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Everything posted by mercyblue

  1. Entirely my point as soon as it gets to the conveyancing stage the buyer isn't going to obtain free title as the 2nd charge isn't going to be paid off and the sale simply collapses. There really wouldn't be much point to securing a charge on a property if you could simply sell it and effectively negate the charge.
  2. It is much simpler than that the 2nd charge holder would just block the sale in the first place as they aint going to get paid.
  3. You have been to an oral examination as to your means (or whatever it is called now) the court official (not a judge) has asked the questions submitted by the creditor. That information is forwarded to the creditor and they decide on any, or none, further enforcement action. It wont been seen by a judge. When I was made to attend one (many years ago) it was actually a benefit because I heard nothing ever after from the creditor as it was clear I didn't have anything and it was pointless spending more money pursuing it.
  4. If the friend has been abroad for 10 years how has the claimant been able to issue a claim considering a mcol claim must be to a uk address?
  5. For what its worth if anybody is interested a mortgage is a deed as opposed to a "simple contract". A deed has a 12 year limitation period against 6 for a simple contract.
  6. You cant issue a claim to a non existent address see cpr 6 (6.6(2)) specifically. As the claim cannot ever have been served the default judgement is erroneous and must be set aside part 13.3 shouldn't apply here. Admittedly that is just my opinion but I'm pretty sure I could make that fly. Secondly once the creditor was aware they had sent a claim to a non existent address meaning that they knew full well the defendant couldn't possibly have received the claim (which nicely blows out any argument using cpr 6.9) why they didn't themselves apply for a set aside. Thirdly someone has signed a statement of truth on that claim form what due diligence has that person done to ascertain the "facts" on the claim form are true considering the actual fact that they didn't even have a valid uk address. I assume you have already made the set aside application otherwise you could name them as a witness and actually ask them! The last thing the claimant will want is somebody been asked about their (shoddy) working practices in a courtroom. No doubt the claimant will use the usual "administrative error" but there cant have been any fact checking on the claim so how can we take any of the claim at face value. I would make it clear that I would expect in any future claim that some sort of audit trail could be provided to show how the so called facts have been derived, again putting their working practices to scrutiny. Hopefully that would be enough to make the claim go away.
  7. A court would have to consider exceptional circumstances which could be a physical or mental condition but that would usually apply to the mortgagor's primary residence which doesn't apply here. I assume this is a buy to let mortgage? I assume then that the tenancy is on a (rolling) 6/12 month tenancy? If both those assumptions are correct the tenant only ever has the security of the notice period. I cant see a court ever increasing that. Did you have any sort of agreement with the council over the adaptations they made? Did they do them in the expectation of the person staying in the property for the rest of their life etc.
  8. Thanks BazzaS I do remember having that problem before, the link was getting mangled. Cag changes pdf to capitals it must see pdf and change it because I know I used pdf (in lower case) on my last link and it now shows as a PDF hoverlink. http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf Does the link above work for people please? That's using insert link off here rather than just pasting the link in
  9. The link works now with the pdf in the right case sorry about that.
  10. http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf For some reason it seems the PDF is capitals on the post when it should be pdf. The link works in the email sent from cag but it doesn't show it as capitals. If I click on the link I posted it uses capitals a university will be using unix which is case sensitive.
  11. Inabind I think perhaps the judge would be referring to barclays bank plc vs Hendricks. That case mentions the 20% in that the bank stood to recover 20% of its debt. But in that case the wife owned a second home in any case. The OP might want to read this http://gala.gre.ac.uk/14119/20/14119_PAWLOWSKI_Sale_of_the_Family_Home_2016.pdf if they are thinking of bankruptcy it is heavy going but you may find it relevant to the situation.
  12. It is going to be quite easy to argue that the original lenders system would be automated that following a missed payment there would be a 1st, 2nd and final reminder before a DN was issued (they probably should be able to provide sample template letters of such.) That (as Andy says) gives a DN time line of June/July 2011. I would suspect that these parasitical firms use software that flags up the account shortly before (according to them) it goes statute barred - allowing them to claim years of juicy section 69 interest. Personally I don't think there is much chance of using an SB defence successfully if the claim is issued within 5 months of the deadline of the last payment i.e 6 years + 5 months from the last payment. As Andy has already noted their claim doesn't state a DN was issued just that a default was recorded (which I assume to mean with a CRA?) which is a completely different thing. Now you stated you initially rang MBNA and they stopped the account. That means there was manual intervention which would circumvent the automated process described above. This would be the angle I would take the claimant doesn't even assert there ever was a DN issued.
  13. The creditor doesn't need to register the full CO the ICO is sufficient to register their interest. They could but it would just cost money for no gain - so they don't. Lots of people sadly but understandably look at their LR records and think ah they've made a cock up and not "finished off" for want of a better phrase the charging order. However when you think of it dispassionately it does make sense. At the final charge hearing there are two choices 1) A full charging order is granted or 2) the interim order is dismissed. If it's the latter the LR entry will disappear, if it's the former it continues and the ICO registered at the LR stands. An ICO is done to stop the debtor selling quickly (allows the fleecing companies to get their grubby hands on your house on what probably came from an unsecured debt in the first place). If the entry at the LR (from the ICO) is present years later the only assumption can be (for the reasons above) is that the full CO was granted. CPR part 73.10A(3) covers it. "(3) At the hearing the court may— (a) make a final charging order confirming that the charge imposed by the interim charging order continues, with or without modification; (b) discharge the interim charging order and dismiss the application;"
  14. To add to ericsbrother you would actually be seeking permission to appeal (unless at the original hearing such permission was granted highly unlikely I would have thought). You would also have to lodge your permission to appeal within 21 days of the original decision. You would then need to show at said hearing your point(s) of law on which you are basing your appeal. The judge would then either grant an appeal or dismiss it. The costs would be incumbent on yourself. You would also need a transcript of the original hearing for an appeal, I cant conceive of a scenario where it wouldn't, they don't come free you would need to submit an EX107 for that and pay for that (the cost of which is based on the length of the transcript). Perhaps you are confusing a set aside with an appeal ? The two things are completely different beasts.
  15. Bank holidays are defined by the banking and financial dealings act 1971 (it is at cpr 6.2a.) Christmas day is actually a public holiday as opposed to a bank holiday. http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06170
  16. The problem you have here is that the buyer will require free title at the point of sale, certainly in order to get a mortgage, when they do the land searches the restriction will come up. You cannot notify somebody of a sale until after that sale has happened so you are still trying to sell it with a restriction in place. It is a bit of chicken and egg situation.
  17. "Doesnt mean i am right or wrong, its just worked for me and countkess others, else why do we have the CISheet at all?" Well to be honest Martin I have wondered that but it does seem to work. I am sure Martin you would want me to point out if "the other side" applied interest then took that sum and applied more interest on top of that. If it has always gone unquestioned does make me wonder what might have gone unnoticed from the likes of SPML when they are ripping people off
  18. "As this is mortgage related charges, FOS may or may not take the case on and even if they do, you will not get compound interest, only 8% simple interest from the date each charge was levied." Which is the correct way. Martin you used compound interest and it went unnoticed is probably a testament to our countries shocking lack of knowledge of mathematics. Nevertheless the fact remains it could be challenged I certainly would. To be honest I would only bring it up at a hearing that alone should get me an adjournment no judge is going to want people sat there calculating interest more costs for the claimant to stump up to keep the case going. Taking a sum applying (compound) interest to it then taking that sum, which will be hugely inflated due to the niceties of compound interest, then applying interest on top of that thus earning interest on the compound interest you had already applied is worthy of the financial sector at its worst so I take my hat off to you Martin and I do mean that sincerely you beat them at their own game and they didn't even notice.
  19. Brill result ToS. As an extra perhaps you could say of the three reasons given which you thought was given the most prominence if indeed any was. Presumably been unable to show how they had arrived at the figure they were claiming is pretty much a fundamental flaw in any case.
  20. The question still remains on what legal basis are you applying an 8% compound rate?
  21. "S69 interest is applied at the courts discretion. You are claiming compound interest at 8% (as per spreadshhet) up to the date of the claim if you go down the court route. From the court date its 8% simple interest s69." S69 interest would, if applied, normally run from the cause of action. I don't understand where the 8% compound interest comes from. Mortgages only use simple interest (it's a bit more complicated because the interest applies on the remaining principal) so presumably so do any charges. Assuming the charges attract the same interest rate as the mortgage principal I would have thought it would be more logical to use that interest rate. That interest rate would probably vary through the time period in question I would expect. Alternatively you could just apply simple 8% from the date of each charge up to date of the claim that would allow you to calculate a daily rate for the claimform. Claiming an 8% compound then lumping all that together and then claiming 8% simple you are actually claiming interest on interest.
  22. But surely your not denying you had a card? It's whether they followed the correct contractual legal procedure. Both sides in a contract must follow the relevant law otherwise what would be the point of the said law?
  23. "If you issue court proceedings without engaging in the CPR Pre-Action protocols, you may well be at risk of having legal costs awarded against you, even if you win. That is because, had you engaged in the process, the matter may have been resolved without further legal cost, timing, and aggravation, and the aim of CPR was ironically to not engage in cases but to settle. This is arguable, and the subject of another blogpost for another time that the CPR achieves what it was supposed to do" Well court action should always be the last resort otherwise you are not following cpr 1 i.e the overriding objective.
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