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Clare, Solicitor
Category: UK Law
Satisfied Customers: 34105
Experience:  family solictor with 25 years experience
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Clare The last few weeks before final hearing. Here's a

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Hi ClareThe last few weeks before final hearing.Here's a novel idea that came from Counsel that I wanted to run by you for practical steer.A "Barder" issue brewing...I know you said the court won't look "too far" ahead. But, after pondering this problem for hours (with you and her) it finally dawned on us what's going on behind the scenes. Within 3 months of final hearing ex could (as sole owner with a re-mortgage) pay from consolidated loan monies a builder to finish the junk room and the house is instantly nearly twice the FDR valuation. We own two sites, but considering the court in its wisdom would have given him sole ownership of both, Ex then grants himself an easement so the land has good access to the street scene and pops in a planning application to develop the spare land. The combined site then trebles in value- in all, a Barder event and we are back in court again (no clean break).His access to that kind of 'hidden equity' so soon after final hearing must be tackled now. I've proposed to counsel a strategy which I'd like you to sense check:- I offer to take a big chunk of capital from the remortgage consolidation and the spare land too
- My offer is "open" which ticks the box of being expected to make open offers before trial
- An open offer is a steer to the judge
- It is also an attempt to guide Ex into a re-mortgage that provides for all (minimises loans, maximises rental, maximum chargeable assets i.e. maximum equity release). If that causes him to evidence his mortgage application more substantively at trial, that helps us evidentially.What do you think - are there hidden bombs in there that we could trip over?

How does Counsel think a remortgage which allows for extra borrowing can be forced?

Customer: replied 8 months ago.
The they expressed it is (a) bad prior history paying maintenance so judge may prefer capitalisation with a discount (b) therefore, its implicit that he has to 'find' the money which means its up to him to swing a big loan, the judge would leave him to get on with it,
I think what we're trying to do, is prompt Ex to explore the options now, that are capable of solving the overall problem, in the hope of better outcomes for all.
And, the judge said at FDR he wanted to know and would take a very dim light, if anyone had fiddled the figures particularly on valuations - so for example, if Ex applied for his re-mortgage (something he gave a test-run earlier this year) with the high valuation yet insists in court the house should have a lower valuation, that would be an interesting discussion in court.
Half his loans are double counted or repaid early next year, or unenforceable soft loans - so did he try to remortgage stating his loans are less worse than he tells the court...
If there is proper accountable and accurate info to the new lender, fine. I want to avoid Ex cooking up one story for the lender, and another for the court.
Apparently we can't get a copy of his re-mortgage application because its costly to get a court order demanding it. But he can be crossexamined on it.
In making offers one has to go in high, so its up to him to test if he can afford extra borrowing. From my perspective, I also need to know if his initial offer to do SOME extra borrowing has any likelihood of success so I need to know which figures relate. I don't mind "meeting in the middle" but the last thing we want is for him to lie to the court and then milk it after final hearing with a whopping debt consolidation and property development.

OK the reasoning works.

I would want to offer the suggestion of your having the other piece of land as an option to concentrate his mind

Customer: replied 8 months ago.
I appreciate "its a stretch" but, the stunning immediacy by which he could convert low equity into astonishing equity - could put us all back into court so we examine it now. We have done precisely as you suggest- and "gone for broke" asked for the land, and capital, to really concentrate the mind as you say!!!
My ex has been resolute that I can rescue myself, he will not bargain easy.
A judge, on the other hand, is more neutral and at FDR there was proper attention paid to options.
In the meantime, the job market is crazy - I am absolutely at the end of my rope.
I've resorted to loans and charity and these innovative legal arguments to get a buffer.
I can see counsel's point that if we had bailiffs at the door, a judge would readily sell the matrimonial property to rescue us but I'm trying not to end up like that.
Bless you for all that you do for everyone on this website. Technology democracy!

Well it sounds as though you have chosen a good barrister

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