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Killerschick

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  1. Hi Joy, You have my every sympathy, it sounds as though you have had a horrible time of it. West Brom give building societies a bad name when it comes to shortfall collections. It sounds as though at some point West Brom must have got a judgment as they couldn't get a charge on your property without either your authority or a court order, and to get a charging order they would first need a county court judgment. Perhaps if you were unaware of any legal action they got the judgment at a previous address? It may be worth getting a credit reference agency report to see if there is one, you can get one free by signing up to the trial period for credit expert and the like but make sure you cancel before you have to start paying for it. Alternatively you can write to Experian, Call Credit or Equifax with a fee and your previous addresses, their websites give more details. If they have brought legal proceedings without your knowledge then that can be grounds for having any judgment obtained set aside, although you also need a valid defence. Look forward to hearing from you when you get more info. KC
  2. Hi Dave, From previous experience (but not recent so things may have changed) lenders would be more concerned about agreeing a a level of payment that was affordable than achieving recovery within a specified time frame. However, this is on the basis that you can put the situation as a best case scenario for them e.g. (using completely made up figures):- You sell property for £50k with £60k mortgage leaving £10k shortfall which you propose to pay at £50pm, it will take about 16.5 years at that rate which doesn't sound great but they are at least in contact with you and your circumstances might improve so there are benefits for them. They repo property (or take it into management via LPA receivers) with £60k mortgage take 6 months to sell for £47.5k during which time with interest and costs mortgage increases to £65k they are left with £17.5k shortfall with no proposals for repayment and no up to date contact details for you. They then have to spend time and money tracing before they can even consider recovery and as you are overseas their prospects of enforcing via legal means are slim. They will generally want details of your income and expenditure and to review the position on a periodic basis (annually say). If you own other property with equity they might want to take security on it but I don't know what the position would be with your property in Spain given its classification and the fact that most British lenders would not have the resources or inclination to get security on a foreign property. It might not be necessary to mention it and it might make them start thinking about bankrupting you to get the Trustee to realise the asset (unless perhaps the classification issue makes it valueless?). Hope this helps. KC
  3. Hi TomTom, Unfortunately, as you have been paying there is no possibility of using statute-bar as a way to deal with this case so other avenues will need to be explored. As a starting point I would suggest making a Data Subject Access Request (SAR) to the lender. There are templates for these letters on this site, send an appropriate letter giving details of the account to the lender together with the maximum statutory fee of £10.00. It is advisable to sign the letter so your request is not delayed by the lender's attempts to verify your identity and give some detail about the information you are looking for. In this case, I would ask for a full breakdown of the account from inception to today showing ALL transactions, details of the possession proceedings, details of the steps taken to value and sell the property including the reasoning behind the decision to put the property in auction, steps taken to recover sums from your ex and details of how much they received from her and the calculation of the sum they are holding you liable for including an up to date balance. It might be possible to take issue with the size of the shortfall given the sale price achieved but it's very difficult, particularly bearing in mind the state of the market and the economy at the time. To pursue any sort of legal claim you're probably looking at a need for expert witnesses etc which can get expensive. More realistically you might be able to get them to write off the remaining balance if they have difficulty evidencing the debt after all this time or that they did their best to get a good sale price. The debt would have been considered a write off for their accounting purposes years ago and anything they get now is therefore effectively profit so they are unlikely to want to put a lot of resources into pursuing it. That said, the big banks have big purses and if they feel that not pursuing something might lead to other challenges (as happened with the mortgage redemption penalty and bank charge cases) they will fight matters. When you've got some more information about what you owe and what happened around the time of the possession then plenty of people on these forums can help with raising challenges.
  4. The Office of Fair Trading imposed requirements on them in October and one of the issues was harrassment. I would write to them citing the OFT requirements saying that you think they are in breach and that you will be putting your complaint to the OFT. This should give them pause for thought as they face a potential £50,000 fine for any breach of the requirements! I would then go on to say that you request that they remove your telephone numbers from their system and that any further communication should be in writing. You can contact the OFT with your complaint at [email protected] They can't intervene but it might get some action taken if they see Aktiv are not abiding by the requirements.
  5. Hi Bobby, As Ellen says, it sounds as though there is a judgment in this case and if that is the case the issues about limitation fall away. It also makes it more difficult to dispute the amount owed as in addition to getting together information to suggest the property was sold at under value you also need to demonstrate why you didn't defend when the claim was issued or raise the matter sooner. If, as you say, you previously provided information about your means in 2009 it sounds as though the judgment has been in existence for some time and you have been made aware of it. To deal with the points you raise, if the property was let out then you would not have been entitled to any state assistance with the interest. It sounds as though you may have moved into the property yourself and if that is the case you might have been entitled to claim at that point but you would not have received anything for (as memory serves) 9 months after a claim on a mortgage taken out in 2004 so it probably wouldn't have made much (if any) difference. As things stand now if an N61 has been issued by the court this would be due to a failure to respond to an N56 which is the form for replying to an attachment of earnings application (as pointed out by Newstarter). You say you responded in 2009 and things haven't changed but you still need to respond every time a creditor makes an application and you get these forms from the court otherwise there are potentially serious consequences, in this case it can result in a fine or imprisonment. This is copied from the court service website explaining what might happen:- If the judgment debtor fails to return form N56 the court will serve him or her personally with form N61 (Order for Production of Statement of Means). The judgment debtor must ensure that the statement of means reaches the court office within 8 days of receipt of the order, or pay in full. If the judgment debtor still fails to return form N56, or to pay, the court will serve him or her personally with form N63 (Failure to provide Statement of Means). This orders the judgment debtor to attend court at an appointed time to give good reason why he or she should not be sent to prison for 14 days or fined up to £250. The N63 also advises that if the debt is paid in full or the statement of means is returned to the court immediately, the judgment debtor may not have to attend the court. If the failure continues the court will make an order for the judgment debtor to be arrested and brought before the court. If you didn't get the N56 I would get in touch with the court and explain ask for another and some more time to return it. If you did get it and haven't returned it I would get it back ASAP preferably with a record of receipt either by attending the court in person or sending recorded delivery. If you are on benefits the lender won't be able to get an attachment of earnings order so it won't do any harm to give details of your circumstances. As for bankruptcy, this would have the result of writing off the debt as it is provable in the bankruptcy. In your circumstances it is likely to be a very simple bankruptcy case as you don't sound as though you have any assets and don't have substantial income so it is unlikely you would be ordered to pay anything and discharge would be likely in a year at most. Some of the negatives about bankruptcy are as follows:- Even on benefits you need to pay the bankruptcy deposit which I think is currently £360 although you can apply for fee remission in relation to the court fee which would (I think) normally be another £150. While you are bankrupt you cannot obtain credit The bankruptcy will remain on your credit file for 6 years from when you are declared bankrupt which might make obtaining credit difficult in future. It can affect your ability to undertake some jobs such as roles in financial services. It may be a breach of your tenancy agreement if you are renting although it is quite unusual for landlords to take possession action for this type of breach if the rent is being paid. If you have any assets such as property or high value goods the trustee may sell them to raise money for your creditors. All your debts are incorporated which can be problematic with things like money owed to family. You cannot act as a company director while bankrupt. I can't guarantee this list is exhaustive there are probably other issues I haven't thought of but hopefully this gives some pointers.
  6. Hi Marie, When a mortgage company appoints receivers the property remains in your name and they simply manage it to ensure money is paid towards the mortgage. However, they generally have the power to sell the property as part of that arrangement. If there is negative equity and the rent they are receiving is covering the interest it is probably more likely that they will continue to manage the property with sitting tenants and make money rather than sell the property and make a loss. This might change if the tenants move out or interest rates go up. If they start accruing a shortfall between the rent and interest which is increasing the debt each month they may decide to cut their losses and sell. A possession order would not be required to sell the property and if tenants were resident when the property was sold they would not be evicted. I'm not expert on this area and there are some extensive threads about this (particularly one about Mortgage Express) so you will find a lot of information if you have a look around the forums.
  7. Hi Newstarter, Just to clarify on the CML statement, it's not quite as generous as all that. The statement was issued in 2000 when borrowers who had been repossessed in the early 90's started being contact by lenders or indemnity insurers for the first time. This caused much negative publicity for the mortgage industry which the CML was trying to address. The actual voluntary agreement which was made was that borrowers who had not been contacted at all for 6 years or more would not now be pursued. If a borrower had been contacted within the 6 years following possession then the mortgage company or insurer would retain its right to pursue the borrower for the full 12 years to which it was legally entitled. It should be noted that this 'contact' did not require acknowledgement as you would to start time afresh in relation to statutory limitation periods, further detail is given in the CML statement as to what constitutes contact under their rules. The CML statement has now been enshrined in the FSA's MCOB rules but these only relate to FSA regulated mortgages (post 31.10.04). Even if a lender was to fail to comply with the CML statement there's probably little that could be done, it's not a legally binding agreement and I would have little faith in a complaint to the CML as it has the industry's interests at heart. In relation to a possible part 18 request, that would only be relevant if proceedings have been issued and that is not clear as yet. Hopefully the information will be forthcoming in response to the SAR and it won't be necessary to pursue the legal route. CML Statement on Arrears & Possessions.pdf
  8. Hi Dave, In my experience lenders are usually willing to agree monthly payments based on ability to pay if agreeing this sort of arrangement. I missed one of the points you raised about the mortgage company accepting an address change to Spain. In answer, yes, they should accept a Spanish address and this could work in your favour in negotiations. Realistically, as you live in Spain it's probably very unlikely that they would pursue you if the property was repossessed and sold with shortfall so it makes an agreed sale with a proposal for payments to any shortfall more attractive as a business case. Also, if, after the property was sold, you didn't keep up with any agreed payments it would probably make it quite unlikely that they would take any legal action as most UK lenders aren't experienced in pursuing people abroad (Santander being one obvious exception!). KC perty
  9. No problem, I just thought Joy might not want to post specific information, such as the dates involved or details of any judgment, on the forum.
  10. Hi Silly Girl, I think misunderstand me, I was not trying to say that the mortgage company simply sending a letter would extend the period a lender could legally pursue a mortgage shortfall. Perhaps it would help if I provided more detail. The CML statement Shortfalls arising from the last recession (1989-1993ish) started being pursued in earnest by lenders and mortgage indemnity insurers in the late 90's and understandably resulted in much negative reaction and litigation. To try and improve the industry's image and offer some comfort to borrowers, the CML updated its statement of practice on arrears and possessions in 2000. At the time it was widely accepted that a mortgage shortfall could legally be pursued for 12 years although the issue had not been tested in the higher courts. The CML's statement at point 29 was as follows:- 'In addition, from 11 February 2000, lenders who are members of the Council of Mortgage Lenders have agreed voluntarily that they will begin all recovery action for the shortfall within the first six years following the sale of a property in possession. Anyone whose property was taken into possession and sold more than six years ago, and who has not been contacted by their lender for recovery of any outstanding debt will not now be asked to pay the shortfall. The Association of British Insurers supports this approach on behalf of the mortgage indemnity insurers. In Scotland, lenders will begin recovery action within five years.' The CML's statement was further clarified at points 30 and 31 to specify when this new voluntary 6 year limit would apply. In this case 'just writing' is sufficient for the lender's purposes to be able to comply with the voluntary CML statement. There is no requirement for the lender to have any acknowledgement from the borrower to then continue pursuing the shortfall for the 12 years provided for in law. 'Does this time limit apply to every case? The new time limit does not affect anyone who is already adhering to alternative payment arrangements for the shortfall debt or who has already been contacted by the lender, even if the initial contact was made with them by the lender after six years from the date of the sale of the property in possession. The six year limit only refers to beginning recovery action and does not affect a lender’s ability to recover the shortfall debt over a longer period. If there is evidence of mortgage fraud, the new time limit will not apply. Following the sale of a property in possession, lenders often find it difficult to contact the former borrower to advise them of any surplus monies or shortfall debt. Lenders use a variety of measures to identify where the individual is now living. This might include using tracing agents. Situations can arise where a lender or its third party agent is trying to contact the individual (for example, by letter or telephone) to discuss repayment of the shortfall, but the individual simply chooses to ignore such contact. This is despite the fact that the contact is being made at the individual’s new address. In these cases, lenders will consider that contact has been made for the purposes of the new six year limit. Lenders will also consider that contact has been made where the borrower has responded to the lender’s correspondence. Simply sending the borrower a final statement of the mortgage account alone will not constitute contact. If an individual is unclear whether contact has been made within the six year period, the lender will be able to confirm the position. ' Since 2004 this voluntary agreement has been included in the FSA's Mortgage Conduct of Business rules. MCOB 13.6.4 states:- '(1) If the decision is made to recover the 1sale shortfall,1 the firm must ensure that the customer is notified of this intention. (2) The notification referred to in (1) must take place within five years of the date of the sale (if the regulated mortgage contract or home purchase plan 1 is subject to Scottish law) or within six years (in all other cases). ' This does not change the legal position and is not legally binding but if a lender was to fail to comply in relation to an FSA regulated mortgage (i.e. a residential 1st charge mortgage taken out since 31 October 2004) a complaint might be made to FOS. Again, a lender would not require an acknowledgement of the debt to satisfy this rule and it would be sufficient for them to demonstrate that the notification had been sent to the borrower at an address at which they were reasonably believed to be resident. The legal position As I have said it was generally assumed that mortgagees had 12 years to pursue a shortfall from the date of the sale of the property. This assumption has been tested in the last 10 years and the legal position clarified. In the case of Bristol & West Plc v Bartlett & Anor [2002] EWCA Civ 1181 (31 July 2002) it was established that a mortgagee has 12 years to pursue payment of the principle debt under section 20 (1) of the Limitation Act 1980:- (1) No action shall be brought to recover— (a) any principal sum of money secured by a mortgage or other charge on property (whether real or personal); or (b)proceeds of the sale of land; after the expiration of twelve years from the date on which the right to receive the money accrued. And 6 years to pursue payment of interest under section 20 (5) of the Limitation Act 1980:- (5) Subject to subsections (6) and (7) below, no action to recover arrears of interest payable in respect of any sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land, or to recover damages in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due. At this point it was a commonly held belief that a mortgage shortfall could be pursued for 12 years from the date of the sale of the property. This aspect of the law was also to be tested in the case of West Bromwich Building Society v. Wilkinson & Anor [2005] UKHL 44 (30 June 2005). This case established that the 12 years runs from the date of the last payment not the date of sale and the case of Bradford & Bingley Plc v. Rashid [2006] UKHL 37 (12 July 2006) established that correspondence acknowledging a debt also starts time afresh. Conclusion I hope this makes it clear I am not labouring under the misapprehension that correspondence sent by a lender starts time afresh for them to pursue a legal claim. My intention was to illustrate the fact that lenders are not supposed to pursue a shortfall for the maximum legal period of 12 years if they have not taken some action within the first 6 years. I wholeheartedly agree that a payment or written acknowledgement is required to start the 12 year legal limitation period afresh and hope I have illustrated the legal framework for this. Lordsugar says he surrendered his property 3 years ago so (assuming no subsequent contact or payment from him) Santander therefore legally have a further 9 years to pursue him for the principle element of the shortfall. I would be very interested to know the case law in relation to challenging the amount of the shortfall and the where the requirement for an annual statement comes from. I know there is a requirement in relation to FSA regulated mortgages for annual statements under MCOB 7.5 but didn't realise this continued after possession in relation to shortfalls. I also understand that MCOB 13.5.1 provides a requirement for statements a minimum of quarterly even on shortfalls if charges are being applied to the account. KC
  11. Hi Excel, Are you sure about those figures? £561 on £321k is an APR of 2.10% which seems very low? Mind you if your friend was in mortgages perhaps he spotted a brilliant deal and snapped it up. Either way, I'm afraid it sounds as though the judge has already considered your friend's proposal to pay £100pm towards the arrears and has decided he either hasn't got discretion to grant an order on those terms or your friend has not evidenced that he can afford it. On the discretion side - £19,000 arrears at £100pm would take almost 16 years to clear so your friend would need a remaining term of at least that for the judge to have discretion to grant the order in accordance with Norgan v Cheltenham and Gloucester. The other factor might be your friend's ability to prove he can afford the money towards the arrears and to be honest if he is unemployed with three dependants I don't see how he could on benefits. The judge might have granted a suspended order if the arrears had been lower and there was lots of equity (£19,000 is the equivalent of about 34 month's payments although you don't mention the equity) to give your friend a chance even if the evidence wasn't really in his favour but with arrears that high the judge is less likely to be generous. Your friend's prospects don't sound brilliant either given that he wouldn't be able operate in financial services with serious financial problems. Harsh though it may sound, with your friend in a delicate emotional state, it might be better for him to consider options other than trying to keep the property. If there is equity perhaps a sale is a possibility but he will need to act quickly to demonstrate this is a realistic possibility to the court in order to apply for an extension to time before they can enforce the order. I would also suggest seeking advice from his local authority about being rehoused or looking into entitlement to housing benefit for privately rented accomodation.
  12. Hi Joy, One thing you should definitely look at closely when you get the documentation about the loan is the date of the last payment before repossession and whether your later acknowledgement of the shortfall was within 12 years of that. At the time you started paying West Brom (2003/04ish based on how long you say you have been paying them) it was generally assumed that the 12 years a mortgage company has to pursue a shortfall ran from the date a property was sold in possession. A House of Lords appeal case brought by West Brom (West Bromwich Building Society v. Wilkinson & Anor [2005] UKHL 44 (30 June 2005)) established that the limitation period of 12 years actually runs from the date of the last payment. In cases where no payment was made for some time before possession and/or a property took some time to sell this dramatically reduced the amount of time mortgage companies thought they had to pursue the shortfall. In your case as you reached an agreement before this case was decided it may even be that, unbeknownst to West Brom, their claim was already statute barred when they made arrangements to pay with you. It's a tight time frame as you say you were contacted 10/11 years after possession but if you hadn't paid for a while before possession and did not admit the debt until some time after you were first contacted it's just possible there may have been a gap of more than 12 years and West Brom have no valid legal claim. I don't want to get your hopes up but seeing as you started paying at a time when the law had not been clarified there's a small chance you might not owe the money. Even if the claim wasn't statute barred, another issue your post raises is that they are endeavouring to pursue you for compound interest. An earlier appeal case in relation to mortgage shortfalls (Bristol & West Plc v Bartlett & Anor [2002] EWCA Civ 1181 (31 July 2002)) established that a mortgagee has 12 years to pursue a claim for the principle debt under section 20(1) of the Limitation Act 1980 but interest can only be pursued for 6 years under section 20(5) of the Limitation Act 1980. Without having seen the grounds for their interest claim etc (and not being legally qualified – so don't take my word as gospel!) I wouldn't want to say that they are wrong but it is certainly worth questioning the basis for this interest. It would also be useful to know whether West Brom took this through the courts and got a judgment and charging order or whether you voluntarily gave them a charge on your current property. If the debt is subject to a judgment, that could change the basis for interest charging depending on how the claim was worded. If I can be any help when you do get more information then feel free to PM me. KC
  13. Hi Determined1, A bank can write a debt off any time they like, that's down to their own decision making process. As to whether they are likely to write a debt off, that's another matter. I would say it's highly unlikely that a second charge holder would agree to write off a debt even if there was no equity in the property at the time. Property prices change and, even if there is no equity now, there may be in future so there would be little reason for them to write the debt off. Even after possession most secured creditors would continue to pursue any shortfall sustained rather than write the debt off, they have 12 years from the date of the last acknowledgement of the debt to try and recover their losses so although their prospects of recovery might not be good in the immediate aftermath of the possession, over 12 years those prospects might improve. Creditors generally are very loath to write debts off and will only tend to do so if they are legally unable to pursue them, e.g. due to statute-bar or the borrower going bankrupt, or if the borrower has some very tragic circumstance such as a terminal disease (and even then they probably wouldn't if they thought there would be money in the estate). I should just clarify that I use the term written off to mean when a creditor agrees not to pursue a borrower. Writing off for accounting purposes is entirely different and a creditor may class a debt as written off for accounting purposes but have no intention of releasing the borrower from their obligations. Hope this helps clarify matters. KC
  14. Hi Lordsugar, The limitation for mortgage debts is 12 years rather than the standard 6 years for other credit agreements as they are formed by deed. Members of the CML (Council of Mortgage Lenders) have voluntarily agreed not to pursue mortgage shortfalls after 6 years if they have not attempted to do so within the 6 years. However, all they need to do is send one letter to an address you may be linked with in the first 6 years to enable them to continue pursuit after 6 years whilst complying with the CML agreement. They do not need to have any acknowledgement from you or any confirmation that you received their correspondence and the 6 year period is not legally binding so if breached you could not rely on this in any defence. The 12 year limitation period runs from the last payment made to the mortgage or the last written acknowledgement of the mortgage debt. Hope this clarifies. KC
  15. Hi Jay, I'm making some assumptions but it sounds like the previous owner of your property (as you say the Nationwide charge pre-dates your purchase) took out a mortgage with Nationwide but for some reason it was not registered with the Land Registry (HMLR). If you purchased the property innocently i.e. not in collusion with this previous owner (and purchasing a property in possession would certainly sound above board) to transfer the property before the charge could be registered you should be fine. The only part which doesn't make sense is how Nationwide could even have attempted to register the charge if the person who granted it is no longer a proprietor. I would check with your conveyancer that they have correctly registered you (and any joint owners) as proprietor(s) although it's fairly standard practice for them to send you a copy of the registration documents when they have dealt with this. As long as the registration has been done you shouldn't have any problems and it will be down to Nationwide to pursue the former owner, or the lawyers who failed to register their charge. If you continue to receive correspondence for the person who took the mortgage out with Nationwide I would suggest returning it unopened marked 'Not known at this address' technically it is an offence to open mail addressed to someone else and it may help get the message through that correspondence to your address is not reaching the addressee. If the mortgage is in a third party's name, and it sounds as though it is, it should not appear on your credit file unless you were financially linked with them in some way or they happen to share a surname with you as that may cause a credit reference agency to assume you are related. As for possession proceedings, that can't happen if Nationwide do not have a registered charge as it's one of the most basic pieces of evidence needed to bring a possession claim. As their borrower is no longer even the proprietor of the property they have no chance of registering a charge and then proceeding to take possession. Don't worry about the correspondence from Nationwide, it doesn't affect you and may just be stuff they need to send by law but they can't trace the former owner (it's not uncommon for someone who's been repo'd to go under the radar for a while). Assuming your lawyer has done their conveyancing job properly (worth checking just to make sure) you've got absolutely nothing to worry about, Nationwide cannot touch you or your property and you should either return any correspondence from them or bin it. KC
  16. Hi Dave, Just to add to the above posts, you will find that you cannot sell a property for less than the amount of the mortgage without the mortgage company's consent. If their loan is not paid back they will not release their charge and the property cannot be transferred to the intended purchaser. You would have discovered this when you instructed conveyancers/solicitors in the sale of the property who would have undoubtedly pointed this out. The solicitors or conveyancers have to be able to give an undertaking to the purchaser that they will obtain the property free of any encumbrances. They will not be able to give this undertaking if they do not have either sufficient funds to clear all loans secured on the property or the agreement of any lenders who are not receiving full sums to remove their charges on the property so it is passed unencumbered to the purchaser. It is not necessarily difficult to get the agreement of the mortgage company but they will probably want to see evidence in the form of valuations and to correspond with your solicitor to ensure it is a genuine arms length sale at full value. People do try to pay less than the full mortgage balance by claiming negative equity then trying to sell their property at a knock down price to a relative or friend so the mortgage company will want to make sure the sale is genuine. They may even require a valuation but even then the costs would be considerably less than managing a property to sale as SG points out above. The downside of having to get consent in advance is that the mortgage company are not likely to give it without some sort of proposal for the payment of any shortfall. They will want to know your whereabouts (if they don't already given we are talking about a BTL property) and some sort of offer of repayment, or, in cases of extreme hardship some evidence of why you can't pay anything (and even then they will probably keep the position under review in case things change). Just want to make sure you are fully informed when you decide how to proceed. KC
  17. Hi Fireflyer, I am just making an educated guess but I would imagine the most likely possibilities are:- A fee paid to a broker for arranging the mortgage which has been added to the mortgage - this is different from a secret commission which is paid to the broker without the knowledge of the borrower and is not added to the mortgage but comes out of the coffers of the mortgage company. A fee for a fixed, discounted, capped or other type of special interest rate which may have been applicable at the time the mortgage was taken out. A mortgage indemnity premium - these have been pretty rare since the crash in the 90's but were a premium charged to the borrower for the mortgage company to insure itself against any losses arising from a shortfall in the event of possession. Hopefully someone else who knows LMC will come along with a definitive answer. I would point out that LMC are not now Acenden, Acenden are just the servicing company for LMC although they are linked as they are both part of the bankrupt Lehman Brothers group (Acenden has been subject to a partial management buyout). KC
  18. Hi Histor98, I am sorry to see you haven't had a response to date and hope it's not too late with your hearing being listed for 15th. It's an interesting situation and further information would be needed to clarify. You say that you have moved back into the property implying that at some point you weren't living there at all. What was the position when you took the mortgage out? Did you take out a buy-to-let or commercial mortgage on the basis that you would not be resident at the property? Residential property is defined under the Financial Services and Markets Act 2000 and Consumer Credit Act 1974 as property 'at least 40% of which is used, or is intended to be used, as or in connection with a dwelling by the borrower or by a related person'. As things stand your property sounds residential as from your description you occupy more than 40% of it. However, it is important to look at whether it was intended that you would occupy the property at the time the mortgage was taken out. If at that point it was intended that the whole property would be let and you took out a commercial or buy to let mortgage, the fact that you have moved into the property would not alter the status of the mortgage and you would not have the same protections as someone who took out a residential mortgage. In fact, if you moved in without the mortgage lender's consent this could constitute a breach of the mortgage terms in itself for which the mortgage company could take enforcement action. The implications of this would be that the mortgage lender does not have to go through the steps outlined in the pre-action protocol which applies to residential mortgages. On the other hand, if, when you took out the mortgage, you or a relative intended to occupy 40% or more of the property and you took out a residential mortgage your lender should follow the pre-action protocol (unless you later converted the mortgage to a buy to let basis while the property was fully let). In either event in order to avoid repossession you need to have some sort of proposal to put to the court regarding the clearance of the arrears. You say that currently you cannot afford the full monthly payment and on that basis you may need to look at other options. The bank has refused (or ignored) a request to transfer to interest only, in the current climate this is not surprising as the FSA are clamping down heavily on lenders giving interest only mortgages where there is no realistic plan to repay the capital (selling the property at the end of the term is not considered realistic) and many lenders have ceased offering interest only mortgages as a consequence. It sounds as though reducing the payments is not a likely prospect so you either need to come up with a way of paying more or consider the alternatives such as a sale. From what you say, if you could let the commercial part of the property you would be able to afford the whole mortgage. For this argument to be successful in court and, ultimately, for it to be viable for you to keep the property you need to progress this (and I am sure you are doing everything you can). Otherwise even if you go to court and propose to pay the arrears from the rental income and the court grants a possession order suspended on those terms, if you can't pay, the lender will simply enforce the order and you will still lose your property. If there is no realistic prospect of letting the commercial part in the near future it may be worth thinking about a sale. Properties sold by owners in occupation achieve better prices than those sold by mortgage companies in possession so you would maximize the equity you got back and keep control of the situation. It's a hard decision to make but if repossession is likely otherwise it's (usually) the lesser of two evils. If you can present evidence to the court that you are actively marketing the property they may grant longer than the standard 28 day possession order to give you time to achieve a sale. Usually the court would want to see that a sale has actually been agreed but as you have a lot of equity the judge may use discretion. You would probably need a minimum of a contract with an estate agent and print outs from rightmove or similar to show the property is being marketed, it would also be useful to have solicitors' details to demonstrate you were serious. This may persuade the judge to grant a 56 day order instead it may not sound like much, but you can go back to court during that period to apply for a further suspension if you get an offer. If you are paying at least the interest in the meantime so the lender's position isn't getting any worse this will be in your favour. Hope some of this is helpful. KC
  19. Hello again, Having had a quick look at the thread Martin provided the link to I should just point out that I was talking about the position in relation to owner occupied property taken into possession by the mortgagee. Things are different for buy to lets and properties which are sold under the management of receivers without being taken into possession - the other thread covers those situations comprehensively. KC
  20. Hi Nottslad, Usually everything is turned off and drained down (this is how you can spot repo's on rightmove etc, they are the ones with tape around all the appliances, taps etc). If there are any outstanding bills from prior to possession the owner would be liable and it would be down to the utility company to trace and pursue them for the sums outstanding. If for any reason utilities were kept on after possession e.g. electricity to enable viewings after dark to increase saleability (particularly relevant at this time of year), the mortgage company would pay but add the costs to the outstanding balance so ultimately it would still be the owner who paid the bill. This is from experience from a few years ago so things may have changed but as the shut off and drain down was for safety reasons as much as to avoid costs (electricity & gas increase fire risk and there is the possibility of water leaks or frozen pipes if the water system isn't drained down) I don't think things would have changed much. KC
  21. Hi Marmite Girl and sorry you haven't received a response sooner. I don't know of any successful cases in the terms you describe but you might find S140 of the Consumer Credit Act 1974 useful:- http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=consumer+credit+act&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=3399662&filesize=19311 This section applies even if your agreement was above the £25,000 limit which was in place at the time. There have been some successes in case citing the unfair relationships sections of the CCA, notably the case of Blemain v Bentley which made the press:- http://www.propertydrum.com/articles/blemain Given the uncertainty surrounding your brokers and the way FP operated your account, you might have a good case. KC
  22. According to the Court of Appeal case of Ropaigealach v Barclays Bank plc [2000] QB 263 (the facts of which are very similar to the situation you describe) if the property is peaceably taken into possession i.e. there is no eviction, then NO court order is required. The situation was looked at again in 2008 in the following case:- Horsham Properties Group Ltd v (1) Paul Clark (2) Carol Beech and GMAC RFC Ltd (Third Party) and The Secretary of State for Justice (Intervener) [2008] EWHC 2327 (Ch) This was a case where GMAC placed a residential property in the hands of receivers who sold the property with the owners in occupation. The purchasers of the property then proceeded to evict the (now former) owners who objected citing the Human Rights Act and saying they should be entitled to the protections available under the Administration of Justice Act 1970. GMAC were found to have acted legally. In light of these binding court decisions (I don't know of any more recent cases which have overturned these) the position would be that Mortgage Express did NOT need a court order to take possession of your property or sell it so any attempt to overturn the sale or claim compensation for the way it was dealt with is unlikely to be successful. Sorry to be the bearer of bad news but it's better to know the legal position at the outset than put a lot of effort into a claim that's not likely to succeed. You should raise the issue of any goods left behind and get them to account for what happened to them, particularly if the tools were valuable. KC
  23. This FSA enforcement case seems to have gone a bit under the radar even though there is some great stuff in their press release for anyone who might have had issues with them. The full press release can be found here:- http://www.fsa.gov.uk/pages/Library/Communication/PR/2010/159.shtml Of particular interest is the section on the head honcho, Joseph Cummings, who, among other serious failings branded customers who complained 'evil' and more usefully for any potential claim, was found to have charged some customers excessive amounts:- Joseph Cummings Cummings has been fined and banned for a number of failings. Whilst in charge of Bridging Loans Ltd, he failed to act with integrity by knowingly misleading a customer, and assessed customers’ complaints based on his perception of their character, without properly reviewing their circumstances, branding some customers as “evil”. As an approved person, Cummings also failed to act appropriately when dealing with customers entering mortgage contracts or when handling customers’ complaints and subsequently, in his treatment of customers in arrears. For example, he: failed to lend responsibly, leading to a risk that customers would enter into contracts they could not afford; failed to ensure charges and interest were attributed accurately and fairly to customers’ accounts, with charges allocated inconsistently and with some customers paying excessive charges; and tried to deter customers from complaining or seeking redress by, for example, threatening to charge a customer for time spent dealing with their account when they complained to the ombudsman or refusing to deal with a customer unless they withdrew their complaint to the ombudsman. Cummings also acted recklessly by failing to properly assess a third party underwriter who acted as a customer facing broker and was the sole source of information upon which the firm assessed 63 FSA regulated loan applications. Given the underwriter financially gained from each loan, this created a conflict of interest. Cummings refused to co operate with the FSA during the course of the investigation, including denying the FSA access to Bridging Loans Ltd’s office. Other directors at Bridging Loans Ltd have also been subject to action by the FSA as a result of its investigation. The case hasn't got a lot of press attention but Bridging Loans Limited did make it into the industry mouthpiece Bridging and Commercial in a defensive way:- http://www.bridgingandcommercial.co.uk/newsstory?id=1319&type=newsfeature&title=bridging_lender_blames_fsa_fine_on_old_school_practices The Mirror has more recently picked up on the Bridging Loans Limited case in their Penman and Sommerlad investigate column:- http://blogs.mirror.co.uk/investigations/2010/11/disappearing-act-by-award-winn.html Bridging Loans Limited can't lend FSA regulated mortgages/bridging loans anymore but can still lend on buy to lets & give second charge loans so BEWARE and if you have been ripped off by them it might be a good time to launch some action against Bridging Loans Limited.
  24. This FSA enforcement case seems to have gone a bit under the radar even though there is some great stuff in their press release for anyone who might have had issues with them. The full press release can be found here:- http://www.fsa.gov.uk/pages/Library/Communication/PR/2010/159.shtml Of particular interest is the section on the head honcho, Joseph Cummings, who, among other serious failings branded customers who complained 'evil' and more usefully for any potential claim, was found to have charged some customers excessive amounts:- Joseph Cummings Cummings has been fined and banned for a number of failings. Whilst in charge of Bridging Loans Ltd, he failed to act with integrity by knowingly misleading a customer, and assessed customers’ complaints based on his perception of their character, without properly reviewing their circumstances, branding some customers as “evil”. As an approved person, Cummings also failed to act appropriately when dealing with customers entering mortgage contracts or when handling customers’ complaints and subsequently, in his treatment of customers in arrears. For example, he: failed to lend responsibly, leading to a risk that customers would enter into contracts they could not afford; failed to ensure charges and interest were attributed accurately and fairly to customers’ accounts, with charges allocated inconsistently and with some customers paying excessive charges; and tried to deter customers from complaining or seeking redress by, for example, threatening to charge a customer for time spent dealing with their account when they complained to the ombudsman or refusing to deal with a customer unless they withdrew their complaint to the ombudsman. Cummings also acted recklessly by failing to properly assess a third party underwriter who acted as a customer facing broker and was the sole source of information upon which the firm assessed 63 FSA regulated loan applications. Given the underwriter financially gained from each loan, this created a conflict of interest. Cummings refused to co operate with the FSA during the course of the investigation, including denying the FSA access to Bridging Loans Ltd’s office. Other directors at Bridging Loans Ltd have also been subject to action by the FSA as a result of its investigation. The case hasn't got a lot of press attention but Bridging Loans Limited did make it into the industry mouthpiece Bridging and Commercial in a defensive way:- http://www.bridgingandcommercial.co.uk/newsstory?id=1319&type=newsfeature&title=bridging_lender_blames_fsa_fine_on_old_school_practices The Mirror has more recently picked up on the Bridging Loans Limited case in their Penman and Sommerlad investigate column:- http://blogs.mirror.co.uk/investigations/2010/11/disappearing-act-by-award-winn.html Bridging Loans Limited can't lend FSA regulated mortgages/bridging loans anymore but can still lend on buy to lets & give second charge loans so BEWARE and if you have been ripped off by them it might be a good time to launch some action against Bridging Loans Limited.
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