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GiveHimaMask

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  1. Hi Ben, Yes when I originaly posted this case here I thought it very interesting, on the one hand there was the LIE, I knew that would help IS IT ME and on the other there was Pender and that would help you, so who would have thought there would have ever been common ground here on this thread between IS IT ME and Ben. But a word of caution, as you know there are constants and variables in life, in this case, the constant is the Lie, that will never change and the variable, well that is the Authority the Judge used in Pender, who knows some time in the near future the Judge might use ' In Is IT ME Fiends and PretenderLender...' now, would that not be really something. Just food for thought. However Ben, many thanks for letting me know that SPV's have stuck their heads above the parapet but the important part of that question was, ' would they do it here in NI given what the law says in relation to registered land'. Give it some thought. gham
  2. GoodMorning Crapstone, Huh, The Judge says that if you sre a 2nd charge Lender and there is insufficient equity in the property to cover your charge, then the court will not grant you an Order. Seems to me that if you are a Borrower and you fall under these circumstances thenyou do have a ' one size fits all solution... So yes talk to your lender and tell you will see him in court... not... and yes apply for all those over charging charges... remember you are under no pressure... and when you get that refund... Speak to your Lender and offer him 20p in the pound to settle his charge and use that refund to pay him. that will cover your loophole. enjoy your day gham
  3. Hi IS IT ME / Apple, One last point before I say goodnite the other issue in the decision I posted in 2013 NIMaster 18 is this, If you are a second charge Lender and there is insufficient equity in the property to discharge your debt, the the court here will not grant an order for repossession as it represents futility and waste. Subsequent hearing have had this decision applied and now the Lenders are adjourning such cases. Now there is another little nugget and just in case the alternative view police want to pick and poke at this here is what the Master suggest... when there is sufficient equity in the property some time in the future then you may make an application. So given that the first charge holder is possibly 50% in negative equity and the second charge holder is on the hind tit and the borrower will probably stop paying the second charge, how far into the future do you think that new application might be. Seems to me now that the second charge holder is open to negoiations with big discounts available. And on that...Goodnite. gham
  4. Hi Apple, Have they gone to bed yet, weel they certainly buried that little nugget I posted from NI. They covered it up in the remedies the chargee would have in the event of a default. But here it is again... You cna not mortgage registered land...nor do you aquire the status of legal owner under the charge... you do not have a contractural nor legal right to possession. thats what the law says here in NI. Now to put this into some context here in NI I would refer to the Carlin case which Ben highlighted the point that repossession was thrown out because the Lender told a lie as to who owned the mortgage... but in actual fact the other valid point in this decision was that the judge stated thatalthough the mortgae was 'trnasferred away to another party' it would only be a matter of time before the rightful owner made a new application, but what the judge does not know is this mortgage has been securitised. So what do you think the possibilities of the SPV registering his charge and issuing proceeding against Carlin and if they do how will they contend with the fact that they have been sold a product which the original Lender had no Legal ownership of... you see how Ben squiralled that one away. gham
  5. Hi Apple, That Dodge and Crapstone are not they the ones... the judge says you cannot mortgage registered land you can only charge it, you have no common law right to repossession nor do you aquire the status of legal owner and he reiterates this point later on in the decision... not only do they want to argue with you all ady long that you are wrong but now they want to tell this Master he is wrong.... what are they like. gham
  6. Hi Dodge, You need to see a little further "I agree with Professor Wallace. The plaintiff has a registered charge to which Schedule 7 applies. The plaintiff does not have a “contractual and legal entitlement” to possession Sorry, gham
  7. hi All, Re my earlier quote from the NI Master and so there is no confusion by way of interpretation it means, you cannot mortgage registered land.
  8. Hi IS IT ME / APPLE Here is another little nugget from NI, you can read the full decision of Swift Acvances PLC & Justin Heany 2013 NIMaster 18, but here is an extract as the Masterstates "In this jurisdiction, as I have indicated, there is a wider discretion to defer or deny a secured lender’s claim to possession under Schedule 7 where, as in the present case and in the vast majority of cases I have heard over recent years, the mortgage is a charge on registered land. Over a decade before the Human Rights Act 1998 was enacted, Professor Wallace wrote this in his article Mortgagees and Possession (1986) NILQ Vol. 37 at 336:- `Unlike a legal mortgagee of unregistered land, the owner of a charge on registered land does not have a common law right to possession of the land charged nor does he acquire the status of a legal owner". Is this not what you and Apple been arguing for the last 285 pages and hey, given the fact that a Lender needs the status of Legal Owner to securitise your Loan what does that say to you. Geeeezzzzzz are these not exixiting times ? By the way, the best of luck for the comong days although I don't think its down to luck at all. gham
  9. Hi Mollypockets, Haven'y been on here for a while as I await the outcome of the Property Chamber but pop in from time to time to check for progress. However, your pending issue re repossession hearing, as a fellow countryman you should contact the Housing Rights Service, 4th Floor Middleton Building, 10-12 High Street, Belfast, Tel: 028 9024 5640. This is a free service to you and they will represent you at your hearing, their expertise is in property law and mortgages. So contact them as soon as you can and arrange an appointment. For you own information as the folks on here explain there is a difference in the Laws here in relation to property, hey. are underlying law is the Conveyancing act 1881, you would need to dig someone up to interpret that for you and our Land Rigistration Act (NI) 1970 is frankly 44 years behind the times so the use of the arguement in relation to Deeds is of no use to you currently. However, what is of use is the Judges who read the Law and apply it as it should be, you see, here in NI all matters in relation to Land are heard in the High Court and in that respect we are probably years ahead of England & Wales hence the decisions which excite IS IT ME.
  10. Hi Seq, I hear you, but can you show a judical decision in relation to 2nd charges, you now, one were the Lender has gone all the way and permitted publication in the public domain of its failure to exercise its security. I would have thought that if this was the case then all those on the cag with 2nd charge issues could have been directed to them and save them some stress???
  11. Hi molloypockets, Nothing wrong with getting it of your chest, but you know what they say, 'Don't get mad... Get Even'. I see that you are under pressure at the moment , care to say who your Lender is, to see if something can be done???
  12. hi Crapstone, The signifance of this case is that it is a High Court judgement, you could say case law, now in the public domain. It will help people in similiar circumstances with a 2nd charge on their home. No need, to go digging around, wrecking your brain, trying to find a way out. Given that this is a NI case and reports state that at least 75% of homes are in negative equity there, then this has a substantial impact for those who seek the time necessary to find a rebalance in their lives and the removal of one element of stress helps greatly I would have thought.
  13. Hi Is It Me / Apple, A copy of decision published in the past few days, just for your records Anyone doubting that the judicary will let the implications of a decision overide the Law...READ THIS. Neutral citation No: [2013] NIMaster 19 Ref: 2013NIMaster19 Judgment: approved by the Court for handing down (subject to editorial corrections) Delivered: 09/09/2013 2009 No 89199 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND CHANCERY DIVISION ---------- BETWEEN: GE MONEY SECURED LOANS LIMITED Plaintiff; and 1. GERALD JAMES MORGAN (otherwise GERALD MORGAN) 2. KAREN MARTINA MORGAN (otherwise KAREN MORGAN) Defendants. ---------- MASTER ELLISON [1] This is an application for leave to enforce a suspended order for possession made on 11 January 2010 pursuant to a charge registered as a burden on a Land Registry folio. The dwelling is the home of the defendants and they are its registered owners. The charge was registered in the folio on 6 August 2007 and secured a credit agreement (“the agreement”) regulated by the Consumer Credit Act 1974 and dated 12 April 2007 on the strength of which the plaintiff granted to the defendants a total loan facility of £15,845 with a monthly rate of interest 1.229% per month (variable) repayable over a period of 50 months. At the date of the affidavit grounding the suspended order and sworn on 7 October 2009 the interest rate was then stated to be 0.833 per cent per month. At the date of the hearing on 11 January 2010 the amount of the contractual monthly instalment was stated to be £387 and the arrears £3,770, the last payment having been made on 7 January 2010 for £50, and the balance outstanding under the agreement and charge was stated to be £13,814. At that hearing, at the request of the plaintiff’s solicitors, neither defendant being in attendance or represented, an order for possession was made but suspended on the terms that the defendants pay £546.50 monthly (all-in so as to include the normal monthly instalment and a contribution towards the arrears). [2] At the hearing on 24 July 2013 of the plaintiff’s application for leave to enforce that suspended order Mrs Quinn, solicitor from the firm McCartan Turkington & Breen appeared for the plaintiff and Miss Brennan of Housing Rights Service also attended as the first defendant had asked for the Service’s assistance which had been given at the initial hearing of the application of 17 April 2013 when the first defendant had attended in person. On 24 July Miss Quinn announced the outstanding balance to be £22,737 and confirmed that the term of the repayment period in the agreement had expired in May 2012, the contractual monthly instalment having been £347 immediately prior to that expiry and the last payment having been £100 on 30 June 2010. At the initial hearing of the application for leave the first defendant had proposed monthly instalments of £350 each and the last payment was announced (contrary to what was said at the hearing on 24 July) as having been £594 in October 2011. At that first hearing Miss McNally of Housing Rights Service had explained that the arrears had arisen and the default of the terms of the suspended order had occurred because of bad money management which also involved other, unsecured, debts. At the second and final hearing before me on 24 July Miss Brennan explained that she had had some difficulty in obtaining recent instructions from the first defendant, who had told Housing Rights Service on 19 June that he was concerned that he would lose his job inside the succeeding few months. He had also informed Housing Rights Service that there were approximately £2,000 of arrears of instalments on his first mortgage with Preferred Mortgages PLC (“Preferred”). There was no financial statement available at hearing but Mrs Quinn for the plaintiff said that from an earlier financial statement there would appear at that time to have been a satisfactory level of income for the defendants but no payment was being made on her client’s second mortgage. [3] However, it was also explained that the estimated value of the property was £135,000 and the amount due on the first mortgage, at some £155,000, meant that there would be no equity whatsoever available for the plaintiff in the event of a sale. When I asked why in such circumstances the plaintiff was seeking leave to enforce a suspended order for possession the plaintiff’s solicitor (having agreed that the situation for her client was one of total negative equity) indicated that the plaintiff was not intending to lease the property and accepted that it would not be in a position to sell, but one course that it would consider in the event of an order for possession leading to eviction would be to transmit the keys, and therefore possession, to the solicitors acting for the first mortgagee. Miss Brennan observed that any steps taken to enforce the plaintiff’s order for possession would merely incur additional expense and indebtedness to no benefit for the plaintiff whatsoever. [4] I agree with Miss Brennan. The traditional reasons for mortgagees to take possession are (predominantly) to sell or (rarely) to protect its security. Though the plaintiff is not minded to rent out the property if it should obtain possession to enforce, I suspect strongly that it would have no power to do so under the relevant provisions of the first mortgage contract and section 18 of the Conveyancing Act 1881. In this connection I refer to my judgment in Swift Advances Plc v Heaney (2010/154636) (the reasoning in which I adopt generally for the purposes of this judgment) handed down earlier today and the decision of Stamp J in Julian S Hodge & Company v St Helens Credit Ltd & Anor [1965] EGD 143 (dealing with the virtually identical provisions of section 99 of the Law of Property Act 1925) quoted therein. I also refer to my judgment in Heaney where it expresses concerns about the prejudice that may be caused to a first mortgagee by granting possession to a second mortgagee who has no prospect in the foreseeable future of having any equity available to it in the event of sale. Whatever the attitude or capacity of the defendants with respect to their mortgage commitments in the present case, in the event that possession were delivered to a plaintiff with no ability to sell, the defendants would be deprived altogether of motivation to make payments on their first mortgage which would be likely to suffer dramatic default or deterioration in the current level (if any) of default. (In that connection, Mrs Quinn mentioned that she had spoken shortly before the hearing to the solicitor for Preferred who indicated that her client had an order for possession which it intended to enforce.) Moreover the first mortgagee, which would at present face a substantial shortfall in the event of sale, would be deprived of all opportunity to come to an arrangement for payment with the borrowers and/or wait until the housing market picks up substantially before obtaining possession and selling. The risk of vandalism would compel it to sell the vacant property at a significant loss whether it wanted to or not. Therefore significant prejudice could be caused to the first mortgagee, which is not a party or notice party to these proceedings, by an order granting this plaintiff leave to enforce. [5] The present case is distinguishable from Heaney in that the relief being sought by the plaintiff is leave to enforce a suspended order for possession already made as opposed to a primary order for possession. Accordingly I must consider the legislation relevant to the Court’s discretion to stay orders in general including those for possession in mortgage actions. Sections 86(3) and 55(1)(a)(iv) of the Judicature (Northern Ireland) Act 1978 deal with the circumstances in which a stay of proceedings or execution may be granted and Order 45 rule 9 of the Rules of the Court of Judicature (Northern Ireland) 1980 provides that a court may stay any of its orders on the ground of matters which have occurred since the order in question was made and upon such terms as it thinks just. In the present case it seems likely that the total absence of equity for the plaintiff developed or became apparent or certain only after the suspended order for possession was made on 11 January 2010. Moreover section 3(1) of the Human Rights Act 1998 requires a court to read and give effect to primary and subordinate legislation so far as possible in accordance with the Convention rights of the parties, and the defendants’ rights to respect for their home would (for the time being at least) outweigh the plaintiff’s right to its possessions in the special circumstances of this case. [6] Section 86(3) of the 1978 Act enables a court “acting on equitable grounds” to stay any proceedings or the execution of any of its process subject to such conditions as it thinks fit. In his article in NILQ (1986) Vol 37 No 4 Professor Wallace warned against reliance on this provision to defer a legal mortgagee’s common law right to possession (which the plaintiff in this case does not have as its order for possession was on foot of a registered charge) as he considered that the subsection “is merely intended to provide statutory confirmation of pre-existing equitable powers and discretions” which were not used prior to the 1978 Act to defer a legal mortgagee’s right to possession. However this warning disregards the fact that subsection (2)(a) had already addressed explicitly the court’s duty to give the same effect “as heretofore” to “all equitable estates, titles, rights, remedies, reliefs etc” and subsection (2) is expressly stated in terms to be subject (in part at least) to subsection (3) which is not in terms limited by a repetition of “as heretofore” or similar words. Moreover “equity” is rightly stated to be “an equivocal term” in my venerable Wharton’s Law Lexicon (10th Ed, 1902), which added that “the difficulty lies in drawing the dividing lines between the several senses in which it is used.” My 1986 Edition of The Little Oxford English Dictionary defines “equitable” as “fair; valid in equity” but the latest edition omits any reference to the latter meaning of that word as attributed by Professor Wallace to its use in section 86(3) – as does each of the several other dictionaries I have consulted running to less than 1,000 pages. Moreover my Oxford Companion to Law by Professor David Walker (1980) includes the following:- “The basic meaning of equity is evenness, fairness, justice … In a secondary meaning the term is used as contrasted with strict rules of law …” (Emphasis added) All of the numerous dictionaries I have consulted specify as the first or only meaning of the word “equitable” the word “fair” (or similar) and it seems reasonable to infer that that is its primary – or, as Professor Walker puts it, basic – meaning. It is plainly possible, therefore, to “read and give effect “ to section 86(3) in a manner compatible with the Convention rights of the parties as required by section 3(1) of the Human Rights Act by attributing to “equitable grounds” the meaning “grounds of fairness”(or similar). However that may be, as appears from the following paragraphs, I am satisfied that the grounds on which I intend to stay enforcement in the present case are “equitable” whether as envisaged by Professor Wallace or otherwise. [7] I quote (as I did in Heaney) from the judgment of Mr Justice Deeny in a specific performance action in which he upheld the defence of impossibility in Titanic Quarter Ltd v Rowe [2010] NICh 14:- “[20] I respectfully agree with the dicta of Megarry VC in Tito v Wadell [1977] Ch 106; [1977] 3 All ER 129 at 311, 312: `it is old law that in specific performance cases “the court will not make any order in vain”. See New Brunswick and Canada Railway and Land Company Limited v Maggeridge (1859) 4 Drew 686 at 699, per Kindersley VC. The usual instances of cases of the courts refusing to make orders that would be useless are cases where the interest that will be obtained by the decree is a very short tenancy, or a partnership which could promptly be determined by the other party. I do not, however, think that the refusal of equity to make futile orders is limited to cases of transient interest. In this case I cannot see what utility there would be for anyone in providing that a small number of isolated plots should be re-planted with coconut and other trees in the hollows beside the pinnacles. It is highly improbable that the coconuts would ever fruit, and the plots would be surrounded by other plots not replanted in this way which would make access difficult or impossible for the owner. It would be a sheer waste of time and money to so this, and I do not think that the court ever should, in its discretion, make an order which it is convinced would be an order of futility and waste.” [21] As Lord MacDermott said in connection with the remedy of certiorari in R (McPherson) v Ministry of Education (1973) 6 NIJB, the court should not make an order that will beat about the air.’ (Emphasis by underlining added) [8] Moreover in the present case had the Court been aware at the hearing of the application for the Order for possession that total negative equity pertained for the plaintiff, the making of the Order might not have been considered “proper” in accordance with Schedule 7 to the Land Registration Act (Northern Ireland) 1970 which confers a discretion on a court whether to grant a chargee an order for possession of registered land and imposes a duty on the court not to do unless it is satisfied that such a course would be proper. [9] I am satisfied that an order giving the plaintiff leave to enforce would be an order of futility and waste and that enforcement of the order dated 11 January 2010 should continue to be stayed until the plaintiff obtains evidence at some future date that there would be equity available to justify a sale in the event that leave to enforce is granted. [10] I will hear submissions as to costs.
  14. Hi pleasehelpme26, I've just read through your thread and again I'am impressed by the help provided by the good folk here on the cag. I am absolutely sure that you will come out the ortherside on favourable terms with the continued assistance of the contributors and for that I wish you every sucess and best wishes for xmas. To further lift your spirits, I would suggest once you have these current issues stabilised that you get in touch with claims management company specialising in mis-sold mortgages. From the snipets you have posted early on in this thread you clearly have a case. I know that these companies usually operate a no win-no fee system, that means it does not cost you anything. However, they will only take on a sure thing. By way if example for you as to what may be acheived in a mis-sold event, a recent case I was involved in saw the borrower acheiving a 75% reduction on their borrowed amount. What this means in simple terms is the amount borrowed at the date of loan was reset to 75% of the value, interest was recalculated on the revised loan amount and this total deducted from the Borrowers cmi payments and the balance refunded to the Borrower. Imagine all your money back. Oh, and the Lender was responsible for the costs which were substantial. Now you will not find any case law to support this as the Lenders will not let it get into court for fear of a decision being published, no they could not afford that. as I say, get the current issue out of the way, go see a claims management co., get these people of your back and get some payback. Oh and remember you are not to blame for any of this. Good Luck.
  15. Hi mollypockets, If you are in NI, you can get a copy of your deeds at, Land Registry, Lincoln House, Great Victorai Street, Belfast, just uo from the Europa Hotel. You can call in, give the address, pay the fee and they will print them off as you wait. If you follow Apples explanation of the Legal sections referred to in this thread, you'll be well informed.
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