My Last Hope

[alarmed]

When I was around the age of 19 I married and bought a house, when the marriage broke down we handed the keys back to Bradford and Bingley.

11 years later they started chasing the outstanding debt, my ex-wife I think paid £7,000 but when I offered the same amount I was turned down.

 

It is now around 12 years later and because we could not agree on a settlement figure they have added interest for the last 21 years.

So an amount that started of at £22,000 has grown to £80,000 and is still growing (having read some other posts, can they still be charging me interest) , I have in the past before it went to court offered various amounts which were all turned down.

The court case was in Leeds around trip of 300 miles and i could not get time off work, I asked for it to be moved closer but it never was, and stupidly did nothing.

The case was decided against me.

They from time to time ( about every 6 months) they ask for me to go to the court in to prove my financial position, which I do then I here no more.

After the last court visit, they sent me a letter stating they wanted an order put on the house i now own, so that i could niether remortgage or sell without thier say so.

 

 

Can you tell me what my options ( apart from the find some rope and a stout tree, which believe me is getting closer all the time) are as my wife and myself are worried sick, and this is driving a vast wedge between us.

 

 

If I have to go bankrupt, will I lose the house I have now, putting my wife and 4 children on the street.

I have 50,000 equity and very little savings.

[Goldlady]

Holy hell, what a mess. But please don't go looking for that stout tree just yet.

 

Did you mean that they refused your offer of payment many years ago? Do you know why?

 

And do they have a County Court Judgement against you? I presume that's what they have but just wanted to be sure.

 

I am not entirely sure how to proceed with this, but there has to be a way out. How long ago was the court case in Leeds?

 

Hopefully we will get some more knowledgeable people to help, but please do not despair.

[PriorityOne]

You say they "wanted" to put a charge on the house.... have they got one ? As has already been asked....do you have a CCJ ? If so, how much was the CCJ for ? Adding interest for 21 years sounds extremely iffy.... .... CCJ or not.

 

You say that your wife made a payment after 11 years.... how long after that did you start making payments ? What exactly are these 6-monthly court visits all about ?.... where you have to prove this and that ?

 

Apologies for all the questions, but don't even think of going bankrupt for these greedy barstewards !

[alarmed]

Hi

 

They dismissed my offers on many occasions, i went as far as offering 9,000.

the only reason i got was that it was'nt enough.

 

i do have a ccj for 77,000 the court case was around 3 years ago and the interest is still being added to the amount when i last heard it was 80,576

 

They have no charge on my house yet, but after my last visit to court, i got a letter from the new company acting for bradford and bingley which is optima legal saying that unless i agree to pay 50.00 a month and voluntary allow a charge to my house, they would take me back to court, and have it put on and i would pay the costs.

 

I have today recieved a letter from Optima, saying that unless they hear from me in 7 days they will proceed with legal action.

 

I have sent, a copy is below

 

My first wife made a payment around 11 years after we handed the keys back, i as yet have payed nothing.

 

The 6 monthly visits are as follows:

 

I get a man at my front door with a summons to see the clerk to the justice, when i go i have to fill in a form detailing my financial details indepth,, earnings , savings, house, cars and so on, even down to the electrical equipment in the house.

 

ask all the questions you like.

 

Dear Sir/Madam 22/05/08

Without prejudice

Thank you for your letter concerning the above account.

Please supply me with a full breakdown of the balance claimed under the above account.

In order for me to deal with this matters I should be grateful if you would supply me with answers to the following points:

 

• when did the arrears begin?
  
• when was the last payment made on the account?
  
• when was any possession order given?
  
• when was the house sold?
  
• what valuations were made on the property before the sale?
  
• what costs were involved in maintaining the property during the period between the repossession and the sale?
  
• how was the house marketed and sold and at what price?
  
• what costs were involved in selling the property?
  
• has a claim been made against the indemnity insurance and how much was recovered?
  
• how has interest been calculated from the start of the arrears?
  
• A breakdown of any solicitors', estate agents' fees or court costs that have been added on.
  

Please could you also supply me with a copy of all correspondence relating to this matter from the beginning.

I look forward to receiving your reply as soon as possible.

Yours faithfully

[Goldlady]

Do you actually know what the shortfall was?

[alarmed]

Just over 22,000

[Goldlady]

So how did the ex manage to get away with7k? Or are they pursuing her as well?

[alarmed]

I hav'nt seen her for many years, as i moved away from that area, but as far as i know she's in the clear

[Goldlady]

Are you sure it was that much? I don't mean to doubt you but if it was 21 years ago that is one hell of a lot of money.

[PriorityOne]

It sounds as if the ex made a F&F some years ago and B&B then decided to pursue you for the rest, but whether the statute-barred element comes into it or not needs to be answered first.... because although your ex may have re-acknowledged the debt within the 12 years for mortgage shortfalls, you don't appear to have. This may mean that they don't have a leg to stand on, despite all that's gone on.

 

I think the first thing you need to do here is to send a PM to either pt2537 (Paul) or tomterm8 to see if you can get a set aside to this CCJ.

 

Once we have an answer/opinion to this question, we can take it from there.

 

[PriorityOne]

I've just PM'd both of them for you.....

[pt2537]

Hi there

 

im afraid that mortgages are really well outside my comfort zone

 

however, all is not lost,

 

i would suggest that you get in touch with these people

 

Home its the Bar Council Pro Bono department which basically offers free legal advice to successful applicatants. they assess your case and if its considered as meeting the criteria then you will get a barrister to help you with the legal issues free of charge

 

its worth making an application to the pro bono department as the worst the can say is you are not eligible

 

AFAIK its not means tested either

[PriorityOne]

Thanks to Paul for looking in...

 

Alarmed, you quoted a letter in post #4.... this needs to go off as part of a legal request; namely, a Subject Access Request (by rec. delivery), otherwise they will probably ignore you. Take the Without Prejudice off it as well. The only people this phrase protects is the very people we're usually at war with, in my opinion. The S.A.R - (Subject Access Request) costs £10... and there is a template on this site that you can adapt for your needs. If you don't know where to find it, please shout.

 

I realise money is probably very tight for you right now..... but under the circumsances, a separate SAR probably needs to go to both B&B and Optima... (£10 each, both by rec. delivery). With all the underhand tactics that have gone on over the years, it would be interesting to see how both parties may decide to justify their actions when info. is requested as part of such a request. You also need the full picture of what's gone on.

 

If I were you.... I wouldn't be afraid of going to court at all. If you fight this (and it seems that you have no choice)... all their dirty washing will have to come out in court. Up until now, they've had a huge judgement by default... and are probably hoping for a similar easy success with a property charge.

 

I'm not a legal bod on these forums, but I have gone through a repossession and settled a shortfall debt many years ago. There was no CCJ in my case, which made things a lot easier..... so we need to find out if yours can be set aside first. There is also the statute-barred angle to look at from all those years ago.

 

Either way though, both SAR requests need to go off soon as possible. You also need to ask for documentary evidence of the CCJ as part of this request and, documentary evidence allowing them to continue adding interest after the CCJ....

 

I will try and PM some others for you... as this one needs a collective on it.

 

[car2403]

It sounds as if the ex made a F&F some years ago and B&B then decided to pursue you for the rest, but whether the statute-barred element comes into it or not needs to be answered first.... because although your ex may have re-acknowledged the debt within the 12 years for mortgage shortfalls, you don't appear to have. This may mean that they don't have a leg to stand on, despite all that's gone on.

 

I think the first thing you need to do here is to send a PM to either pt2537 (Paul) or tomterm8 to see if you can get a set aside to this CCJ.

 

Once we have an answer/opinion to this question, we can take it from there.

 

 

Sounds to me like the debt was acknowledged when the CCJ was entered - especially as he's asked for it to be transferred to his local court, which implies the claim was acknowledged. As the CCJ was entered, I can only assume that it wasn't defended. (Default Judgment)

 

So, lets take this one step at a time.

 

Putting the debt to one side (I know, we wish!) for a moment, lets look at the CCJ. To get it set aside, one of the following must apply; (CPR Part

13)

 

Cases where the court must set aside judgment entered under Part 12

 

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because –

 

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

 

© the whole of the claim was satisfied before judgment was entered.

 

So, questions that need to be answered are;

 

Was the claim form received?

 

It would seem so, but can you confirm this?

 

Was the claim acknowledged and/or defended?

 

Again, seems not, but can you confirm?

 

The debt clearly wasn't satisfied before a CCJ was entered.

 

Cases where the court may set aside or vary judgment entered under Part 12

 

13.3 (1) In any other case, the court may set aside (GL) or vary a judgment entered under Part 12 if –

 

(a) the defendant has a real prospect of successfully defending the claim; or

 

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

 

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

So;

Is there a prospect of successfully defending the claim?

Is there a reason the CCJ should be set aside or varied?

Should the defendant be allowed to defend the claim?

 

and - if any of these apply - has he made an application promptly to have the CCJ set aside?

 

IMHO, prospect of defending the claim is probably quite poor. There clearly was a mortgage in place and the court probably isn't going to wipe this debt out. Having said that, you may be able to successfully defend part of the claim, as I'm thinking along these lines;

• Reclaiming penalty charges applied to the account;
  
• Challenging their right to continue applying interest post judgment, unless there's a clause in the original contract that allows for PJI (post judgment interest) to be applied to the account, or the fact the Court order allows it to be applied, (which is unlikely) they can't apply PJI. Also, if they do apply PJI, they shouldn't apply it to the Judgment debt, meaning that you can't "owe" £88k - what you could owe is the original outstanding balance of the CCJ, (Judgment debt) and then the PJI (Judgment interest) whatever that amounts to. If they've lumped the Judgment debt and Judgment interest together, they will have a problem enforcing it as they will have applied contractual compound interest on the whole balance, not just the Judgement debt. This is quite confusing - and, to be totally honest, is way out of my comfort zone too - but there is more background on PJI on Paul Walton's thread, which is also similar to your circumstances, if you care to read it; http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html
  

I really do think that you are better off getting proper legal advice on this - there is so much at risk (seemingly over £50k in interest) and it would be worth getting professional advice. You should especially do that before going for bankruptcy! In fact, you can't declare yourself bankrupt without doing it, to my knowledge.

 

There is also the option of an IVA, which would probably allow you to keep your home assets, but again you need professional advice before even considering it.

[jansus]

try this on google interesting info

Independent Banking Advisory Service

 

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Mortgage Shortfall Debt Claims Survey

[PriorityOne]

 

I'm just thinking out loud Chris....

 

Is there a prospect of successfully defending the claim? If penalty charges were included in the CCJ amount, then it's worth a shot.

Is there a reason the CCJ should be set aside or varied? For the reason above.

Should the defendant be allowed to defend the claim? As above.

 

and - if any of these apply - has he made an application promptly to have the CCJ set aside? Promptly... no.

 

 

 

IMHO, prospect of defending the claim is probably quite poor. There clearly was a mortgage in place and the court probably isn't going to wipe this debt out. The mortgage shortfall was only £22K though and the ex has already paid a lump from this amount anyway. Having said that, you may be able to successfully defend part of the claim, as I'm thinking along these lines;

• Reclaiming penalty charges applied to the account; Agree...
  
• Challenging their right to continue applying interest post judgment, definitely !! unless there's a clause in the original contract that allows for PJI (post judgment interest) to be applied to the account, or the fact the Court order allows it to be applied, (which is unlikely) they can't apply PJI. Also, if they do apply PJI, they shouldn't apply it to the Judgment debt, meaning that you can't "owe" £88k - what you could owe is the original outstanding balance of the CCJ, which is some £50K higher than the shortfall though... because of applied interest/charges before Judgement (Judgment debt) and then the PJI (Judgment interest) whatever that amounts to. If they've lumped the Judgment debt and Judgment interest together, they will have a problem enforcing it as they will have applied contractual compound interest on the whole balance, not just the Judgement debt. Would this be apparent through a S.A.R - (Subject Access Request) ? This is quite confusing - and, to be totally honest, is way out of my comfort zone too - but there is more background on PJI on Paul Walton's thread, which is also similar to your circumstances, if you care to read it; http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html
  

I really do think that you are better off getting proper legal advice on this - there is so much at risk (seemingly over £50k in interest) and it would be worth getting professional advice. If the costs are not going to add to the problem, then I agree... You should especially do that before going for bankruptcy! In fact, you can't declare yourself bankrupt without doing it, to my knowledge.

 

There is also the option of an IVA, which would probably allow you to keep your home assets, but again you need professional advice before even considering it.

 

[pt2537]

I still think that you need a barrister on this case.

 

the Bar council is the governing body for all barristers, if you make an application to BC under their Pro Bono dept you will be allocated a barrister who has experience in that area of law

 

this is how a certain credit card debt eraser person managed to get his victory, he went to the Bar Probono department and they took on his case and we all know what happened

 

going alone is not an option in my opinion,

[pt2537]

BTW, i know a friend who went through the Pro bono dept and they successfully had their repossession stopped and were awarded costs,damages etc so it works

[tomterm8]

You need to go to a professional solicitor. Their original claim looks very dubious to me, because it appears a statute of limitations period might have been utterly ignored. In particular, there is a 6 years statute of limitation on interest, and their is a 12 years statute of limitation period after the original right of action acrued... your wife may have paid her money after that period passed.

 

This is not, however, an area that we can reasonably give advice on, online, because the consequences of getting it wrong are huge.

 

I do however think a qualified barister is highly likely to be able to put a case to set aside the judgement, because from what you have described it appears that there were certain procedural errors.

[rory32]

I have to agree with tomterm8 and pt2537, you do need to seek proper legal advice. The bar council is certainly a good option and it does sound as if you have a reasonable chance of a set aside. At the very least you should be able to massively reduce any amount outstanding.

[alarmed]

Ok first off, i have to say thanks to you all, at least i can see some light.

 

Right im going to make an application to the Bar Council Pro Bono department, to do this i need to get all the information that i can, so will need to send a Subject Access Request (by rec. delivery) along with my letter. PriorityOne thanks and can you point me in the right direction for a S.A.R template which i will send to both Bradford and Bingley and Optima Legal on recorded delivery.

 

I will then make an application to the Bar Council and try and find a solicitor to represent me.

 

How does that sound to you guys ?

[PriorityOne]

Sounds like you're a little more positive....

 

Ok... here we go. I've adapted the S.A.R - (Subject Access Request) to include some additionals. If you can afford to send them Special Delivery, please do.... because Optima have given you the 7 days and IMO, you need to let them know that you're going to have a go at challenging this now.

 

If you really cannot afford to post them in this way, then rec. delivery will be fine, providing you keep hold of the receipts and 'phone the number on the back to check that each item has been delivered (more reliable than checking with RM online). Due the the BH weekend, they won't be able to go until Tuesday anyway, which gives peeps on here enough time to add/delete/comment on the letter below. IMO, you need to contact the Bar Council before this info., comes back... don't wait around.

 

I do not have the HO address for Optima, but the B&B address is shown. Don't forget to include the £10 cheque/postal order for each one.

 

Bradford & Bingley plc

Group Legal Department - H18

PO Box 88

Croft Road

Crossflatts

West Yorkshire

BD16 2UA

 

Dear Sir/Madam,

 

Your Ref : xxxxxx

 

Data Protection Act 1998 - Subject Access Request

 

Please supply me with all of the personal data that you hold to which I am entitled under the Data Protection Act 1998.

 

In particular, I require a complete list of transactions and charges relating to my entire history with your organisation including, but not limited to, the following :

 

a). A full transcript of all transactions, including charges, fees, interest, repayments, payments and, both the original amount of the mortgage and all balances on the account since the mortgage was first taken out, up until today.

 

b). Full transcripts of all telephone conversations and any notes made in relation to telephone conversations by your company, or by any company who you claim to represent, or who is representing you.

 

c). Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention.

 

d). True copies of any Notice of Assignment and/or Default Notice that may have been sent to me, including documentary proof of delivery.

 

e).Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

f). Full details of any claim that was made on the Mortgage Indemnity Insurance.

 

g). Details of any collection charges added to the account since it was first opened; specifically, the date they were levied, the amounts, a detailed financial breakdown of how these charges were calculated, and what the charges covered.

 

h). Specific details of any fees/charges levied by any other company/agency in respect of this account and a detailed breakdown of these fees/charges, what each charge relates to and on what dates these fees/charges were levied.

 

i). A genuine copy of any Deed of Assignment, or other documentary evidence (equitable or absolute), either issued or received, that gave a third party company the legal authority to pursue this matter.

 

j). A genuine copy of any Fair Processing Notice, as required by the Data Protection Act 1998.

 

k). A complete list of third party agencies to whom you may have disclosed my personal data over the years, together with a summary of the nature of the information you have disclosed.

 

l). Documentary evidence of any County Court Judgement, including the balance upon Judgement and any documentation relating to the application of post-Judgement interest.

 

m). A copy of your Complaints Procedure.

 

n). Clarification of the date when any third party company acquired the alleged balance on this account, what organisation they acquired it from, their registered office, their company number (if any) and what legal title they had at the time that the alleged debt was assigned.

 

Under the Data Protection Act 1998, I require this information to be furnished within the next forty days. I enclose the statutory maximum fee of £10.

 

Yours faithfully,

 

[tomterm8]

Ok first off, i have to say thanks to you all, at least i can see some light.

 

Right im going to make an application to the Bar Council Pro Bono department, to do this i need to get all the information that i can, so will need to send a Subject Access Request (by rec. delivery) along with my letter. PriorityOne thanks and can you point me in the right direction for a S.A.R template which i will send to both Bradford and Bingley and Optima Legal on recorded delivery.

 

I will then make an application to the Bar Council and try and find a solicitor to represent me.

 

How does that sound to you guys ?

 

I would contact shelter, the national debt line and/or the citizens advice (ask for tbheir specialist debt team) as well...

 

But, basically, it sounds good to me.

[alarmed]

Thanks PriorityOne

 

Letters done and ready to go and i will contact the Bar Council asap, I do feel more positive now i can see how to fight this , it feels as if some company or other has been pushing me around all my adult life.

 

I will get them sent first thing Tuesday morning special delivery, and thanks for your help, i will keep you posted

[stanroyal]

Warning - I am a total non-expert - but I have heard recently that people have successfully challenged mortgage companies who have sold their homes on the cheap. Is all of the 22K shortfall legal - did they get the correct market value at the time for the property? You can research the market value of similar properties in your area and if they gave it away - the original 22K may be altered substantially (I think?).

 

Good luck to you.