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

[patrickq1]

Did You Get The Pm Jody

[jody123]

Hi Patrick,

 

Yup, got the pms - I've replied too...think I need to go back to uni!

 

TomTerm8

 

Thanks for the info - was worth a shot anyway. Is it normal practice for sols not to provide docs such as deeds and mig contracts - if they believe they are right and there is no defence to their claims why do they not provide the docs when they put the claims in??

 

Thanks everyone for your input - I do appreciate it both for my friend, and also anything I may be able to do for Count.

 

cheers,

 

jody

[tomterm8]

Hi Patrick,

 

Yup, got the pms - I've replied too...think I need to go back to uni!

 

TomTerm8

 

Thanks for the info - was worth a shot anyway. Is it normal practice for sols not to provide docs such as deeds and mig contracts - if they believe they are right and there is no defence to their claims why do they not provide the docs when they put the claims in??

 

Thanks everyone for your input - I do appreciate it both for my friend, and also anything I may be able to do for Count.

 

cheers,

 

jody

 

No, it's NOT normal practice, they should provide you with this info, and the judge would have the authority to place an UNLESS order on them, that they must provide the agreement or have the case dismissed.

 

The difference is that it is up to the discretion of the judge, in this case.

[jody123]

Hi TomTerm8,

 

The lenders don't even want to provide us with this info and have just finished drafting a Letter Before Action...based on their non-compliance of S.A.R - (Subject Access Request).

 

Its not that I'm trying to be difficult - its just that the first my mate heard of the shortfall was in January 2007 - and if as they suggest they first contacted my mate first in June 2000 - although this has been amended to "dialogue between the claimant's agent and the defendent in 1999 and 2000" in the court papers - then why was a claim for judgement or an agreement to repay not made then??

 

I suspect that they are trying to get around the 6 year CML rules - and assume that even though they have not made contact within the six years that this is no defence??

 

Regards,

 

Jody

[tomterm8]

The limitation act would be more significant in court... basically, CML is very weak, it can be got around easily.

 

Are they claiming within 12 years of the original breach of contract, or 6 of the repoesession order? that's the main thing.

[jody123]

Hi Tomterm8,

 

Sorry I seem to have cross posted my mates case onto counts - they are very similar cases...

 

In my mates case:

 

They are claiming within 12 years of the original breach of contract if you discount the sporadic payments since the first default in 1993 and the transfering of the property to the recovery unit in 1995, the last payment being in 1998. Repossession was in August 1999 so that is outside the 6 years. However, there is a term in the 1988 conditions which states all insurance monies received would be used for payment of the redemption money - and the MIG was paid for as a lump sum and then subsequent monthly payments from Loan B we believe and as such it is arguable that the insurance is in fact a guarantee and therefore limitation kicks in after 6 years for money under the mig.

 

There's also a serious case of underselling - Bought in 1991 for 36.5 and sold in 1999 with comparable properties between 28 and 36 according to their valuation (although 34-36 in the same street) and they valued at 22-25 and sold for 23 (in thousands obviously) Unless of course they are going to argue that having a front porch on your house adds 40% to its value.

 

There was also an endowment policy for 29.8K that the lenders paid for the first five years of the mortgage, and yet when the policy was surrendered more than 8 years after inception - and after repossession I might add - they paid out 1.8K, unless of course the 18K that appears on the account as a payment is in fact the balance of the endowment policy premium that they have failed to mention to us....although admittedly that would have to be a very well performing endowment....

 

I think that the MIG may have been one taken out for the difference between what was paid as an endowment, and what would have been paid as a repayment...but I'm not sure without the policy documents...in which case a recent case stated 6 years for recovery...

 

 

In Counts case they state that there was no mig, it appears they are claiming with 12 years of last payment and more than 6 years following repossession and again they sold a 72 K house for 53 K....

 

Jody

[sequenci]

I think that the MIG may have been one taken out for the difference between what was paid as an endowment, and what would have been paid as a repayment...but I'm not sure without the policy documents...in which case a recent case stated 6 years for recovery...

 

Which case was this?

 

My training as always lead me to believe that under s5 Mercantile Law Amendment Act 1856 the insurer would 'stand in the shows' of the lender and assumes all the rights of the lender. The right for the MIG insurer to sue is the same as the lender (Orakpo V Mansion Investments [1978]). This means the limitation period is 12 years capital + 6 for the interest.

 

If there is anything new that seems to go against this I would love to know.

[pt2537]

ill trawl the databases to see what i can find

 

AFAIK Manson was still relevent case law

[jody123]

The question mark over a mig is Banfield V Leeds Building Society 24 Jan 2007. Citing Denton's Estate [1903] 2 Ch 178.

 

Law commission scoping paper in 2001 in which it states that Insurers have 6 years in which to chase for MIGs

 

On Orakpo....The leading House of Lords’ pronouncement on subrogation to an unpaid vendor's lien is the Orakpo case, where

Lord Diplock23 observed that the mere fact that money has been expended upon discharging a secured liability of

the borrower did not give rise to any implication of subrogation unless the contract under which the money was

borrowed provided that the money was to be applied for this purpose. His Lordship suggested that the origin of

the right of subrogation is the contract between borrower and moneylender for the loan of money by the

moneylender to the borrower. In the absence of a contractual obligation upon the borrower to apply the monies in discharging a security on the property of the borrower in favour of a third party, the parties’ expectation that the money would in fact be used for this purpose did not give rise to any right of subrogation in the moneylender, even if the money were so applied

 

or perhaps I'm reading the above wrong....

 

also in relation to the lenders taking possession whilst a life insurance policy was still in force does the following apply...

 

an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Any advice gratefully received.

 

Jody

[patrickq1]

an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

i have been reading up on right to reciscion all day yesterday weird huh

will let you know the find later today

patrickq1

one of the reason why i am also looking into the the privity of contract as it also is linked

patrickq1

[tomterm8]

an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Any advice gratefully received.

 

Jody

 

Not at all. In this case, the lender has recieved a court reposession order, and, in fact the debtor breached the contract first.

 

The CCA 1974 prevents rescission of contract until a default notice has been served and a prescribed period of time has passed. but CCA 1974 does not apply (nor does CCA 2006 in this case)

 

with MIG's there is a contractual obligation to pay the mortgage, and so in my view from the summary you give, Banfield V Leeds Building Society would be distinguished on facts. This is the reason that you should always get a contract which either states YOU are the beneficiary OR some form of income protection policy.

[jody123]

Hi Tomterm8

 

In this case and in my mates case they won't supply details on the MIGS or the Deeds/conditions of mortgage offer...making it pretty difficult to ascertain what the contractual obligations are.

 

Re the Court Order....I thought that the right to foreclose would not occur whilst a life policy was in force....even if they got a repossession order - if this was done before the life policy was extinguished, then is that not unlawful?

 

Sorry - just want to explore all angles....

 

Jody

[patrickq1]

just who excactly will not supply the documentation or contract and details surrounding the sale is it the insurance/solicitors acting for the mortgage co/or ?

[patrickq1]

a DCA

[Count]

Hi Everyone

 

My apology for not been around for the last couple of days to update you on my court hearing on Wednesday as I was in transit

 

This has been very nerve wrecking week for me.

 

First of all I would like to thank you all so much for all your help, advise and words of support, very much appreciated and forever grateful.

 

Well, at the hearing judge has opened fire of questions to the Wragge solicitor as to why they have not responded to Part 18 request and provided information requested, or why they didn’t respond with an explanation as to why they couldn’t provide documents requested.

 

Judge was not pleased at all with their conduct.

 

All solicitor could say that they thought most of the information requested was not relevant for me to prepare adequate defence, to which judge said that most of the information asked was relevant indeed and if requested under CPR rules it should have been provided within timescale given without any excuses.

 

He gave directions and timescale for solicitors to provide it and then to have another hearing in May.

 

It goes without saying that solicitors ended up with an egg on her face.

 

He has asked me what is defence based on and I said that I thought it was statute barred hence asking HBOS to prove it. At that point I said that I could qualify for legal aid, this was Jody’s idea, Jody thank you very much, but that I did not want to involve solicitors before we had all of the documentation from lenders as it would be waste of their time, and that once we have all of that then we will see if defence may need to be altered and /or to include counterclaim for underselling the property

 

Well, Wragge solicitors jaw must have dropped down to the floor when she has heard me say that.

 

I have come across an article as well which says that if Lenders do not let you know that there is a shortfall within six years of repossession and if you feel that house has been undersold and may want to counterclaim, then by not letting you know within six years they are denying you your legal right to counterclaim against them as it can only be done within six years. That is against European Law on Human Rights, Article 8 as it is not fair play, lenders saying that they may have 12 years to pursue shortfall and by not letting you know about shortfall in the first place then you are out of time to counterclaim.

 

And situation is going to get worse and lot more people will end up in the same situation, something needs to be done to make changes in the law because as it stands now it is one big minefield, even legal professionals do not know where the law stand, some cases support 6 year limitation some 12, lenders are saying they are abiding by the CML code which they are not, and whilst all this is happening lenders are getting away with murder and lot of people suffer.

 

Please have a look at this article I came across;

 

'Greedy' banks push up mortgage rates - Telegraph

 

It makes an interesting reading.

 

It is another indication on how banks are creating misery for millions of people and are pushing them further and further into debt by putting their profits first.

This action, of course, will lead into repossessions, shortfalls - I guess it is the way banks beef up their profits by stealth.

 

It would be interesting to hear them publicly what they have to say about it.

 

And yet they are saying they abide by CML code of conduct and exercise duty of care to their clients.

Blatant and obvious lies.

 

And this article:

 

BBC NEWS | Business | Home repossessions rise to 27,000

[patrickq1]

well done count

patrickq1

[patrickq1]

for jody it might be worth a letter express delivery to the solicitors involved that you are asking the LAW SOCIETY TO PUT FORWARD A SERIOUS COMPLAINT TO THE DICIPLINARY TRIBUNIAL for their failure to admit the neccessary information and trying to frustrate the claim

patrickq1

[PriorityOne]

Great result so far, Count.... well done !

[pt2537]

Great Result Count,

 

i feel rather guilty for not looking in sooner as i said i would in my email but i have been rather busy lately

 

keep us updated as things go

 

regards

paul

[jody123]

Hi Count,

 

Hope you had a restful weekend...and that this week will bring some letter from the solicitors...from our discussions I believe that you are entitled to Legal Aid and I would recommend that as soon as the paperwork arrives you go straight round to one in your area.

 

I would also consider contacting your local MP regarding the above point on Human Rights law...and also ask when the Draft Bill on amendments to the Limitation Act will be decided....particularly as it was put forward in 2001 - and your case would now be time barred had the rules been brought in when the bill was drafted...as would my friends....

 

Hey ho...

 

speak soon,

 

Jody

[jody123]

PatrickQ1

 

If I do the letter to the sols re the Law Society - will this not just antagonise the solicitors??

 

Jody

[tomterm8]

Yeah, it is great news.

[patrickq1]

i doubt it will antagonise them it will serve as a warning to them that they or if they are in breach then they would obviously reconsider their position as a letter to their watchdog does not go down to well and it has to be investigated they have some explaining to do on this one and i dont think they would want to explain what looks like them being in breach of the law societies principles of fairnes and transparency ,you will also get all the information if it exists,which i am inclined to think it does not

patrickq1

as i said they are chancers..

[jody123]

Patrickq1/Tomterm8/Priority1.PF2537

 

I've now posted on my thread with regard to my mates problem of non supply of documentation....

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/123416-another-county-court-summons.html

 

can you let me know what you think??

 

regards,

 

Jody

[Count]

Hi All

 

Still no contact from solicitors or lenders with any further documentation. I am still waiting for the follow up letter from the court following hearing confirming directions and timescales given for production of the documents.

 

Jody thank you very much on your suggestion - I am going to arrange to see MP to find out where the law stands with Article 8 of the European Law on Human Rights

If the lender do not provide the information about sale of the property within the 6 year following repossession and they undersell it then they are denying legal right to counterclaim against them as the time limit is only 6 years and this apparently contravenes European Law on Human Rights.

 

Also by claiming that they have 12 years in which to pursue shortfall and there is only 6 years in which one can counterclaim against them for underselling the property is not level and fairplay playfield.

 

I am also thinking of preparing an article and my own video commentary on the shortfall issue which I am planning to use advantages of Web 2.0 and Internet Social Networking Sites and the power of Internet to raise as much awareness as possible about below the belt ruthless tactics lenders and their solicitors employ.

 

The way things stand at the moment with number of repossessions rising day by day there will be lot of people in a same situation 10-12 years from now if we let lenders get away with it.

 

Someone, somewhere, whether it is Government or Law commission has to take notice and recognise seriousness and implication of this issue and do something about it to make changes necessary and to regulate this properly and reasonably.

 

I would be very grateful to anyone who can help me formulate article and/or help me with comments and advise on the main points to mention in the video commentary.

 

Best regards

 

Count