County Court Summons - Mortgage Shortfall - Advice Needed Urgently, Please Help !!!

[sillygirl1]

Send or take the latest letters from the solicitor to the court just in case they are going to file for judgement by default - it has been known unfortunately, after all the solicitors are working for THEIR client, not you.

[pt2537]

Hi All

 

Hope you are all keeping well.

 

I have not heard anything neither from lenders nor from the solicitors or from the court since I have sent back on the 27/12 completed AQ to the court with copy to solicitors accompanied by the letter with suggested direction as Paul drafted which is in this thread.

 

I have tracked the letter and it was received by the solicitors on the 28/12.

 

In that letter it was suggested to court to apply direction whereby giving lender/solicitors 14 days to comply with the request for information or for the claim to be struck off. Deadline for that was today 10/01 and I have not received any information or documents from them.

 

Also as per the solicitors letter sent to me on the 12/12 in which they said that they were awaiting their clients'file of papers hence unable to provide information as requested in the Part 18 request ( they referred to it as informal request) and therefore they agreed to extend period for filing defence till the 9/01. Well that date has passed and no information nor any document have been provided as requested.

 

What do you think they are playing at, what would be our next step?

 

Many thanks to you all

 

Best regards

 

Hello Count

 

it is not uncommon for things to go slow, especially at this stage

 

the directions on the thread, were for the attention of the judge to consider, now they werent a dead cert to be ordered however if the judge looked at them and considered them correct and appropriate then he may order that all sides comply with them

 

judges are funny creatures and you never can tell how they are going to go, however if you dont ask, you dont get

 

i think at this point, i would hold fire as you may get an order drop on your matt soon, the reason i say that is im helping on another case which is slightly ahead of yours and the person recieved an order on monday from the courts

 

sit tight and if you have not heard bythe end of the week then give me a shout and

 

regards

paul

[nuke em]

i have been following this case with much interest. I am presently preparing for the worst as i have many properties that will be repossessed (3 already have orders for "possession day" in Feb, with more to follow). I know they will be, or attemped to be sold way behind market value so shortfall issues will "fall" upon me.

 

One question i have is after lender has gained possesion can i delay the sale/timewaste/ or if the sale goes ahead claim it was sold too cheap etc?

[jody123]

Hi Nuke Em

 

Do you have the properties for sale on the market already?? Could poss get a delay if you are trying to sell them yourself....Just a thought.

 

Jody

[Killerschick]

Hi Nuke Em

 

A mortgage lender owes a duty of care to their customer to obtain the best price possible for a property in possession and if there are potential shortfalls, believe me they will do their damndest to get as much for your properties as possible. Unfortunately properties sold whilst vacant make less than occupied properties and repo'd properties also make less still due to the state they are usually in (even if the decorations are in good order and the place is structurally sound - the tape around gas, electric and plumbing fixtures with warnings about it being disconnected/drained down is not attractive and the notice in the window that it's a repo tends to drive offers down).

Potentially you could have a claim against a mortgage company for sale at undervalue but if there is a shortfall they have also sustained a loss so it's hard to see why they would do it. You need to have very strong proof of the correct market value taking into account the forced sale factor to consider this and be prepared for the mortgage company to come back all guns balzing with why they had to accept the offer they did.

[The GodMother]

I would advise you get a few quotes in writing on what you could get for the house ASAP Then if they do undersell/value the house then you have got a case to start with.

 

Chrissi

[nuke em]

Hi all thanks for your responses

 

The first three properties which have possession order dates in early Febuaury do have tenants in them and the tenants have valid AST agreements. The properties are in excellent decrotive order and need nothing doing to them. Apart from concern of the lender shortselling of these properties i have also concern for my tenants.

 

My questions are this

1. What will happen to my tenants after repo day, will they will allowed to stay (provided they carry on paying the rent to the then new owner, the lender) until the end of their respective tenancies? or will the lender serve some kind of notice on them to try and evict them?
   
2. Will the lender want to sell these properties with tenants ? or will it wait until the tenant leaves ( or is served an eviction notice, see 1 above)
   
3. Should i write to the lender(s) just before repo day a) pointing out that they have duty to get the best price etc and that i will be watching what they do etc etc very carefully & b) i will require a full breakdown of who/what/when /where etc the property is eventually sold for/to?

I was going to get 2 valuations 1 week before each repo day anyway and write to them saying that is what i have done so i am aware what they are worth.

 

4. Is there any other delay tactics i can employ AFTER repo day?

 

The judges knew i was trying to sell them myself but because i didnt have buyers on the hearing day, they ordered possession away albeit on an extended time basis. Each order was different as they were delt with by different courts.

[Count]

Hello Count

 

it is not uncommon for things to go slow, especially at this stage

 

the directions on the thread, were for the attention of the judge to consider, now they werent a dead cert to be ordered however if the judge looked at them and considered them correct and appropriate then he may order that all sides comply with them

 

judges are funny creatures and you never can tell how they are going to go, however if you dont ask, you dont get

 

i think at this point, i would hold fire as you may get an order drop on your matt soon, the reason i say that is im helping on another case which is slightly ahead of yours and the person recieved an order on monday from the courts

 

sit tight and if you have not heard bythe end of the week then give me a shout and

 

regards

paul

 

 

Hi Paul and all my friends here

 

 

Even though solicitors have said in their first response to Part 18 request, sent to me on the 12/12/07 ( solicitors/lenders deadline to respond to Part 18 was on the 5/12/07) which was original date for me to file defence to the court, that due to the fact that they have to get documents from the lender they are extending time for me to file defence till the 9/01/08, they have now sent me some documents which they posted on the 10/01/08 ( in fact day later then the extended time they have given me) which means again, the second time, on purpose they have sent it late and incomplete as per request trying to obstruct me or prevent me from having all of the documents at hand to prepare appropriate defence.

 

I have now received some documents solicitors have sent as stated on their letter ( please see attached) except that even though they say they sent Statement of Account (point 2 on the first page of their letter) it was not enclosed.

 

They are saying that my request concerning regulatory bodies, complaints procedure and personal data should not be raised within the Part 18 but should be directed to HBOS – well copy of the Part 18 was sent direct to HBOS at the same time as it was sent to solicitors – I wonder why lender did not respond and provided information on the above??

 

Please find attached here copy of Mortgage Deeds Conditions, Completion Statement and parts of HBOS Group Reorganisation Act 2006 (12(2) and 12(4)) that solicitors are referring in the point 6 on the second page of their letter as proof of HBOS entitlement to the debt. I might be wrong, but to me this only points out that BOS taking over Halifax is taking over all their accounts etc, can you please let me know your thoughts

 

I might be wrong but do not seem to see any reference in the Mortgage Deeds Conditions to mortgage shortfall being classed as speciality debt. Should it be made clear in Mortgage Deeds Conditions what’s what?

 

Really they have not provided any documents as asked, no Statement of Account, no independent valuations of the property (only sent bill from Halifax Property Services for advertising and selling property), no documentary evidence how property was marketed and no proof that property was sold for the best price. They say that Completion Statement sets out the price obtained for the property but they did not provide valuation. Prior to repossession I had property on the market as I was trying to sell it instead of letting it be repossessed and as far as I can remember so far back house was valued and on the market for £ 72.000 with another estate agent, I had some viewings but unfortunately Halifax did not want to give me more time to try to sell it and took possession. Then they sold it for £ 53.000, I can not believe that Halifax Property Services valued it at such big drop in price in comparison to what estate agent I had it on the market with valued it initially.

 

On the Completion Statement they are showing final loss of £ 18,624.40 and yet on their claim they are showing shortfall of £ 15,984.40

Completion statement figures do not seem to stack up unless I am looking at them differently

 

They have sent me some invoices for garden maintenance and standard clean whilst trying to sell it which to me look fairly inflated £ 40 - £ 50 for cleaning empty house and maintaining garden??

 

They also sent me few invoices from their other solicitors who dealt with the sale of the property as well as invoices from the solicitors who dealt with mortgage arrears. They say that account first went into arrears in Oct 1989; does it mean that Limitation Act should apply from then?

 

They are saying that Halifax did not purchase Mortgage Insurance Guarantee – yet on the Completion Statement they are showing Insurance Premiums of £ 2,453.85 – can anybody shed any light what this might be.

 

Also I have now received the letter from the court saying the following:

 

“ District Judge has considered the statements of case and allocation questionnaires submitted in this claim and has decided that an allocation hearing/case management conference is necessary before a final decision about allocation can be made” I would be very grateful if someone could clarify what this means, is it final hearing or something else??

 

It has been scheduled for the 6/02/08.

 

What do I need to do next; your help will be very much appreciated.

 

Forever grateful

 

Best regards

Wrage_Co letter110108.pdf

Mortgage Deeds Conditions.pdf

Completion _Statement.pdf

HBOS Group Reorganisation Act 2006_ 12(2)_12(4).pdf

[jody123]

Hi Count,

 

Just reading through now - will try and get back to you tonight....

 

Couple of things strike me

 

1. They have not provided a certified copy of your mortgage deed

 

2. They have not supplied the statements - did you S.A.R - (Subject Access Request) Howard - if not do it tomorrow asap - might be too late to help you with this.

 

3. Insurance - this may be contents/buildings insurance - but may also be a policy for poor payers - will need to get more info....I posed a question on what xtracover is...but no-one has answered this as yet....is this what type of insurance your is.

 

4. Allocation hearing - paul would be best placed to advise on this, but suspect judge might be giving you time to settle...

 

5. They say the mortgage endowment was cashed in - did you cash it in or did they do it for you - where did the money go?

 

Back in a bit.

 

Jody

[jody123]

A couple more thoughts...

 

Do you have proof of the value of the property when you were trying to sell it?

 

Did they sell the property at auction?

[jody123]

Hi Count,

 

I've had a quick skim through the mortgage deeds - and will need to check out tth Law of Property Act 1925, but as far as I can see there is no provision in the deeds as supplied that if any shortfall, once they have taken possession, remains outstanding they they have the right to recover it - I would therefore be looking for a defence along the lines of statute of limitations and the 6 year rule....

 

Perhaps Paul or Sequenci could elaborate...

 

Jody

 

will have another read through tomorrow once my head is a little clearer.

[pt2537]

i think in this instance, i would rather have sequenci look over things,

 

the fact is i am way out of my comfort zone, as i have always said, to comment.

 

regards

 

paul

[Count]

Hi Count,

 

Just reading through now - will try and get back to you tonight....

 

Couple of things strike me

 

1. They have not provided a certified copy of your mortgage deed

 

2. They have not supplied the statements - did you S.A.R - (Subject Access Request) Howard - if not do it tomorrow asap - might be too late to help you with this.

 

3. Insurance - this may be contents/buildings insurance - but may also be a policy for poor payers - will need to get more info....I posed a question on what xtracover is...but no-one has answered this as yet....is this what type of insurance your is.

 

4. Allocation hearing - paul would be best placed to advise on this, but suspect judge might be giving you time to settle...

 

5. They say the mortgage endowment was cashed in - did you cash it in or did they do it for you - where did the money go?

 

Back in a bit.

 

Jody

 

Hi Jody

 

Thank you very much on your reply.

 

1. They did send one page Mortgage deed certificate but all it has on it is just signatures and names nothing else.

 

2. They did not provide Statement of Account even though they said in their leter that it was enclosed. I did not S.A.R - (Subject Access Request) them but was requested through Part 18 letter, copies were sent to lenders direct as well as to solicitors.Should that not have been sufficient?

Should I S.A.R - (Subject Access Request) them now? What do I need to put in the letter, is there any templates? If I do it now what time do they have to respond to it?

 

3.I have no clue what this insurance is about. It looks high for it to be contents/buildings insurance.

Talking about xtracover insurance it rings bell somehow, I remeber seeing it somwhere, although it could have been at Halifax branch being advertised at the time, but I can not remeber what it was for or about

 

4. Allocation Hearing - Paul can you please shed some light on this, is this supposed to be final hearing or something else?

 

5. As for endowment I can not honestly remeber what happened to it, it has been so long.

But with the view of misselling of all endowment policies could I counterclaim against them for this?

 

Best regards

[Count]

i think in this instance, i would rather have sequenci look over things,

 

the fact is i am way out of my comfort zone, as i have always said, to comment.

 

regards

 

paul

 

Hi Paul

 

Thank you very much on your reply.

I appreciate that some of this mortgage stuff is not something you have been dealing with but I do apreciate and I am forever grateful my friend on all your help you have provided so far.

 

I will buzz Sequenci and ask him if he could have a look these mortgage documents.

 

Paul can you shed some light about this Allocation /Case Management hearing - is this final hearing or something else, what happens on this hearing.

 

What would your advice be regarding documents that lenders/solicitors have not supplied even though they were requested by Part 18 - do I write them again asking for other documents or S.A.R - (Subject Access Request) them or write to the court to tell them that they have not provided any documents.

 

You mentioned you were helping in similar case where they got order from court. Is it order for same or similar hearing or different thing altogether?

 

Best regards

[pt2537]

Hi Jody

 

Thank you very much on your reply.

 

1. They did send one page Mortgage deed certificate but all it has on it is just signatures and names nothing else.

 

2. They did not provide Statement of Account even though they said in their leter that it was enclosed. I did not S.A.R - (Subject Access Request) them but was requested through Part 18 letter, copies were sent to lenders direct as well as to solicitors.Should that not have been sufficient?

Should I S.A.R - (Subject Access Request) them now? What do I need to put in the letter, is there any templates? If I do it now what time do they have to respond to it?

 

3.I have no clue what this insurance is about. It looks high for it to be contents/buildings insurance.

Talking about xtracover insurance it rings bell somehow, I remeber seeing it somwhere, although it could have been at Halifax branch being advertised at the time, but I can not remeber what it was for or about

 

4. Allocation Hearing - Paul can you please shed some light on this, is this supposed to be final hearing or something else? Now that i can give you some pointers on,

 

an allocation hearing is not the final hearing, it is to allow the judge to consider the case and what directions are needed to be ordered and to consider what track the case will be allocated to etc.

 

 

 

5. As for endowment I can not honestly remeber what happened to it, it has been so long.

But with the view of misselling of all endowment policies could I counterclaim against them for this?

 

Best regards

 

 

.....

[pt2537]

Hi Paul

 

Thank you very much on your reply.

I appreciate that some of this mortgage stuff is not something you have been dealing with but I do apreciate and I am forever grateful my friend on all your help you have provided so far.

 

I will buzz Sequenci and ask him if he could have a look these mortgage documents.

 

Paul can you shed some light about this Allocation /Case Management hearing - is this final hearing or something else, what happens on this hearing.

 

What would your advice be regarding documents that lenders/solicitors have not supplied even though they were requested by Part 18 - do I write them again asking for other documents or S.A.R - (Subject Access Request) them or write to the court to tell them that they have not provided any documents. this is something which i would raise at the allocation hearing i am fairly convinced that providing the significance of these documents laid before the judge, the judge will order that they produce the documents

 

You mentioned you were helping in similar case where they got order from court. Is it order for same or similar hearing or different thing altogether?

 

unfortunatley no, on the other case they did not file AQs so their case could be struck out

 

 

Best regards

.......

[jody123]

Hi Count,

 

In terms of expediting this mess I would ring or fax the solicitors (recording the call if possible) and ask them for the statements of account that they say they included but haven't.

 

You could S.A.R - (Subject Access Request) Howard but it will cost you £10 and they would have 40 days in which to comply - and even the they probably won't send you everything. If you have the endowment policy make sure that you include the policy number in the SAR.

 

Defences: 12 year limitation rule could possibly apply - in that it could be argued the time to recover starts to run from the cause of action - I.e. when you originally defaulted on the mortgage which is more than 12 years ago. Furthermore as the property was repossessed it could also be argued that the debt is no longer against a property as they invoked their right to sell it and so it becomes a mere contract debt - this has been successfully argued through the court of appeal.

 

Hopkinson V Tupper:

Auld LJ considering the claim...

 

In my judgement, it is seriously arguable that where a mortgagee has re-possessed and has sold the security and is seeking to recover the shortfall, his claim is in simple contract whatever the nature of the instrument under which the debt was initially secured.

 

The claim... whether for principal or interest, was not for or in respect of a sum "secured on a mortgage or other charge" as prescribed in those provisions. The property the subject of the mortgage had been sold long before the action was commenced.

 

Much depends upon what the mortgage deeds says and as yet I've not managed to wrap my head around this.... Perhaps sequenci will be able to shed some light on this.

 

Jody

[patrickq1]

Debt Factsheets - Mortgage Shortfalls

[patrickq1]

Limitation law and the six year rule

hope some of this explains it better

patrickq1

[patrickq1]

Article - Equity and Trusts

[Count]

Article - Equity and Trusts

 

Hi Patrick

 

Thank you for posting these links.

Have you by any chance got the second part of the Article - Equity and Trust.

 

I am finding this paragraph confusing, can anybody please shed some light on what is meant here:

 

"Secondly, under s 101 of the Law of Property Act 1925, the power of sale does not arise, that is it does not exist, until the ‘mortgage money has become due’. and, and this is the significance, in the absence of a power of sale, a purchaser from the lender would not get a good title. The borrower would be entitled to have the sale set aside and recover the property. In the present case, you will see that condition 12, quoted above, caters for this by providing that on any of the specified defaults, ‘the redemption money shall become immediately payable to the society….’ A purchaser would need to check that this had indeed happened."

 

Many thanks and best regards

 

Count

[patrickq1]

A mortgagee has a power of sale. This does not arise until repayment of the loan is due. This means that if the mortgagee(lender) did sell it before the money was due, the purchaser wouldn't get absolute title (i.e. his interest would be subject to a prior interest (the mortgagor's) in the property). This means that the borrower (mortgagor) would be able to demand the property be given back.

 

Condition 12 says that on certain things happening, the money becomes due. This means that the lender would be able to sell the property to a buyer, who would get good title (i.e. the property would not be subject to someone else's rights). A purchaser would need to check that the alleged default had actually happened, because if it hasn't, the money isn't due, so the power of sale doesn't arise and so good title would not be able to become acquired

[sillygirl1]

They can ONLY claim 6 years interest, NOT interest to date, so that is another reason you have to defend yourself.

 

They are trying it on, if your ex OH has done some kind of Full and Final payment they CANNOT come after you.

[sillygirl1]

Part 18 of the CPR rules state they have to send you all information they have on you, there is a specific format for this. I am going after my old lender on this one, they have fouled up on a couple of aspects which are now in MY favour instead of theirs.

 

It is the Civil Procedure Rules and demands certain documentation be made available to you to make a proper claim, if the information isn't available then you can ask for THEIR claim to be struck out as they haven't complied with the CPR Part 18 rules.

[tomterm8]

I can't help but think that it would be a very good first step to contact national debt line, and discuss the situation with them.*

 

frankly, I am too far out of my comfort zone in this to give any definitive advice, although I would suggest you would need to look at the securititisation provision in the contract - which expressly secures the interest against the property, suggesting that the interest itself may be an action on a specialty.

 

 

Edit: sallygirl, the part 18 and part 32 provisions do not mean they are required to provide the information, without a court order to that effect. however, if they fail to provide information without good reason they would be breaching the overriding objective, and this might impact their costs.

 

* frankly, it is very important to get qualified legal advice at this time IMHO