Patrickq1 v HFO/Morgan Stanley

[patrickq1]

just back from hospital i should say twin bypass five weeks ago next a heart bypass in april next year if i live that long lol

patrickq1

[patrickq1]

i put this on a thread rory was on but he aint answering it

i am having trouble with HFO after almost six months of harrasment from them so i CCA them last week 28 nov 07 so i got in the post this morning the assignment of debt to HFO by MORGAN STANLEY whilst the debt is in dispute and MS are in breach of S.A.R - (Subject Access Request) notice for not providing all documents and agreement/contract also for adding second PPI whilst i was claiming from the origional PPI so what would be the best course of action now rory

[patrickq1]

Credit Agreement regulated by the Consumer Credit Act 1974

individual or company

(the Bank)giving time credit banking facilities and/or other accommodation to

COMPANY……………………………………………… …………………………………………………… .

REGISTERED OFFICE………………………………………………… ……………………………………………….( THE DEBTOR)

NOW

NAME…………………………………………………… … ………………./…………………………………………………… …………… ………….

ADDRESS……………………………………………… …………………………………………………… …………… …(THE GUARANTOR)

A. HEARBY GUARANTEE PAYMENT TO THE BANK ON DEMAND OF

B. ALL LIABILITIES OF THE DEBTOR TO THE BANK(IN WHATEVER CURRENCEY DENOMINATED)HOWSOEVER ARISING WETHER

C. PRESENT FUTURE ACTUAL OR CONTINGENT AND WETHER INCURRED SOLELY SEVERALLY OR JOINTLY AND AS PRINCIPAL OR SURETY.

(a)Provided that the total amount of such liabilities recoverable under this guarantee shall not exceed the sum of

-twenty thousand pounds- (the limit)

(delete words commencing or other such sum amount of limit where only sterling liabilities are involved)

or such other sum or sums expressed in any currency as shall at date of demand represent liabilities of the debtor to the bank the total equivalent of which in the currency of the limit (by reference to the Banks spot rate of exchange)did not when such liabilities were or in relation to several currencies the last liability was incurred exceed the amount of the limit

and(b) all liabilities of the debtor to the bank on account of interest on such sum or sums up to the date of default in repayment thereof by the debtor commission and banking charges relating thereto and all legal and other costs and expenses (on a full indemnity basis) howsoever incurred by the bank in connection therewith and so that as against the guarantor interest shall be deemed to continue to accrue and be a liability of the debtor hereby secured notwithstanding that for any reason interest may have ceased to accrue against the debtor and

(ii)Agrees to pay the bank interest on the amounts demanded under (a) and (b) above from demand hereunder until full discharge such interest to be chargeable at the rate of interest payable or deemed to be payable by the debtor(whether before or after judgement) as calculated and compounded in accordance with the practice of the bank from time to time together with all legal and other costs and expenses(on a full indemnity basis) howsoever incurred by the bank in connection with this guarantee.

the cost and expenses referred to herein shall include (for the avoidance of doubt)all amounts the bank may from time to time require to compensate it for its internal management and administration costs and expenses incurred in connection with the enforcement of this guarantee and recovery of all liabilities secured by it. a certificate signed by an officer of the bank as to the amount of such costs and expenses incurred by the bank from time to time shall for all purposes be conclusive evidence against and binding upon the guarantor.

the guarantor confirms as follows:

(1) the bank may without any consent from the guarantor and without affecting the guarantors liability hereunder renew vary or determine any accommodation given to the debtor hold over renew modify or release any security or guarantee now or hereafter held from the debtor or any other person including any other person liable under this guarantee in respect of the liabilities hereby secured and grant time or indulgence to or compound with the debtor or any such person and this guarantee shall not be discharged nor shall the guarantors liability under it be affected by anything which would not have discharged or affected the guarantors liability if the guarantor had been a principal debtor to the bank

(2) this guarantee shall be additional to any other guarantee or security now or hereafter held in respect of the moneys hereby secured

(3) this guarantee shall be continuing security and shall remain in force notwithstanding any disability or death of the guarantor until determined by three months notice in writing from the guarantor or personal representative of the guarantor but notwithstanding such determination the guarantor shall remain liable as guarantor for all liabilities of the debtor outstanding(whether or not due and payable)at the date of the expiration notice.

(4) The guarantor has not taken and will not take without written consent of the bank any security from the debtor in connection with this guarantee and any security so taken shall be held in trust for the bank and as security for liability of the guarantor to the bank hereunder.

(5) in respect of the guarantors liability hereinafter the bank shall have lien on all securities or other property of the guarantor held by the bank whether for safe custody or otherwise .the bank shall further be entitled (as well before as after demand hereunder)to set off against any credit balance in any account of the guarantor with the bank (whether current or otherwise or subject to notice or not)and against any interest accruing thereon the liability of the guarantor to the bank hereunder and if the liability or any part hereof is in different currency from a credit balance against which the bank seeks to set it of the bank shall be entitled to utilise currency of the account in credit for the purchase at its spot rate of exchange of an amount in the currency of the liability not exceeding the amount of such liability and also to pay out of the credit balance any additional sum which the bank may be required to pay such currency.

(6) (a) this guarantee shall apply to all of the above mentioned liabilities of the debtor to the bank and shall not be affected by any fluctuation in or intermediate discharge of such liabilities and until such liabilities have been discharged in full the guarantor shall not be entitled to share in any security held or money received by the bank on account of such liabilities or to stand in the place of the bank in respect of any security or money nor until such liabilities have been discharged in full shall the guarantor take any step to enforce any right or claim against the debtor in respect of any moneys paid by the guarantor to the bank hereunder or have or exercise any rights as surety in competition with the bank

(b)any moneys received by the bank in connection with this guarantee may be placed to the credit of a suspense account and such receipt shall not affect the right of the bank to claim or prove against the debtor (or any other liabilities or persons liable)for the entire amount of the liabilities of the debtor .such moneys or any part may at the banks option be applied in or towards discharge of such liabilities of the debtor as the bank may in its absolute discretion determine

(7) if this guarantee is determined or called in by demand made by the bank the bank may open a new account or accounts with the debtor or any other persons for whose liabilities this guarantee is available as security .if the bank does not open a new account it shall nevertheless be treated as if it had done so at the time of determination or calling in and as from that time all payments made to the bank shall be credited or treated as having been credited to the new account and shall not operate to reduce the amount for which this guarantee is available as security at that time.

this clause become a regulated agreement by virtue of this security and section 82 of the act

*PART V

ENTRY INTO CREDIT OR HIRE AGREEMENTS

Preliminary matters

55. Disclosure of information.

56. Antecedent negotiations.

57. Withdrawal from prospective agreement.

58. Opportunity for withdrawal from prospective land mortgage.

59. Agreement to enter future agreement void.

Making the agreement

60. Form and content of agreements.

61. Signing of agreement.

6

62. Duty to supply copy of unexecuted agreement.

63. Duty to supply copy of executed agreement.

64. Duty to give notice of cancellation rights.

65. Consequences of improper execution.

66. Acceptance of credit-tokens.

Cancellation of certain agreements within

cooling-off period

67. Cancellable agreements.

68. Cooling-off period.

69. Notice of cancellation.

70. Cancellation: recovery of money paid by debtor or hirer.

71. Cancellation: repayment of credit.

72. Cancellation: return of goods.

73. Cancellation: goods given in part exchange.

Exclusion of certain agreements from Part V

74. Exclusion of certain agreements from Part V.

 

( this guarantee shall not be discharged nor shall the guarantor ‘s liability be affected by reason of any failure of or irregularity defect or informality in any security given by or on behalf of the debtor in respect of the moneys or liabilities hereby secured nor by any legal limitation bar or restriction disability incapacity or want of any borrowing powers of the debtor or want of authority of any director manager official or other person appearing to be acting for the debtor in any matter in respect of the moneys or liabilities hereby secured or be any supervening matters rendering the performance of the obligations of the debtor illegal in any jurisdiction and such moneys or liabilities will be recoverable by the bank from the guarantor as sole or principal debtor.

(9) where there is more than one person comprised in the term “the debtor” reference to the debtor shall where the context admits take effect as reference to such persons or any of them and where the debtor is a firm shall include the person or persons from time to time constituting the firm whether or not under the same style or firm name and generally where the context so admits the singular will include the plural

(10) where this guarantee is entered into by more than one person the agreements and obligations on the part of the guarantor herein contained shall take effect as joint and several agreements and obligations and all references to the guarantor shall take effect as references to the said persons or any of them and none of them shall be released from liability hereunder by reason of this guarantee failing or ceasing to be binding as a continuing security on any others of them.

(11) payment shall be in the currency in which the liabilities of the debtor were owing or incurred or (if that currency is other than sterling) at the option of the bank in sterling such other currency being converted into sterling at the spot rate of exchange of the bank for purchasing such currency with sterling prevailing on the date of actual payment and the guarantor herby agrees to indemnify the bank against the full sterling price (including all costs charges and expenses).

(12) a certificate by an officer of the bank as to the amount for the time being due from the debtor to the bank as to the interest after demand from time to time payable hereunder or as to its applicable spot rate of exchange shall be conclusive evidence for all purposes against the guarantor

(13) a demand or notice hereunder shall be in writing signed by an officer or agent of the bank and may be served on the guarantor either by hand or post. in the case of a company service by hand may be made either by delivering the same to any officer of the company at any place or leaving the same addressed to the company at its registered office or a place of business last known to the bank. a demand or notice by post may be addressed to the guarantor at the registered office or address or place of business last known to the bank and shall be deemed to have been received on the day following the day on which it was posted and shall be effective notwithstanding it be returned undelivered and notwithstanding the death of the guarantor.

(14) any settlement or discharge between the guarantor and the bank shall be conditional upon no security or payment to the bank by the debtor or any other person being avoided or reduced for any reason and the bank shall be entitled(subject to any limit in the total amount recoverable under this guarantee) to recover the value or amount of any such security or payment from the guarantor subsequently as if such settlement or discharge had not occurred ,any liability of the guarantor under this clause(whether actual or contingent)shall be a liability in respect of which the bank may exercise the right created by clause (5) hereof.

(15) This guarantee is and will remain the property of the bank

(16) this guarantee shall be governed by and construed in accordance with the laws of England.

Edited March 12, 2010 by patrickq1

[patrickq1]

in answer to above now officially statute barred

National Westminster Bank Pl v Robin Ashe (Trustee in Bankruptcy of Djabar Babai) [2008] EWCA Civ 55

National Westminster Bank Plc’s (the “Bank”) appeal against a decision of the Chancery Division in March 2007 has again been dismissed. The Court of Appeal ruled in favour of the Bank’s borrowers, Mr and Mrs Babai, whose failure to make any mortgage repayment for more than 12 years, effectively gave them squatters rights on their £200,000 home. It was held that the Bank were no longer entitled to realise their security as they had failed to take any action to pursue that debt for more than twelve years.

Facts

The Bank was granted a second legal charge over Mr and Mrs Babai’s property in 1989 to secure Mr Babai’s liabilities on his accounts with the Bank. Mr Babai was then made bankrupt and did not make any repayments on his account after 1993. Although the Bank made formal demands for payment over the years, it did not actually obtain payment or protect its position with repossession proceedings.

In 2004, proceedings were instead brought by Mr Babai’s trustee in bankruptcy who submitted that the Bank was time barred from realising its security under the Limitation Act 1980 (the “Act”) and sought a declaration that the charge over the property be extinguished. The Chancery Division agreed that the Bank’s charge had been extinguished. This was the Bank’s appeal of that decision.

The Law

It is undisputed that the Bank had a right to repossess the property and that had it chosen to exercise this right of action earlier, it would have succeeded.

The main point of contention in this case was that under the Act, in order for Mr and Mrs Babai to claim outright ownership of their house, they needed to show that they had been in adverse possession of the property for 12 years (as required under Schedule 1 of the Act). The Bank tried to argue that the Babais were not in adverse possession as the Bank had given its implied permission for them to occupy the property and as such time could not have started to run. The judge however held that the Babais had exclusive possession of their mortgaged house and while the Bank certainly had a right to possession, they were not in possession, nor had they taken action to enforce this right. The Court held that ordinary possession of the property was sufficient and time started to run in their favour from the date of their last payment. As more than 12 years had elapsed since the date of the last payment with no proceedings being issued by the Bank, the Bank’s title was held to have been extinguished. NB: had a payment been made in respect of the mortgage debt since 1993, the limitation period would have stopped and time would have run afresh

Comment

While it would be unusual for a Bank to delay taking action for as long as 12 years, it clearly does and has happened. Here, the bank were hoping to come to an arrangement with the Babais for small monthly installments to be paid, however, in failing to set up this arrangement, they lost any right to claim their security over this property. Some critics fear that as a result of this decision, many other debts will be extinguished. Where borrowers are not making repayments, lenders should be very wary of allowing delays in enforcement. Lenders should check the position and act in a timely way to protect their security.

Reminder

We would remind lenders that any shortfall should also be pursued in a timely manner as following the House of Lords decision in West Bromwich Building Society v Wilkinson [2005] (please see our previous Case Law Update) the limitation period in which to reclaim mortgage shortfalls was also held to be twelve years from the date of borrower’s default.

Edited July 26, 2010 by patrickq1

[ukaviator]

New thread as requested Patrick

[patrickq1]

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Edited May 15, 2010 by patrickq1

[patrickq1]

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Edited August 23, 2009 by patrickq1

[patrickq1]

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Edited August 23, 2009 by patrickq1

[make them aktiv runners]

Not sure what you are asking here, as there is no history on this thread. The above is a mortgage so it is not covered by the CCA.

[patrickq1]

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Edited May 15, 2010 by patrickq1

[patrickq1]

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Edited August 23, 2009 by patrickq1

[un1boy]

I have had a quick look at this.

 

Mortgages in general arent covered by the CCA, however this agreement says it is regulated and therefore I would assume it would be.

 

What oyu need to let me know Patrick is what you want to achieve? The fact that this agreement is or isn't covered by the CCA is irrelevant as it is statute barred and therefore you are no longer obligated to pay it.

 

What I would say is DO NOT CONTACT THEM!!!

 

Are they processing any information on your credit file?

[patrickq1]

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Edited August 23, 2009 by patrickq1

[patrickq1]

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Edited May 15, 2010 by patrickq1

[un1boy]

Patrick, I am sorry for the problems that you have had - it is disgusting what the banking industry have and do get away with!

 

Imagine all those people who have commited suicide over their debts when most of the agreements aren't even lawful.

 

I'll look over how getting the charge off will work

[patrickq1]

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Edited August 23, 2009 by patrickq1

[un1boy]

cheers,i was and my wife very suicidal...their is more to this than you could ever beleive,my solicitor was struck of a bank manager fired,the bank had at the time in 1992 my barristors report for five weeks before i even knew it had been finnished,thats when the sh** hit the fan,i had them all scrying about like rats,even at the time i got agreement from the factories and transport to withhold all their invoices for 180 days yet the bank started making phone calls ...soon all offers were withdrawn....but as the years go by you learn to live with it...hence when the first bank action group began in 1991/2 i was the origional member ..but then no internet like we have now so a lot of travelling took its toll and it ceased doing any work to help anyone,so you can iagine my feelings for banks..regardless what a bank tells me i would nt beleive it unless it was in writing,then you can act accordingly

so we are over it mostly cept for this charge but it makes you wonder though why they never went to court...

so now i got HFO AND MORGAN STANLEY to deal with...

i maintain the PPI i claimed upon should have cleared the bill,it never even made a dent and during the insurance payment MS defaulted me thre times...and the debt was more than the origional bill...but i have just had an e mail from the Information Commissioners Office and they want all details about them and HFO ...but it was nt just HFO i have had 7 debt collecting companies all chasing this same debt ,so i am pretty angry with MS..

they actually stated at the time when i took ill they would write of any balances,instead they added another PPI lol can you beleive it i must have MUG printed on my forehead huh

patrickq1

 

Oh Patrick, I am sorry.

 

I don't trust the banks either at all - not even stuff they put in writing. I had one of them admit to a criminal offence in wirting then when I wrote back, they denied it!!! lol.....

[un1boy]

Have a read through this thread matey.

 

http://www.consumeractiongroup.co.uk/forum/legalities/11227-limitation-act-1980-lets.html

[un1boy]

Have you contacted the lender and acknowledged the debt at all since they last contacted you?

[patrickq1]

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Edited May 15, 2010 by patrickq1

[patrickq1]

also section 29 on the the pitfalls

 

29.

Fresh accrual of action on acknowledgment or part payment.

— (1) Subsections (2) and (3) below apply where any right of action (including a foreclosure action) to recover land or an advowson or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property has accrued.

 

(2) If the person in possession of the land, benefice or personal property in question acknowledges the title of the person to whom the right of action has accrued—

(a)

the right shall be treated as having accrued on and not before the date of the acknowledgment; and

 

(b)

in the case of a right of action to recover land which has accrued to a person entitled to an estate or interest taking effect on the determination of an entailed interest against whom time is running under section 27 of this Act, section 27 shall thereupon cease to apply to the land.

 

 

(3) In the case of a foreclosure or other action by a mortgagee, if the person in possession of the land, benefice or personal property in question or the person liable for the mortgage debt makes any payment in respect of the debt (whether of principal or interest) the right shall be treated as having accrued on and not before the date of the payment.

 

(4) Where a mortgagee is by virtue of the mortgage in possession of any mortgaged land and either—

(a)

receives any sum in respect of the principal or interest of the mortgage debt; or

 

(b)

acknowledges the title of the mortgagor, or his equity ofredemption;

 

 

an action to redeem the land in his possession may be brought at any time before the expiration of twelve years from the date of the payment or acknowledgment.

 

(5) Subject to subsection (6) below, where any right of action has accrued to recover—

(a)

any debt or other liquidated pecuniary claim; or

 

(b)

any claim to the personal estate of a deceased person or to any share or interest in any such estate;

 

 

and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

 

(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

 

(7) Subject to subsection (6) above, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.

 

20.

Time limit for actions to recover money secured by a mortgage or charge or to recover proceeds of the sale of land.

— (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.

 

(2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclose accrued.

 

But if the mortgagee was in possession of the mortgaged property after that date, the right to foreclose on the property which was in his possession shall not be treated as having accrued for the purposes of this subsection until the date on which his possession discontinued.

 

(3) The right to receive any principal sum of money secured by a mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall not be treated as accruing so long as that property comprises any future interest or any life insurance policy which has not matured or been determined.

 

(4) Nothing in this section shall apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act relating to actions to recover land shall apply to such an action.

 

(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.

 

(6) Where—

(a)

a prior mortgagee or other incumbrancer has been in possession of the property charged; and

 

(b)

an action is brought within one year of the discontinuance of that possession by the subsequent incumbrancer;

 

 

the subsequent incumbrancer may recover by that action all the arrears of interest which fell due during the period of possession by the prior incumbrancer or damages in respect of those arrears, notwithstanding that the period exceeded six years.

 

(7) Where—

(a)

the property subject to the mortgage or charge comprises any future interest or life insurance policy; and

 

(b)

it is a term of the mortgage or charge that arrears of interest shall be treated as part of the principal sum of money secured by the mortgage or charge;

 

 

interest shall not be treated as becoming due before the right to recover the principal sum of money has accrued or is treated as having accrued.

[patrickq1]

in 1993 when i asked them to commence their action etc, i am not sure if i aknowledged the debt ,if i did - it runs again and expires twelve years later (six years for other contractual non-mortgage debts) . When they wrote to me recently, i have not responded to it, or in any way acknowledged it as referring to me,if i did it means it runs again, and like all debts, it will simply keep running with each acknowledgement. This is why from what i have gathered (and should be a warning to others) shortly before the expiry of a limitation period, you get a postcard through your door asking you to ring a number and ask for whoever. You acknowledge the existence of the debt and revive the limitation period. It is the reason why Bailiffs, when they cannot recover the full costs simply ask you to sign a document to say 'they have visited' or to acknowledge they have have recovered certain items from you and so on. Acknowledge nothing, Once a debt becomes 'timed out' through limitation, it does not subsequently revive!

patrickq1

[Hippy-chick]

Patrick

 

You do not revive it merely by phoning. Acknowlegement needs to be in writing.

[patrickq1]

get to your bed lol i was meaning if you aknowledge over the phone the debt i thought or suspect that would count

[Hippy-chick]

LOL - I love a masterful man!

 

 

No, patrick - over the phone does not count - repeat after me the mantra:

 

"IN WRITING ONLY"