I have a joint mortgage on the family home with my wife I also have a sizeable joint and several loan on a commercial property with a business partner which is in default as he stopped paying and I couldn't afford to keep it paid on my own so I stopped paying also. The question is if I sell the family home to up size will the bank be able to seize my half of the proceeds?
1. At the outset, you have to realise that the bank needs to obtain judgment against you before it can seize anything belonging to you, such as proceeds from a house sale. I assume you are not going to pay the proceeds from the house sale into the bank account with this bank and give the bank a right of combination of accounts. Accordingly, at this stage, the bank have to obtain judgment against you on the commercial property loan and then seek to enforce it before your other assets are at risk. HOwever, be aware that if the bank does that, then any share you may have in the family home is at risk. Then bank cannot touch any share in the family home, your wife may have, but it can seek to sell your share. You might want to consider if you are up-sizing, in what name will you buy the new home. It may be more prudent to have it in your wife's name if the bank are going to pursue you on the commercial property loan.
So i assume by your answer that it would be best to proceed with the sale and then purchase under my wifes name ahead of any judgement being recorded. Am i right in thinking that the solicitor would write two cheques, one to pay down the mortgage and the other to be given to a seperate bank account belonging to my wife? If the bank got wind of what I was at how fast could they organise a judgement ?
Barrister 17 years experience
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