they can make an adverse report to credit ratings agencies under those circumstances either but I'm sure someone will correct me if I'm wrong on that..
 

sammy01

Well-Known Member
27 September 2015
4,157
595
2,894
I'd be selling it. You don't need her permission. Just get it on the market and she can put some effort / money into getting a caveat placed on it. Maybe she will, maybe she won't but if she isn't playing nice up the ante.