Sorry for my delay in getting back to you, but thanks for your detailed response; you have given us some food for thought. My siblings and I will be catching up with my brother and his partner sometime during the next 3 weeks to get an update on the situation. Once we have done that I will be in a better position to make a call to you worthwhile so I will be in touch once I'm ready so that you can submit another premium service proposal.
In the meantime, I agree that it is theft. This situation has of course had an impact on family relationships but we are still hoping to get to a resolution amicably. I believe that talk of police would lead to a big rift and as such we would only mention this at the point where we are prepared to go ahead with this option. We would definitely not use it as a threat.
I would just like to ensure that I understand your response. Are you saying that if we wish to go the police route that my dad would need to write to my brother and his girlfriend saying something like..(see bolded text and lined area below).
I have taken advice and been advised that as this money was issued with the purpose of being held on trust to buy properties and has not been used for that purpose, it has been stolen and as such the matter should be immediately reported to the police. However, I would prefer to avoid this provided the following can be organised within xxx (state a suitable timeframe i.e.up to one month):
1. An immediate written and signed admission that the money was given for (state the specific purpose - buying houses etc) under the following verbally agreed terms stated below (briefly state these), but was instead used without permission for other purposes including courses and living expenses as you have previously stated.
2. A written and signed proposal for how all future monthly interest payments will be paid in full starting from xxx (state next payment month).
3. A written and signed proposal for how the additional debt of £xxx with be repaid in a timely fashion. This amount covers the monthly mortgage interest payments that you have missed from xxx (state time period) which I have needed to pay on your behalf. Please see breakdown of debt on separate sheet.
4. A written proposal for how the £100k will be paid back to the mortgage company at the end of the interest only mortgage period. This agreement will end in (xxx month/ year) at which point the mortgage company will expect full repayment of the £100k
I would rather avoid this route but in the absence of a satisfactory reply, I will have no other option.
As stated in my initial inquiry, in relation to points 2 & 3 above, they have to pay the mortgage company interest on any part of the 100k withdrawn from the mortgage companies holding account. They have missed quite a few payments over the last approx. 3 years and for the last 1.5 years my dad has had to cover that bill in full or part or risk repossession of this house.
My brother has recently began paying half of the amount due and my dad is paying the rest. As my brother and his partner are currently estranged she has refused to pay her share based on him apparently not paying his share of other shared debt in her name. This is not something we are getting involved in but part of our follow up with them is about the legal advice she said she was going to get.
There are also a couple of other points you mention that I am unclear about and need to be able to explain this to my siblings.
- You say 'meanwhile, grant a charge against their personal houses, and do so within the next 21 days'
- Are you advising that we do this now within the next 21 day or within 21 days of us informing them of police action?
- I am not sure this matters as they do not presently own any personal houses, they rent, but what is the significance of the 21 days?
- Instead of a charge on property could this also be a county court judgement application?
- Based on the fact that they do not currently have properties, could a compensation order still be issued?
- You say ‘the matter will be referred to the police with a view to bringing a criminal prosecution’
- I am unclear what you are referring to here, will the charge on their property (if pursued) be referred to the police or should this text be included in the letter from my dad? So to informing them that if my dad does not hear from them, the matter will be referred to the police for criminal prosecution.
- Also just to be clear in terms of criminal prosecution are we talking potential jail time or just as you said the ability for a compensation order to be issued and indisputable confirmation that the money is owed.
- Lastly, while we are still trying to be amicable, do you think mediation would help? I’m thinking that they would have to be open and honest about income, expenditure and creating a firm plan. Or is this not something that mediation can force them to disclose and adhere to if they do not want to?