Australia Law

Have Australian law questions? Ask a lawyer now.

Ask a Lawyer,
Get an Answer ASAP!

After the sale of a property which there is a shortfall,

Customer Question
After the sale of...

After the sale of a property which there is a shortfall, what options does FSP have in recouping the shortfall. I am concerned about the family home in which the FSP has no title, it is tenants in common with my brother

Lawyer's Assistant: The Lawyer will need to help you with this. Have you consulted a lawyer yet?

Not yet

Lawyer's Assistant: Is there anything else the Lawyer should be aware of?

It is very possible that the loan was a case of irresponsible lending.

Submitted: 2 years ago.Category: Australia Law
Show More
Show Less
Ask Your Own Australia Law Question
Answered in 2 minutes by:
2/28/2016
Solicitor: Leon, Solicitor replied 2 years ago
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,483
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advice but a guide to assist you.

Who is FSP? Is that the bank?

You and your brother are tenants in common in equal shares on title? If it is a loan are you both borrowers and if not the one that is not a borrower have they guaranteed it?

I cannot comment on irresponsible lending, the court will look at what you signed and what information you gave the lender.

Ask Your Own Australia Law Question
Customer reply replied 2 years ago
The loan I hold is with CBA,
the loan on the family home is with WESTPAC of which my brother and I are 50/50
Solicitor: Leon, Solicitor replied 2 years ago

Can you tell me which one is the one you are discharging?

Or are they both registered on title?

Ask Your Own Australia Law Question
Customer reply replied 2 years ago
I have 2 mortages
The first is with CBA, just me and my deceased mother as guarantor and the family home as security
CBA lent me 200% of the buy price on a hall in the middle of nowhere west of toowoomba. Sale price was $75000 - loan was $150000. When my mother died she left the family home to my brother and I, we refinanced with westpac thus removing CBA from the title and leaving them with no security on my loan.
They may have overlooked my personal affairs during this time as I had to go to the FOS concerning gross mishandling of my mothers death and the products she held with them. I accepted two payments from CBA which totaled $10000 during the FOS case.
A sale of the undesirable property has begun for $95000, this is not a default or repossession, its just the best price and the only offer in two years. I have notified the bank and get the impression we will negotiate payment of the shortfall.
Bear in mind when I notified them, they told me that my mother would be liable if there was a default and the family home was security. This total systemic error that she is still alive and they still have a title over the home is just the sort of thing that the FOS complaint was about in 2011.
Solicitor: Leon, Solicitor replied 2 years ago

Good Afternoon

If they do not have security over your mothers property they cannot do anything at the moment on that.

Has the FOS found that the CBA was negligent?

You say they paid you $10,000.00 what was that for an admission of guilt for doing the wrong thing?

If it is found that you owe the money you will be liable to pay even if the property is sold for less.

The bank can enforce the mortgage against you personally. Because your mum has passed away the guarantee is at an end.

They are not registered on her hose and they cannot at present do anything.

But if they get judgement against you then they can force the sale of your mothers house as you are an owner of a half share.

Your brothers share is unaffected and the only thing they can take is the equity because the mortgage to westpac has to be paid out as it is secured.

But the equity is only form your share.

Because your mum has passes away the guarantee is no longer in place and her estate cannot be held liable. Also if you are not the owners the estate is finalised.

Ask Your Own Australia Law Question
Customer reply replied 2 years ago
My brother and I are the owners of the family home, does that mean that the estate is not finalised?
CBA accepted no fault and the offer of money to end the dispute, I will be taking the complaint back to the FOS as issue of the mishandling of sensitive information, telling me my mother is still alive and that they with chase her, is still a problem.
In regards ***** ***** lending, all I gave them was a letter from my employer when I was fruit picking. Seems like they relied 100% on the guarantor and gave little to no thought as to whether or not I could service this loan.
Solicitor: Leon, Solicitor replied 2 years ago

Good Afternoon

I assume the house was initially in your mothers name and when she passed you then became the owners. This means the estate has been finalised.

They lent the money on the basis of 2 properties. The one you were buying and your mums.

How much money did you ask for? This is also important.

Ask Your Own Australia Law Question
Customer reply replied 2 years ago
Im still unsure of your answer concerning forced sale of family home
Solicitor: Leon, Solicitor replied 2 years ago

They cannot force a sale at the moment.

They have to sue you and get judgement.

Once they have judgement against you then they can seek a possession order of your assets. Then they can seek to have the house sold but they cannot touch your brother share.

Only once they have a judgement form the court can they start the process to sell the house you own with your brother. They can even declare you bankrupt if they want making your life very difficult. But they need judgement

Ask Your Own Australia Law Question
Customer reply replied 2 years ago
This all came about because I wanted to borrow $50000 for a commercial helicopter license. My mother approached the bank and rep suggested I find a cheap house for around $100000 and add the 50 on as renovations. Whether or not this can be proved I'm not sure.
Customer reply replied 2 years ago
There is no reason why I couldn't service a reasonable repayment schedule for the balance, but if they call in the whole debt in 90 days it could be a problem. Would I be mistaken in believing that after issuing a questionable loan, then mishandling a deceased estate and recently making another disturbing mistake, it would appear as though they haven't behaved in a manner befitting the largest and most profitable bank.
Solicitor: Leon, Solicitor replied 2 years ago

Good Afternoon

They may have suggested it but you did it and you acknowledged what was in the papers. But having said that you can argue that the bank manager suggested this knowing what you were going to do.

It is your word against his.

If he saw your financial position and knew you could not service it but prepared the application in a way to show you could, again it is your word against his, you have to set this all out.

You have to show they were aware of the reason for the loan and that you could not afford it but they set it up anyway.

I cannot see how they mismanaged the estate. They did not ask for the loan to be paid and you are very lucky. They could have asked to have the loan paid out before you and your brother became owners, meaning you would have had to sell the house.

This has not occurred. You leave the error of discharging the loan on your mums house out of this. Rely on their actions to give you the loan and what they knew.

Ask Your Own Australia Law Question
Customer reply replied 2 years ago
The mismanagement was to continue issuing letters in her name after death dispite me raising the issue on many occasions, giving incorrect information about her products, demanding payment before probate was given and starting legal action without any correspondence.
Solicitor: Leon, Solicitor replied 2 years ago

Good Afternoon

That is normal when someone passes. It is only once the estate is finalised they stop dealing with it.

You can raise the issue of misleading conduct.

You did not make any payments though from the estate did you?

They normally ask for payment of the debts once they know a party has passed away.

Ask Your Own Australia Law Question
Was this answer helpful?
Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
863 Satisfied Customers
Experience: Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience

Deborah Awyzio is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Deborah Awyzio

Deborah Awyzio

Solicitor

863 satisfied customers

Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience

Sean

Sean

Experienced lawyer

855 satisfied customers

Law degree with 1st class honours from Australian National University.

James G.

James G.

Lawyer

17 satisfied customers

Australian Legal Practitioner

Darren Kruse

Darren Kruse

Solicitor

16 satisfied customers

Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.

Leon

Leon

Solicitor

46,483 satisfied customers

BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Daniel

Daniel

Solicitor

5,833 satisfied customers

Bachelor of Laws (dist) Graduate Diploma in Legal Practise. Admitted NSW Supreme Court / High Court

James D. Ford

James D. Ford

Solicitor

1,600 satisfied customers

Consulting Principal at Nexus Law Group

< Previous | Next >

Related Australia Law Questions
I was wondering if it's possible to talk to someone over the
Hi I was wondering if it's possible to talk to someone over the phone - happy to pay a fee - for some brief property advice? Thank you … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
My daughter inlaw had a car accident in a carpark as she was
My daughter inlaw had a car accident in a carpark as she was reversing out of her space the other car involved was reversing as well but there is no proof of who reversed first except her boyfriend bu… read more
Leon
Leon
Solicitor
46,483 satisfied customers
My son was charged with shop lifting last Thursday night,
My son was charged with shop lifting last Thursday night, the value of the items were less than $300. My son has obtained rather an extensive criminal record over the past 5 years and was only release… read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I brought a car from a car dealership on 28 march 2018 in
I brought a car from a car dealership on 28 march 2018 in Southport QLD with good faith there was nothing wrong with vehicle. Same day when me and my partner drove home there was an issue with car, we… read more
Daniel
Daniel
Solicitor
Bachelor's Degree / Graduate Diploma
5,833 satisfied customers
I got a problem my ex partner is putting up a restraining
Hi I got a problem my ex partner is putting up a restraining order on means I live with her but I haven't abused or harmed her … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
Can a supplier keep the deposit you paid and also charge
Can a supplier keep the deposit you paid and also charge delivery for a recliner if you have been refused a bank cheque as payment and there was … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I have done some work on a costumer's car and he is refusing
I have done some work on a costumer's car and he is refusing to pay, so I did not let the car go, he went to the [police and they say that I can be charged is that true? … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I looked at a car with a view to buy with Titan Ford
Hi, I looked at a car with a view to buy with Titan Ford Melville, The car I test drove was black and I wanted a white car , they informed that they could get a white car in for me to see, I had to pu… read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
We are age pensionner and work as volunteers as president
we are age pensionner and work as volunteers as president and secretary of Brimbank Senior Citizens Friendly Group Inc. … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I run a dog grooming business. A recent ex employee is ising
Hi Pearl, I run a dog grooming business. A recent ex employee is ising pictures of my grooming clients taken on my premises while employed by me to promote her new business. I have asked her to remove… read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I need to speak to an Australian lawyer regarding a QLD QCAT
Hi, I need to speak to an Australian lawyer regarding a QLD QCAT question … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
My mother passed away 27th Dec 2015, I am co executor with
My mother passed away 27th Dec 2015, I am co executor with my brother and a solicitor. This has dragged on for way to long and I have lost all faith in the competence of the solicitor. My brother has … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
My bank-nab-has charge my a/c with a $2.50 fee since Feb
Second opinion] My bank-nab-has charge my a/c with a $2.50 fee since Feb 2016 on my lotto +tab a/cs,i rang them and they refunded the last 2 statemaents 28 but i have been charged 248 fee,s,starting f… read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I have a flex loan from west pac they have no account number
i have a flex loan from west pac they have no account number what do i do … read more
Leon
Leon
Solicitor
46,483 satisfied customers
What is the position in Victoria with unsecured debt managed
What is the position in Victoria with unsecured debt managed by ACM group and threats to bankrupt a former creditor of nab or sheriff warrant outstanding debt going back 11 years … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
I've been going through Mortgage fraud as I was put in an
Hello my name is ***** ***** I've been going through Mortgage fraud as I was put in an unsuitable loan back in 2014.I have taken this case to the Credit & investigation Ombudsman's in 2015.But due to … read more
John Melis
John Melis
Diploma In Law
2,779 satisfied customers
Tina, and i was just informed that my partner that i am
My name is ***** ***** i was just informed that my partner that i am separated from has change our child's sir name without my consent. My child is 12 1/2 years old. I found out that she is going by my wife's maiden name. i am in Victoria. … read more
Leon
Leon
Solicitor
46,483 satisfied customers
In what instance can gst be charged on wages. We live in a
In what instance can gst be charged on wages. We live in a retirement village and pay gst on Management fees we are as from 1 January 2018 also being charges gst on wages paid to employees. Is this le… read more
Leon
Leon
Solicitor
46,483 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x