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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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Hello, I have a banking question. Immediately before

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I have a banking question.

Immediately before my divorce in 2004, my ex organised to buy a block of land. He put his name on the title and my name on the mortgage. Mobile lender from the bank came to me at work and I signed the mortgage docs. It was never explained to me that I would own the debt and the ex would own the land. Bank wouldn't let me sell the block even though I had a buyer, they foreclosed on it because my ex wouldn't pay and there was a shortfall. I dealt with this with the bank back in 2005 re the duty of care to explain etc. I heard nothing from them again until 2011 when a debt collector called and I explained the situation to them. I heard nothing again until this week. What can I do?
Hello and thank you for your question.

If you signed the mortgage documents then on the face of it you are liable for the debt. It will only be if you can provide some satisfactory explanation as to your having been somehow misled as to the nature of the mortgage arrangement you were entering into, or can otherwise show that the bank has behaved inappropriately that the Ombudsman or a Court may consider setting aside the mortgage agreement which you signed.

It will not be enough to simply raise that the bank did not verbally explain the document to you, unless there is some compelling reason they ought to have done so. Typically, where mortgage agreements are overturned is where there is an obvious reason why the bank ought to have taken more care, such as where a customer has poor english skills, but it is also sometimes the case where the bank should have realised that the arrangement for the mortgage advantaged someone other than the person who would be bearing responsibility for the debt, such as where a mortgage is made to finance a relative, as in your case, but even so, cases like this turn on their facts and it would require a detailed examination of the circumstances in which the documnet was presented to you for signing and your explanation as to why you signed if you did not understand the nature of the document.

So if you think you have even a halfway credible explanation as to why you signed without realising the full implications of signing the mortgage, then it may be worthwhile engaging a lawyer to review your case in detail to assess whether you may have some ground for setting aside the mortgage, but absent such a consideration it is hard to see why a court would not hold you as bound by the agreement you signed.

If you need assistance locating a suitable lawyer, contact the Queensland Law Society as they can refer you to suitable lawyers in your area:

I appreciate the above may not be the answer you were hoping for, however it does reflect the law as it applies to your situation.

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Thank you and good luck.

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