When do you need to tell your mortgage lender you are applying for a financial remedy order (even a consent order)?
You must inform your mortgage lender when you are making an application for a financial remedy order and it is an application relating to land.
This applies to consent orders and applications that are not by consent.
In the case of a consent order, you must inform them at least two weeks before sending a consent order to the court.
In other cases (not by consent) you should do it at the time you issue your application.
What is an application relating to land?
This is any application relating to land itself or to a house/property on any land.
So an application relating to land may mean an application for:
- a transfer of property from joint names to one name;
- an order for the sale of the property;
- a mesher order.
How do I inform the lender?
You need to send a copy of your form A by normal post to the address the lender has given you for contacting them about your mortgage.
This will often be found in the mortgage terms and conditions sent to you when you took out the mortgage.
If you do not know the address you should contact your lender to ask.
If you are using my consent order service I will provide you with a covering letter to send to them.
What will the lender do with this information?
In most cases the lender will simply file the notice and take no further action.
The court cannot make any order within the divorce altering the mortgage itself. The mortgage is usually security for a loan to the owner of the property . This is very often the money that was used to buy the house, or money borrowed subsequently to carry out improvements.
It is unusual to see a lender take part in the financial remedy proceedings where there is some equity in the property and they have a first charge over it.
But there are times when money is loaned for business purposes or some other reason on top of the original purchase and sometimes this type of loan or second mortgage can be a little less straightforward.
In a small number of cases the lender may apply to take part in the hearing of the financial remedy application, or the proceedings leading up to it, to try to ensure that their security is not adversely affected by the order the court is proposing to make.
If you are in this situation you will need expert advice from a solicitor or barrister.
What do I do after serving the notice?
You must allow 14 days for the lender to respond.
If the lender either does not respond at all or replies indicating that they have no objection to the order you are seeking, you can tick the boxes on the D81 statement of information for a consent order to confirm that you have served the mortgagee and they have made no objection.
You will be able to send your consent order to the court.
If the lender does object you will need to seek expert advice from a solicitor or barrister before continuing with the court application.
For most normal situations involving an application relating to land, sending the form A to the mortgage lender is uneventful. They may not even always acknowledge receipt of it.
You must give the lender 14 days to respond to the notice.
If they do not respond you may submit your consent order to the court.
You must remember to put details of the lender (name and address) on the form A and also tick the boxes on the D81 to confirm that you have complied with this rule.
As always, this article is intended to be helpful but it is not to be relied on in place of your own personal legal advice. I do not know your personal circumstances and cannot confirm that anything contained in the articles on this website is appropriate advice for you.