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

[sillygirl1]

I think they are in deep doodoo anyway chasing the whole f the debt interest after this length of time. The law is quite clear on this and Wragge are pushing their luck.

 

If they don't disclose at the AQ hearing ask the Judge about going for a complaint to the Law Society about them frustrating your access to data they will rely on in court....

 

I think they were hoping for a CCJ on the basis that the claim wasn't going to be defended and neither they nor you would show up at court.

[jody123]

Can anyone tell me whether section 108 of the LPA 1925 also refers to MIGs...

 

Law of Property Act 1925 (c.20) - Statute Law Database

 

I am particularly interested in how section 108 (4) relates to recovery of the money by an insurer....

[Count]

Hi Count,

 

This is what I would be doing if I were you...

 

Statements:

Can you tell when the last payment was made by you? I don't mean from the sale of the property, but the last physical payment that was taken from your bank account, or paid over a counter by you?? From this you would be able to work out the cause of action...from which the 12 years would run for a statute barred debt assuming that the debt is a speciality i.e. on a deed - to establish this you need to read the mortgage offer and the deed and the mortgage conditions.

Is there a loan A and a loan B showing on the statements?

Is there a list of the payments made to loan B if there is one?

have they added any solicitors fees to the mortgage account prior to the property being repossessed - from what I recall from the mortgage conditions this is not allowed and could mean that the repossession was not legal in the first place - but you would need to check.

Tot up the amount that you have been charged for failed payments.

 

Tot up the amount that you have paid over the years in interest insurance etc etc., as these figures should tally with what their claim states.

 

Can you guesstimate how much the property was undersold by?

 

Have you also got a copy of the deed yet - as without this you will not be able to tell what specific rules and regs relate to you.

 

I have a document from the law commission dated 2001 in which they recommend various revisions to the Statute of Limitation Act - the time limit for chasing mortgage shortfalls should be 6 years with a lockout at 10 - i.e. if they haven't chased and no acknowledgement is made then it is statute barred forever - I've got an e-mail in to the law commission on what their recommendations mean in terms of the law as it is today, but am still waiting on a response.

 

For the actual hearing itself I would be inclined to make a list of all the things they have not complied with, with a note against each point stating why you want it - this should hopefully get the judge to order them to comply.

 

i.e. Without the mortgage offer/deed you cannot comment on whether the alleged debt would be statute barred

What specific rules would apply to the shortfall debt as surely repossession is their legal remedy

 

For yourself only I would work out how much you owed before the repossession excluding any charges they made for none payment

Deduct from this the amount of shortfall you think that they owe you.

 

Then if it turns out that you do owe the money and its not statute barred - and you feel like making an offer you have a figure that would be your maximum - I would not include their costs as they should have been able to prove their case prior to claiming - the fact that they have still not proven it means that even if they were successful there's a good chance that the judge would not award costs - at least that is what I would argue....

 

If however you feel like going the whole hog - possibly losing the first time around and going to appeal on the grounds that they have signed up to the CML "voluntary" code of mortgage practice (something that was dreamt up to prevent the government stepping in and making a code obligatory - and possibly more rigorous and restrictive!), that they have left it so long to claim and its not fair and just as per the law commission's recommendations to limit the time for claiming to 6 years - and your case is well over this time, then you really need all the documents that you have requested in order to prepare for your appeal.

 

Did anyone answer the question on whether you could counterclaim for the shortfall whilst claiming statute barred for the debt??

 

Regards,

 

jody

 

Hi Jody

 

I have copy of the deed but it is single sheet of paper only which only has signatures on it. There is no mention of any conditions etc. What came with it was mortgage deed terms and condition which I have posted on this thread previously and I have gone through them number of times and do not see any mention or reference to it being “speciality debt”. I would welcome any comments from anyone who has read it as I may be missing something..

 

Trouble with the statements they have sent, there is no explanation what the figures are for just shows as payments but not broken down so that one can identify if there was MIG or not. I am going through them with the fine comb through it and should be able to send some feedback tomorrow. They are claiming that there was no MIG, after all these years I am not sure whether there was one or not although can recall some mention about it, but how can I prove if there was one or not?

 

I have had property up for sale if I can recall it rightly for £ 72.000, that’s what it was valued at back end of 1996, as I was trying desperately to sell it instead of being repossessed and they sold it for £ 53.000.

I have had few viewings but Halifax would not allow me any extra time to try to sell it as they wanted to take possession .Also they have only marketed property through their own Halifax Estate services, they have not sent me official valuation and have not even bothered to obtain other quotes from other estate agents.

 

By the way did you get any response to your email from the law commission?

[Count]

It doesn't matter whether contact was made - only whether count admitted the liability or paid a part payment....

 

The contact is only relevant for them to prove if Count wants to go down the CML route in court that they have not honoured their signature to the voluntary code of practice....which might not be a bad idea in light of the documentary that's afoot at the moment - as lets face it the more people who highlight the banks ignoring their own code of practice the quicker the government will bring in statutory regulations of the banks - again - not a bad scenario in my opinion as if you read the draft amendments to the limitation act the banks are still the most protected in law....

 

Jody

 

Hi All

 

Thank you all very much on all your efforts and your help, very much appreciated and forever grateful.

 

This whole thing is like big mine field .

 

I am getting bit confused here, does the limitation time starts from the first default or the last payment made on the account?

What constitues admiting liability etc?

 

Best regards

[Count]

..

 

Hi Tomterm

 

Than you very much on your reply.

 

in your reply you suggest to ask judge about standard disclosure. Can you please explain what is meant by " standard disclosure"

 

Best regards

[Count]

..

 

Hi Tomterm

 

Your wrote in your reply:

 

The CML policy defines contact in much looser terms than the staute of limitations.

 

Can you please explain how does CML define contact in comparison with Limitation act.

 

Many thanks

[tomterm8]

Hi Tomterm

 

Than you very much on your reply.

 

in your reply you suggest to ask judge about standard disclosure. Can you please explain what is meant by " standard disclosure"

 

Best regards

 

standard disclosure requires people to disclose:

 

Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

© the documents which he is required to disclose by a relevant practice direction.

the court may order limited disclosure, or, indeed, may order non-standard disclosure if it is in the interest of justice. The relevant practice direction can be found http://www.justice.gov.uk/civil/procrules_fin/pdf/parts/part31.pdf .

 

There is no automatic right to standard disclosure in small claims track cases.

 

 

 

Hi Tomterm

 

Your wrote in your reply:

 

The CML policy defines contact in much looser terms than the staute of limitations.

 

Can you please explain how does CML define contact in comparison with Limitation act.

 

Many thanks

 

Contact means that they send you a letter, or phone you, or otherwise inform you they will be attempting to reclaim the shortfall.

 

The limitations act disregards any contact except an acknowledgement of the debt (i.,e. you saying you owe it) and such acknowledgement must be in writing, although I believe there is an alternative view that says a telephone recording MAY be admissable it is hardly doctrine.

[jody123]

Hi tomterm,

 

This is not a small claims track - this will be a multi track case due to the high figures involved. As such should they not have to disclose documents as part of CPR 18 rules? - although admittedly they may well say that they do not need to supply the mortgage deed as its implicit that one existed.

 

Count,

 

MIGs - on the first page of your borrowers report is there a figure for "Higher lending charge" - this would be the MIG - with an initial payment - probably added to your mortgage and then further "payments" in the guise of service charges throughout the term of your mortgage. Alternatively I assume that Wragges sent you a completion statement - in which case again it would be listed as a higher lending charge or fee.

 

Given the figures and the fact that you had the property up for sale prior to being repossessed and they did not give you time to sell, then you may need to consider making a part 36 offer - basically this would involve you working out how much they say you owe them prior to the interest being added and then you working out how much they undersold the property for. I would suggest that you take the "property index value" as your starting point - this will be on the last printout of your borrowers report. It could be deemed that they got a reasonable price if the property sold for + or_ 10% of the property value - which yours clearly isn't. I'm not sure where things stand when sold at auction, but anyway take the figure they say you owe them and the figure you say they owe you for the underselling and then if you can - make them an offer of that figure. From what I can see there shouldn't be much in it and I suspect that you could argue that they owe you more than you owe them. However I would only do this if there is no chance of claiming a statute of limitation based on the last payment you made.

 

If you want you can pm me with the area you live in and if poss I can come over and have a look through your statements for you to see if I can work out when your last payment was...either that or you're going to have to do a lot of scanning. A guide would be when the charges started to appear on your statement without any credits in between and then work backwards.

 

Jody

[tomterm8]

Hi tomterm,

 

This is not a small claims track - this will be a multi track case due to the high figures involved. As such should they not have to disclose documents as part of CPR 18 rules? - although admittedly they may well say that they do not need to supply the mortgage deed as its implicit that one existed.

as far as I know, the case has not been allocated to a track yet - though I can't afford the time to go through all the pages of this thread to be sure;) So, I included this information for comprehensiveness.

disclosure is in accordance with part 31, the part I provided to Count.

 

Until it is allocated to a track, there is no automatic right to disclosure; however, I agree with you that the case will probably be fast or multi track, in which case there WILL be a right to disclosure.

 

 

Count,

 

MIGs - on the first page of your borrowers report is there a figure for "Higher lending charge" - this would be the MIG - with an initial payment - probably added to your mortgage and then further "payments" in the guise of service charges throughout the term of your mortgage. Alternatively I assume that Wragges sent you a completion statement - in which case again it would be listed as a higher lending charge or fee.

 

Given the figures and the fact that you had the property up for sale prior to being repossessed and they did not give you time to sell, then you may need to consider making a part 36 offer - basically this would involve you working out how much they say you owe them prior to the interest being added and then you working out how much they undersold the property for. I would suggest that you take the "property index value" as your starting point - this will be on the last printout of your borrowers report. It could be deemed that they got a reasonable price if the property sold for + or_ 10% of the property value - which yours clearly isn't. I'm not sure where things stand when sold at auction, but anyway take the figure they say you owe them and the figure you say they owe you for the underselling and then if you can - make them an offer of that figure. From what I can see there shouldn't be much in it and I suspect that you could argue that they owe you more than you owe them. However I would only do this if there is no chance of claiming a statute of limitation based on the last payment you made.

Remember, also interest payments may be covered by a 6 year limitation period.

 

If you want you can pm me with the area you live in and if poss I can come over and have a look through your statements for you to see if I can work out when your last payment was...either that or you're going to have to do a lot of scanning. A guide would be when the charges started to appear on your statement without any credits in between and then work backwards.

 

Jody

..

[Worriedaboutdebt]

I have a similar problem to this. But I entered in to an agreement to settle for £3,300 against an original shortfall of £23k. I paid back the agreed amount at a rate of £50 per month, this took 6yrs. I stopped my standing order when I finshed paying but now the mortgage company representative say I have to keep paying as they have no record of our agreement and the man I agreed this with has left the company!!! I asked why if there had been no agreement were they accepting the £50 without query nor contact and they admitted it was unusual. I have told the building society that I'm not paying anymore and they should honour the agreement. The building society have now started proceedings against me for £30k (interest added). I have put in a defence explaining about the agreement and that they had accepted £2,550 from my ex for his part but I am not sure where I stand as I cannot find any documentation from them either!!!

[patrickq1]

hello everyone ???i am frustrated any more about this case as i see it it is wragg ...chancers on what seems to be statute barred ...their are so many arguements in favour of count that he need not worry...wragg have been deliberate in the frustration and they really did not expect a defense,it is possible they see his new homestead as being proffitable,and they thin or thought their was milage in it ,i thought this case was for the 27/28 january anything new count

patrickq1

[patrickq1]

also had another look through the whole thread,the question of the MIG good Q P1,you have the right to see this document,as i feel they have been paid on it also if they have not got it they are screwed,IMO

patrickq1

[jody123]

I've been trying to get hold of count for the last couple of days - his court hearing is due tomorrow, and I hope all is ok with him....

 

As far as I can tell if his last payment was prior to October 1995 then this is a statute barred debt.

 

if it isn't then I would be looking for proof that they contacted him about the shortfall.

 

then I would be looking at how much the property was undersold by

 

The interest is statute barred, so only the original shortfall would be applicable, plus interest under s69 of the county court act, but bearing in mind that they haven't played fair in provision of paperwork etc etc I would be asking for these damages to be waived.

 

if his original loan was more than 90% of the purchase price, then I would suggest that an MIG would have been in place.

 

I would also be asking why, given the CML code of conduct for mortgage lenders and their policy of fair treatment they have not waived their right to chase for payment on this shortfall. Certainly this puts Count at a distinct disadvantage over current customers, particularly if there has been no contact in the last 6 years it is inequitable.

 

Are you around Count...

 

Jody

[PriorityOne]

Count ??! We're all rooting for you tomorrow.... please let us know how it goes and the very best of luck !

 

[jody123]

I spoke with Count briefly this afternoon - after the hearing I'm sure he'll be along at some point to give you his write up, but basically the judge was none too impressed with wragge's non disclosure of documents, and there was mention of there not getting full damages/costs even if they won....I'll let Count tell you about the solicitors reaction to his entitlement to Legal Aid!!!

 

Jdoy

[pt2537]

well, my fingers are crossed for count,

 

i did say i would look in on the thread a while ago but i just havent had the time. i have been seriously tied up on my own case plus the issues surrounding parking which i am pursuing my local authority over their unlawful activities but thats another story.

 

if theres anything i can do albeit at this late stage, shout and i will see what i can do.

 

however mortgages arent my area of comfort,

 

regards

paul

[tomterm8]

As far as I can tell if his last payment was prior to October 1995 then this is a statute barred debt.

 

Jody

 

I think you are correct, as long as the action was after october 2007.

[patrickq1]

i do not think wragg will wish to continue considering his legal aid status,also it will now start costing them money to persue this and i think like P1 said they must have claimed on the MIG ,

like i said they did not expect this to go this far,hence no documentation has arrived good for count

patrickq1

[jody123]

Even if they claimed on the MIG - can they not chase for 12 years under subrogation? I'm looking at case law that is specific to Contracts of insurance and guarantee, and proposals put forward by the law commission in 2001 which would indicate that they can only chase a mig for 6 years...

 

Anyone clarify??

[tomterm8]

they can chase for 12 years, but my understanding is that this is from the period they could first reposess. They can also claim for 6 years under the reposession order, I assume.

[patrickq1]

i wonder if by mistake a response has been made by counts ex during the 12 year period and this is what they are banking on even so what you say jody i thought mig was six years

patrickq1

[patrickq1]

Jointly-owned debts

 

If your mortgage was in joint names, you need to check what the other borrower has done. If they acknowledge the debt it doesn't affect you BUT if they have made a payment the limitation period starts running again for both of you from the date the last payment was made.

[jody123]

I think that Count's mortgage was Joint with his wife. There has been no mention of payments on account since the property was repossessed, and they have not mentioned it - and surely if the wife had paid anything then the debt would be less?!

 

The judge has given directions to the claimants to produce all the docs that count has requested, and once they arrive we're going to go through them with a fine tooth comb whilst at the same time consulting with a legal aid solicitor...

 

Then we'll see.

 

Jody

[jody123]

Another point...

 

If the mortgage deed is not produced is the debt not chasable....as it is with CCA's? Just a thought!

 

Jody

[tomterm8]

No, Jody. Not as far as i am aware.