# How to remove a mortgage judgement on a house in order to process probate



## aiswa (21 Jun 2012)

Hi there,


As executor of estate I found out there is a judgement mortgage on the house. This is nothing to do with the deceased but one of the beneficiaries. 

There is no money in the estate and I am wondering how I go about removing the JM to progress probate.

All advise greatly appreciated. 

Thanks


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## Brendan Burgess (21 Jun 2012)

This makes little sense to me at least.

The deceased owned a property. 
The deceased had an unpaid debt. 
The creditor registered the judgment on the property. 

The property cannot be sold (or conveyed to the benefiicary?) until the unpaid debt is discharged. 





> There is no money in the estate



No, But there is a valuable property and an unpaid debt which must be paid.

Brendan


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## mf1 (21 Jun 2012)

Brendan

The debt was not of the deceased but of a beneficiary and the registration of a Judgment Mortgage  against their interest is the issue. 


See section 116 of the Land And Conveyancing Law Reform Act 2009

116.— (1) A creditor who has obtained a judgment against a person may apply to the Property Registration Authority to register a judgment mortgage against that person’s estate or interest in land.


[JMA 1850, s. 6]


(2) A judgment mortgage shall be registered in the Registry of Deeds or Land Registry, as appropriate.


(3) For the avoidance of doubt it is and always has been the case that—


(a) there is no requirement to re-register a judgment mortgage in order to maintain its validity or enforceability against the land or a purchaser of the land,


(b) a judgment mortgage may be registered—


(i) notwithstanding that the judgment debtor has obtained an order of the court granting a stay of execution, unless the court orders otherwise,


(ii) against the interest of a beneficiary under a trust for sale of land.


If the value of the mortgage exceeds the value of the property, that's a big problem for the estate. 

mf


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## aiswa (21 Jun 2012)

Thanks, The JM does not exceed the value of the estate. I believe it was taken out on the assumption that there was only one beneficiary and that there was cash available also.  The content of the will was not know to the creditor at the time. 

I submitted the grant of probate and am waiting to hear back.

Can I try and remove the JM?  Is it possible to do myself?

Also, the same creditor is trying to become executor of the will in order to get his money. Assumption again on who the executor was. 

I only found out this case has been in court and they only found out that I was executor so not sure where its going to go now. Its been adjurned so I guess I will be contacted...


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## Brendan Burgess (21 Jun 2012)

mf1 said:


> The debt was not of the deceased but of a beneficiary and the registration of a Judgment Mortgage  against their interest is the issue.



So, if I am left a property in a will but the property has not yet been conveyed to me, a creditor can register a mortgage against my interest? 

That would be very efficient of the creditor to be checking wills to see who has been left what?  Of course, I might have told them that I would pay off the debt when my Granny dies and leaves me her house.


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## mf1 (21 Jun 2012)

I think the parties are all known to each other and it all sounds exceptionally murky!

"Also, the same creditor is trying to become executor of the will in order to get his money. Assumption again on who the executor was.

I only found out this case has been in court and they only found out that I was executor so not sure where its going to go now. Its been adjurned so I guess I will be contacted... "

mf


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## Brendan Burgess (21 Jun 2012)

That explains a lot.

I thought that the financial institutions were combing through  wills to see if their debtors were due for an inheritance and then slapping a judgment mortgage on them. 

Aiswa

Don't try to do this yourself. You absolutely need a solicitor on this.   

They will advise you on this tricky legal area.
They will help you avoid making a mistake which could result in you being sued by this creditor, who seems to be resourceful.

Brendan


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