repo date 21/09/2009

[micko19]

Hi

I have a mortgage agreement with very nasty firm. In the special conditions it states that I must contemporaneously settle 3 unsecured loans with the release of funds.

I am one year into the mortgage and have discovered that none of the loans were mine. They must have pulled them of someone elses credit file by mistake.

I have appointment with CAB friday and have been constantly under threat of repo since being more than one month in arrears. I believe it will come very soon.

 

So i am looking for straws to cling to...

Could I argue that the loan was void because i did not have the authority to sign up to repaying someone elses loans..

 

Also this paying off of unsecured loans was insisted on .... I think to stop them having to do a CCA REGULATED bit for the extra unrestricted use credit...

 

any help hugely appreciated

[Bona]

Ok have you issued a SAR thats the first step

 

Bona

[jansus]

was this a re-mortgage? did you have unsecured loans at the time?

 

Dont quite understand how your funds could be used in this way?

[micko19]

yes issued sar last week but am worried house could be gone before i receive. Thinking about using surfaceagents brill cpr34 stuff when they file..this may buy me some time....

 

micko

[micko19]

was this a re-mortgage? did you have unsecured loans at the time?

 

Dont quite understand how your funds could be used in this way?

 

I had unsecured stuff but it was all under the control of payplan

When the IFA asked me I told him this..

Then when i seen the offer i sent him an email query as i did not recognise the loans he said don,t worry just sign up and whatever is left you can keep..I have these emails on record..

 

I originally asked for 5000 extra funds after the remortgage ...you know with christmas and stuff....by the time my GE money had added all their charges i only got £700 extra...

 

In the special conditions the loans were listed like this

Tesco(12786548)

Northern rock(45552390)

Sainsbury(89774321)

 

and i can tell you 100%... none of them belong to us. Originally i thought that they might belong to my stepdaughter as she stayed with us when on outs with her hubby. ..ie might have come up on my credit file..but no i can confirm none of them are ours or any relation of ours

 

thanks for looking

 

mick

[jansus]

The company can not take re-possession unless they have been to court. Has that happened yet?

 

The most important thing is that while you are waiting for the information keep paying as much as you can on the Monthly payments as the court will take that into account.

[micko19]

Ok have you issued a Subject Access Request thats the first step

 

Bona

 

yes last week....

 

There is a lot of emphasis about the Special Conditions both on the signed deeds and the signed offer ...

 

Also don't mean to diverge too much but read stuff by taffyr midweek and you ...amazing stuff..I am also a redstone victim....I tried to pm you about taffyr just to see if he was alive and well but your box was full....

 

micko

[jansus]

Also have you contacted the original IFA to ask them to relase all their records as you may need them for court case - I assume you can SAR them as well?

[jansus]

yes last week....

 

There is a lot of emphasis about the Special Conditions both on the signed deeds and the signed offer ...

 

Also don't mean to diverge too much but read stuff by taffyr midweek and you ...amazing stuff..I am also a redstone victim....I tried to pm you about taffyr just to see if he was alive and well but your box was full....

 

micko

 

 

try a pm to see if supersleuth will look at your thread.

[micko19]

The company can not take re-possession unless they have been to court. Has that happened yet?

 

The most important thing is that while you are waiting for the information keep paying as much as you can on the Monthly payments as the court will take that into account.

 

thing is i am presently unemployed I am confident of getting some work soon but have nothing at moment..I have an excellant 24year wok history as self employed...and never missed a day during last recession.

 

I have applied for benefits and still waiting for the money after 8 weeks since applied...

 

thanks micko

[jansus]

ok - not sure when the new help kicks in with interest payments - but chase the benefits office and explain your house is at risk - Ell-enn can help with any legal forms when it gets that far. Have you contacted the lender to explain your current position with regards to payments?

[micko19]

Also have you contacted the original IFA to ask them to relase all their records as you may need them for court case - I assume you can Subject Access Request them as well?

 

good point.... first money i get next week i will SAR IFA

 

I really feel i was missold a subprime mortgage as i had no ccj nothing really bad when i applied i was told verbally the monthly payment would be 1500 by the time i signed up it was 1680 it was 100 more than i was paying to Northern rock and ge before the consolidation so it was pan to the fire and i needed to stop the repo GE had at the time which they didnt cease until the day of full settlement on the new remortgage...

[jansus]

I was sort of asking a question there as I am not sure if you can SAR an IFA - I am sure someone will let us know.

 

You have a few main objectives - first find out what help you can get with your MP

secondly investigate what happened to the monies you borrowed - where did the monies go?

 

find out if you were given the correct advice by your IFA.

 

Also the lender has obligtions to you under the new protocol during your time of unemployment. But you must also "play ball" by letting them know in writing your full current situation and ask for their assistance. But keep it in writing and keep records of every call and letter in a file.

 

Have you had any letters about court hearings at all?

[micko19]

I was sort of asking a question there as I am not sure if you can Subject Access Request an IFA - I am sure someone will let us know.

 

You have a few main objectives - first find out what help you can get with your MP

secondly investigate what happened to the monies you borrowed - where did the monies go?

 

find out if you were given the correct advice by your IFA.

 

Also the lender has obligtions to you under the new protocol during your time of unemployment. But you must also "play ball" by letting them know in writing your full current situation and ask for their assistance. But keep it in writing and keep records of every call and letter in a file.

 

Have you had any letters about court hearings at all?

 

again thank you i am posting my cab interview letter to them on monday..

thank you

[micko19]

try a pm to see if supersleuth will look at your thread.

thank you will do asap

 

thanks

 

micko

[supersleuth]

Hi Janus/Micko

 

Re the query relating to a SAR to the IFA - under the data protection act you can SAR any Data Controller. Virtually all private companies who control your data will be a datacontroller so generally you can SAR all private companies who hold data on you. In this case, the IFA most definitely is a data controller and should be SAR'd.

 

Also, Micko, the email you referred to in your early posts is extremely strong evidence print off loads of copies - don't loose it.

 

Micko

 

Have you found out whose loans you paid off? I'd SAR tesco/sainsbury/northern rock to establish how those loans came to be on your agreement such that you paid them but don't tell them the objective of your letter.

 

You write to can ask for copies of the actual agreements that you paid. But when you write to them be absolutely careful not to write anything that may be construed as you acknowledging that you were liable to pay the loans. Write the letter as a query e.g. you are writing because it has become apparent that you paid off these loans, that you don't recognise or remember having taken out the loans and therefore would like copies of the loan agreements and also (then, the SAR bit) that you would like all other information that they hold on you etc.

 

With respect to any hearings that may be imminent - you must attend any and all hearings that are listed (especially if the bank tell you that it's been "cancelled"). When a bank tells you a hearing is "cancelled" it is never "cancelled" in terms that lay people understand the word cancelled.

 

Go the to hearing and tell the judge that there are some serious discrepancies with the account. There are two possible grounds on which you can ask for the adjournment:

 

FIRST GROUND

Tell the judge that the account is wrong and that you do not acknowledge the arrears figure that they assert due to the fact that you did not receive the advance that the bank had contracted to provide and in fact, the bank has used your money to pay off a stranger's debt.

 

Tell the judge that you have taken steps to ascertain the evidence/information and in view of the serious discrepancies, you would like the court to adjourn until the two weeks after the SAR dates. Eg. say the SAR date on which you should receive the infomation is 1 March, you want to adjourn until 14 March.

 

SECOND (possible) GROUND

Also remember that the banks must now seek alternatives to repossession and they must give evidence to the court that they have taken steps to avoid repossession. If the bank has done nothing to assist you or avoid the litigation, that is another ground on which you can assert your request for the adjournment. Which is, that the bank need the time to see if this matter can be settled without litigating in order that the bank can comply with its legal duty to avoid litigation.

 

 

 

In the meantime, also write to the bank and tell them that you do not agree their figures because the IFA did not correct the mortgage offer to reflect that the loans in the Special Conditions were not your loans and therefore you did not receive the advance (of mortgage money) which means that the bank have not "performed" its part of the contract. Consequently, the figures on the account are incorrect and accordingly, the arrears they are claiming is also incorrect. Also state that when the corrections to the account have been made, it will show that in fact, you are not in arrears (remember micko, I suggest this because of the limited informaiton you have given and assuming that I have correctly understood your position thus, only write this if it is true and accurate).

 

 

Question: when you did this remortgage, did you have a solicitor acting for you? If you did have a solicitor - who chose the solicitor? was it you or the IFA who chose the solicitor?

 

Also, if you had a solicitor - did you tell the solicitor about the error of these loans appearing on the loan agreement?

 

Did your IFA disclose to you the amount of commission he would receive for the deal - and/or did you pay him any money for his services?

 

On the very limited information you have given, it seems that you may have a claim against your IFA as he seems to have acted against your interests - doubling your monthly commitments was not in your interests and therefore he/she may have fallen foul of the FSA rules on "best advise". Check out the FSA website for the rules on IFA's. Also, the IFA was negligent in his advise to you to sign a document without following up on your telling him that the loans were not yours (maybe they were his!!!..tounge in cheek joke).

 

You also may have many defences under the CCA because this was a loan paying off other loans - ask the CAB to look at the loan agreement and advise you as to whether or not the agreement is CCA compliant.

 

As for the Special Conditions that you say the bank keep asserting to you - what are they? What is the Special Conditions are they asserting.

 

To conclude, At this stage, your main objectives must be (1) to acquire and amass all the documents and information that you can; and (2) prepare yourself to defend against repossession at any hearings that are listed. You must tell the court that you have a defence and that you intend to defend and tell the court that you need time to prepare your defence.

 

 

You've got your work cut out on this one, but once you get all the information together it will become more clear as to how to fight it. Good luck.

 

Finally Micko, I'm not a solicitor so the guidance I've given here is telling you how I would approach the situtation.

[micko19]

Hi Janus/Micko

 

Re the query relating to a Subject Access Request to the IFA - under the data protection act you can Subject Access Request any Data Controller. Virtually all private companies who control your data will be a datacontroller so generally you can Subject Access Request all private companies who hold data on you. In this case, the IFA most definitely is a data controller and should be Subject Access Request'd.

 

Also, Micko, the email you referred to in your early posts is extremely strong evidence print off loads of copies - don't loose it.

 

Micko

 

Have you found out whose loans you paid off? I'd Subject Access Request tesco/sainsbury/northern rock to establish how those loans came to be on your agreement such that you paid them but don't tell them the objective of your letter.

 

You write to can ask for copies of the actual agreements that you paid. But when you write to them be absolutely careful not to write anything that may be construed as you acknowledging that you were liable to pay the loans. Write the letter as a query e.g. you are writing because it has become apparent that you paid off these loans, that you don't recognise or remember having taken out the loans and therefore would like copies of the loan agreements and also (then, the Subject Access Request bit) that you would like all other information that they hold on you etc.

 

With respect to any hearings that may be imminent - you must attend any and all hearings that are listed (especially if the bank tell you that it's been "cancelled"). When a bank tells you a hearing is "cancelled" it is never "cancelled" in terms that lay people understand the word cancelled.

 

Go the to hearing and tell the judge that there are some serious discrepancies with the account. There are two possible grounds on which you can ask for the adjournment:

 

FIRST GROUND

Tell the judge that the account is wrong and that you do not acknowledge the arrears figure that they assert due to the fact that you did not receive the advance that the bank had contracted to provide and in fact, the bank has used your money to pay off a stranger's debt.

 

Tell the judge that you have taken steps to ascertain the evidence/information and in view of the serious discrepancies, you would like the court to adjourn until the two weeks after the Subject Access Request dates. Eg. say the Subject Access Request date on which you should receive the infomation is 1 March, you want to adjourn until 14 March.

 

SECOND (possible) GROUND

Also remember that the banks must now seek alternatives to repossession and they must give evidence to the court that they have taken steps to avoid repossession. If the bank has done nothing to assist you or avoid the litigation, that is another ground on which you can assert your request for the adjournment. Which is, that the bank need the time to see if this matter can be settled without litigating in order that the bank can comply with its legal duty to avoid litigation.

 

 

 

In the meantime, also write to the bank and tell them that you do not agree their figures because the IFA did not correct the mortgage offer to reflect that the loans in the Special Conditions were not your loans and therefore you did not receive the advance (of mortgage money) which means that the bank have not "performed" its part of the contract. Consequently, the figures on the account are incorrect and accordingly, the arrears they are claiming is also incorrect. Also state that when the corrections to the account have been made, it will show that in fact, you are not in arrears (remember micko, I suggest this because of the limited informaiton you have given and assuming that I have correctly understood your position thus, only write this if it is true and accurate).

 

 

Question: when you did this remortgage, did you have a solicitor acting for you? If you did have a solicitor - who chose the solicitor? was it you or the IFA who chose the solicitor?

 

Also, if you had a solicitor - did you tell the solicitor about the error of these loans appearing on the loan agreement?

 

Did your IFA disclose to you the amount of commission he would receive for the deal - and/or did you pay him any money for his services?

 

On the very limited information you have given, it seems that you may have a claim against your IFA as he seems to have acted against your interests - doubling your monthly commitments was not in your interests and therefore he/she may have fallen foul of the FSA rules on "best advise". Check out the FSA website for the rules on IFA's. Also, the IFA was negligent in his advise to you to sign a document without following up on your telling him that the loans were not yours (maybe they were his!!!..tounge in cheek joke).

 

You also may have many defences under the CCA because this was a loan paying off other loans - ask the CAB to look at the loan agreement and advise you as to whether or not the agreement is CCA compliant.

 

As for the Special Conditions that you say the bank keep asserting to you - what are they? What is the Special Conditions are they asserting.

 

To conclude, At this stage, your main objectives must be (1) to acquire and amass all the documents and information that you can; and (2) prepare yourself to defend against repossession at any hearings that are listed. You must tell the court that you have a defence and that you intend to defend and tell the court that you need time to prepare your defence.

 

 

You've got your work cut out on this one, but once you get all the information together it will become more clear as to how to fight it. Good luck.

 

Finally Micko, I'm not a solicitor so the guidance I've given here is telling you how I would approach the situtation.

 

 

many thanks for that...

sorry for not coming back sooner as the phone company cut my internet off on sunday. I should be back up and running wed..Have borrowed my nephews.

 

First of all i should apologise as I don't believe i clarified things correcty before. The special conditions stated that I pay off 3 unsecured loans contemporaneously with the release of funds ie lender gives me left over funds I pay off loans..

 

my email to the ifa queried the loans as i did not recognise them. He said ignore them and just keep whatever is left over.

 

Only £700 after ge had robbed me blind on their settlement figures. So no unsecured loans paid off and £700 cash for us...... since well and truly blown.

The ifa sorted out country wide as the conveyancer/solicitor.

 

The ifa got 3,500 for the deal which is clearly stated on the mortgage offer...

ERC £17,500 for 3 years ????

 

I will print loads of copies of the emails thank you.

 

THe new loan payment was £80 per month more than what i paid for the same loans unconsolidated ...

 

the loan refinanced two secured loans with GE ONE WAS CCA the other was outside cca but legally should have been CCA IT WAS A CLEAR SECTION 18 BREACH..could not prove it at the time because ge refused to provide a copy of the agreement under 2x SAR. eventually got it with a court order under section 15(2) DPA. THANKS TO GREAT HELP FROM THIS SITE

 

MANY THANKS HOPING YOU WILL READ

 

CHEERS

 

MICK

[supersleuth]

Hi Micko,

 

It has occurred to me that you may find it more profitable to seek the recovery of the £17K ERC - you could also query the settlement figures on the two secured loans.

 

See this link for some discussion points on the topic

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/174886-kensington-mortgages-2.html

 

Also, with respect to "Countrywide" being your "solicitor" - I don't think Countrywide are solicitors. They are either the "countrywide" estate agents in the UK or they could be "Countrywide" that are (or were) a major US securitisation company. Find out the name of the person who acted for you and check with the Law Society to see if they were a solicitor. Seems to me that you did not receive any legal independent legal advice as that 'solicitor' was probably for the lender to in any case, which is common.

 

Back to the ERC issue. If you do the leg work on the legality of the ERC payment (which I believe may be an unlawful charge), you could use potentially use that law in two ways. Firstly, you could approach the old secured lenders to recover the ERC's on the grounds that you were not contractually required to pay those charges because the ERC was unlawfully charged and/or

 

secondly, because "countrywide" solicitors were acting for you - they had a duty to both you and the new lender to ensure YOUR/the lender's money was disbursed lawfully. Therefore, it may be possible to make a legal argument before the court in a repossession defence that the payment of the ERC £17K was unlawfully demanded and paid and therefore, you did not receive the full advance that was due to you under the mortgage contract. Remember, you had NO control over the money because the lender insisted on the mortgage monies being given to those companies. Therefore, that part of the advance was a restricted loan and they controlled where your money went and how it was to be used.

 

Ask the CAB person about the law on the ERCs and check out with the CAB whether the early settlement figures for the two secured loans were calculated according to law.

 

Good luck

[supersleuth]

Hi Micky,

 

One further thought - you can ask the Countrywide solicitors for your file. It is your right to have the file as you have paid them their legal fees. You don't have to do an SAR and you don't have to pay them any further fees or charges for them to send you your file. You just have to write a formal request that they send you your file.

[micko19]

Hi Micky,

 

One further thought - you can ask the Countrywide solicitors for your file. It is your right to have the file as you have paid them their legal fees. You don't have to do an Subject Access Request and you don't have to pay them any further fees or charges for them to send you your file. You just have to write a formal request that they send you your file.

 

Thanks again

 

Already done this,, only thing i found was the copy of the mortgage offer they had was unsigned, also found that the copy Redstones sent to me was unsigned....

 

The aspect of the special conditions asking me to pay off unsecured loans is an avoidance of anti avoidance(Section 18 CCA) and a very poor one. If you read Francis Bennions website he completely covers this with respect to top up loans. It was parliaments intention that as many loans as possible benefit from the rigorous application of CCA RULES. Francis states that when a lender gives borrower money on condition to pay off loans this does not constitute "Restricted Use Credit". Francis covered this form of avoidance.

 

The bottom line is any amount of funds over and above the refinancing element means your whole loan is a multiple agreement even though the largest part is exempt the whole loan is entitled to the documentation required by the CCA.

Read more about Redstone(SPV) and how they change interest and loan term when they feel like it. FSA regulation invites abuses and con tricks and the CCA does not i.e. that is why Redstone artificially remove their CCA obligations in this way..

 

As I see it.... i have a strong case to argue that the loan was improperly documented and would do even if the loans did belong to me...

However the fact that they dont,.. would further indicate that I signed under the advice of an IFA,.. a contract of conditions which are tied to the mortgage deeds which i did not have the authority to sign as it is impossible to pay someone elses loans.....

 

As it transpires one of the loans redeemed in the deal 41000 was also unenforceable and voidable due again to section 18, hidden commissions and missold PPI. The loans were settled by mistake as GE Money continually refused to comply with the DPA SAR's refusing to produce the agreements required to declare unenforceability and forcing us out of the agreements through reposession.

 

Sorry to bore you all with the ramblings of a one time compulsive borrower and his relationship with several compulsive law breaking lenders.

 

cheers mick

[supersleuth]

Hi Micko

 

Very interesting that you say that your Mortgage Agreement was unsigned. That is one of the arguments that I have against my mortgage company. This issue is governed by section 2 of the Law of Property (Miscellaneous Provisions) 1989 which essentially states that a mortgage loan agreement must be EXPRESSLY AGREED BY BOTH PARTIES AND SIGNED BY BOTH PARTIES.

 

I have case law that states that when the mandatory formal requirements of section 2 are not met, the contract is VOID. That is, not just unenforceable but void.

 

I have a trial listed for hearing on this legal argument (and other legal arguments) in April.

 

 

Have also looked into the CCA issue myself and will also, as you suggest, look into the Frances Bennions website. But in the meantime, would recommend you read Wilson v First County Trust (Court of Appeal case).

You can find the case (and loads of others) on British and Irish Legal Information Institute In that case the lady not only got her security back she also got back every penny that she paid under the contract including the capital sum that she borrowed!!

 

The cases that I've read regarding restricted loans does not come to the same conclusion as Bennions so I'll double check it before making any further comment on this issue.

 

Hope the s.2 argument will help you too...

Supersleuth

[micko19]

Hi Micko

 

Very interesting that you say that your Mortgage Agreement was unsigned. That is one of the arguments that I have against my mortgage company. This issue is governed by section 2 of the Law of Property (Miscellaneous Provisions) 1989 which essentially states that a mortgage loan agreement must be EXPRESSLY AGREED BY BOTH PARTIES AND SIGNED BY BOTH PARTIES.

 

I have case law that states that when the mandatory formal requirements of section 2 are not met, the contract is VOID. That is, not just unenforceable but void.

 

I have a trial listed for hearing on this legal argument (and other legal arguments) in April.

 

 

Have also looked into the CCA issue myself and will also, as you suggest, look into the Frances Bennions website. But in the meantime, would recommend you read Wilson v First County Trust (Court of Appeal case).

You can find the case (and loads of others) on British and Irish Legal Information Institute In that case the lady not only got her security back she also got back every penny that she paid under the contract including the capital sum that she borrowed!!

 

The cases that I've read regarding restricted loans does not come to the same conclusion as Bennions so I'll double check it before making any further comment on this issue.

 

Hope the s.2 argument will help you too...

Supersleuth

 

respect

 

In my case there was an offer and deeds,,, i signed both but believe the offer was only signed by me. The deeds give specific mention to my obligations in fulfilling the special conditions....

 

S.2 sounds very interesting

 

according to bennion no one can say how the court will go.... but his arguments are very convincing and he did write the act for parliament.

Current climate means it could loosen the wallets of many a nervous Lender just thinking about the costs of defending such an action.

 

New laxative for the constipated greedy basket sub prime lender SECTION 18 CCA..

 

It is quite ironic that they are almost flagging section 18 up for attention by using such silly special conditions to try and avoid...??/

 

cheers

 

mick

[supersleuth]

Hi Micko,

 

Thanks for the tip on the Bennion web-site. Excellent resource. I have made a legal argument (that has never been litigated) regarding the interpretation and construction of CCA s.8. Section 8 is currently interpreted very simply as "under 25K" within the act and "over 25K" outside the act. I have made a CCA argument in my case that my (purported) mortgage is regulated under the act even though it is over £25K. When you read s.8 there are three sub-sections. The simplistic interpretation that has been applied only concerns s.8(b), but if you read that section as a whole, then my argument is that there are some mortgages that are regulated under the CCA even though the mortgage is over £25K (i.e. mortgages that do not fall within the CCA s.16 exemption) . I am going to see if I can send Bennion my legal argument to get his opinion on it. Will let you know what happens.

 

With respect to the mortgage contract and the mortgage deed: here's the essesence of the argument.

 

There are two fundamental documents that create a mortgage, first there is the mortgage contract and second there is the deed. At law the mortgage contract is a "simple" contract and the deed is a "specialty" contract.

 

When you sign the mortgage contract (i.e. the document you refer to as the "offer") you are signing to say that they will give you a sum of money and that in return, you will sign a mortgage deed against your property until the money is paid back. The mortgage contract is therefore, a contract that is a: "disposition in land" as per s.2 of the LPA 1989 (because the contract provides that you will "dispose" to them a security interest in your land). You are contracting that you WILL sign the deed and it is the deed alone that conveys the security interest in your property.

 

When you sign the deed, the deed is: the actual conveyance of the security interest you agreed to grant under the mortgage contract. The mortgage contract then "merges" with the mortgage deed (under the "doctrine of merger").

 

The formal requirements of the LPA 1989 section 2 is not applicable to the deed - it is only applicable to the mortgage contract (i.e. the document that you refer to as the offer).

 

Thus, my legal argument is: If the mortgage contract is not validly executed in accordance with the mandatory formal requirement of s.2, then the mortgage deed contains a VOID mortgage contract, the terms of which are not enforceable at law. Thus, the lender is attempting to enforce contractual terms that were merged in the deed which Parliament has declared as unenforceable at law. Therefore, the lender has no valid contractual terms that can be enforced under the deed and the court cannot enforce those terms because Parliament has declared them VOID.

 

The genealogy of s.2 goes back to the Statute of Frauds 1677. It is not new law, it's been around for centuries and s.2 is the mordern day re-enactment of that 1677 law.

 

The mortgage deed is merely the document that conveys the security interest. The mortgage deed itself does not give any contractual rights other than the contractual rights that result from the mortgage contract that has merged into the deed. It is the merging of the mortgage contract into the deed that makes the mortgage deed the "specialty" contract.

 

Moreover, under a contract, both the lender and the borrowers have duties and obligations under the contract. The lenders claim to have "rights, powers and benefits" under the contract (but lenders never ever mention any of their contractual obligations). Under contract law, both parties have to sign to agree to be bound by the terms and accept that they will perform and take their respective obligations and benefits.

 

If the lender has not signed to be bound to perform any obligations under the contract, then strictly speaking he has not signed to accept the benefits under the contract either! The lender has not signed the mortgage contract (under which it could claim the contractual rights) nor has the lender signed the deed.

 

Have to say that I am not a qualified solicitor, but I do have law degrees and have done some serious legal research into this topic. For example Fisher and Lightfoot is a seminal and authoratative text on the Law of Mortgages and McGarry & Wade is a seminal and authoratiative text on the Law of Property.

 

If the law is faithfully applied, the s.2 argument should prevail however, I am aware of the fact that some judges and most lawyers do not faithfully apply the law. The judge, when choosing between a joe-soap litigant in person and a powerful banker with his so-called "respectable" lawyers, the practical reality is, that the judge will just usually will rubberstamp what the powerful lenders want. It's quicker, easier and less work for them and the Judge knows that the chances are that the joe-soap will not even know how to appeal and will just flake away whereas the banker would appeal. Thus, it's more likely than not, that a litigant-inperson will only prevail at an appeal hearing. So if you really want to prevail, it's wise to clue yourself up on the appeals process too.

 

I am also aware of one Deputy District Judge who sits on repossession hearings (and no doubt gives repossession) when that DDJ is also a solicitor in private practice acting for the lenders!!! Serious conflict of interests and that particular Judge should never sit on repossession cases at all. But hey ho, it seems that for us mere mortals, in the exact words of that particular DDJ, we should just get "thrown out on the street"!!

 

So whilst there is an overriding principle of the "rule of law" it has become apparent to me that we also have to consider that we are dealing with mere people who happen to be Judges and who have their own private agendas (see e.g. the DDJ above) who may also have their own personal agendas, snobberies/prejudices/false presumptions etc., against defendants. Therefore, when going to court, it really is a luck of the draw as to whether you get an independent, impartial and objective Judge that will faithfully apply the law.

 

Nonetheless, the s.2 argument (like the Bennion argument) is very powerful. Therefore, you could have two powerful lines to attack the lawfulness of your contracts. Both the s.2 against themortgage itself and the CCA against the unlawful disbursement of the funds to the other loans.

 

Let me know how it pans out for you.

Supersleuth

[micko19]

Hi Micko,

 

Thanks for the tip on the Bennion web-site. Excellent resource. I have made a legal argument (that has never been litigated) regarding the interpretation and construction of CCA s.8. Section 8 is currently interpreted very simply as "under 25K" within the act and "over 25K" outside the act. I have made a CCA argument in my case that my (purported) mortgage is regulated under the act even though it is over £25K. When you read s.8 there are three sub-sections. The simplistic interpretation that has been applied only concerns s.8(b), but if you read that section as a whole, then my argument is that there are some mortgages that are regulated under the CCA even though the mortgage is over £25K (i.e. mortgages that do not fall within the CCA s.16 exemption) . I am going to see if I can send Bennion my legal argument to get his opinion on it. Will let you know what happens.

 

With respect to the mortgage contract and the mortgage deed: here's the essesence of the argument.

 

There are two fundamental documents that create a mortgage, first there is the mortgage contract and second there is the deed. At law the mortgage contract is a "simple" contract and the deed is a "specialty" contract.

 

When you sign the mortgage contract (i.e. the document you refer to as the "offer") you are signing to say that they will give you a sum of money and that in return, you will sign a mortgage deed against your property until the money is paid back. The mortgage contract is therefore, a contract that is a: "disposition in land" as per s.2 of the LPA 1989 (because the contract provides that you will "dispose" to them a security interest in your land). You are contracting that you WILL sign the deed and it is the deed alone that conveys the security interest in your property.

 

When you sign the deed, the deed is: the actual conveyance of the security interest you agreed to grant under the mortgage contract. The mortgage contract then "merges" with the mortgage deed (under the "doctrine of merger").

 

The formal requirements of the LPA 1989 section 2 is not applicable to the deed - it is only applicable to the mortgage contract (i.e. the document that you refer to as the offer).

 

Thus, my legal argument is: If the mortgage contract is not validly executed in accordance with the mandatory formal requirement of s.2, then the mortgage deed contains a VOID mortgage contract, the terms of which are not enforceable at law. Thus, the lender is attempting to enforce contractual terms that were merged in the deed which Parliament has declared as unenforceable at law. Therefore, the lender has no valid contractual terms that can be enforced under the deed and the court cannot enforce those terms because Parliament has declared them VOID.

 

The genealogy of s.2 goes back to the Statute of Frauds 1677. It is not new law, it's been around for centuries and s.2 is the mordern day re-enactment of that 1677 law.

 

The mortgage deed is merely the document that conveys the security interest. The mortgage deed itself does not give any contractual rights other than the contractual rights that result from the mortgage contract that has merged into the deed. It is the merging of the mortgage contract into the deed that makes the mortgage deed the "specialty" contract.

 

Moreover, under a contract, both the lender and the borrowers have duties and obligations under the contract. The lenders claim to have "rights, powers and benefits" under the contract (but lenders never ever mention any of their contractual obligations). Under contract law, both parties have to sign to agree to be bound by the terms and accept that they will perform and take their respective obligations and benefits.

 

If the lender has not signed to be bound to perform any obligations under the contract, then strictly speaking he has not signed to accept the benefits under the contract either! The lender has not signed the mortgage contract (under which it could claim the contractual rights) nor has the lender signed the deed.

 

Have to say that I am not a qualified solicitor, but I do have law degrees and have done some serious legal research into this topic. For example Fisher and Lightfoot is a seminal and authoratative text on the Law of Mortgages and McGarry & Wade is a seminal and authoratiative text on the Law of Property.

 

If the law is faithfully applied, the s.2 argument should prevail however, I am aware of the fact that some judges and most lawyers do not faithfully apply the law. The judge, when choosing between a joe-soap litigant in person and a powerful banker with his so-called "respectable" lawyers, the practical reality is, that the judge will just usually will rubberstamp what the powerful lenders want. It's quicker, easier and less work for them and the Judge knows that the chances are that the joe-soap will not even know how to appeal and will just flake away whereas the banker would appeal. Thus, it's more likely than not, that a litigant-inperson will only prevail at an appeal hearing. So if you really want to prevail, it's wise to clue yourself up on the appeals process too.

 

I am also aware of one Deputy District Judge who sits on repossession hearings (and no doubt gives repossession) when that DDJ is also a solicitor in private practice acting for the lenders!!! Serious conflict of interests and that particular Judge should never sit on repossession cases at all. But hey ho, it seems that for us mere mortals, in the exact words of that particular DDJ, we should just get "thrown out on the street"!!

 

So whilst there is an overriding principle of the "rule of law" it has become apparent to me that we also have to consider that we are dealing with mere people who happen to be Judges and who have their own private agendas (see e.g. the DDJ above) who may also have their own personal agendas, snobberies/prejudices/false presumptions etc., against defendants. Therefore, when going to court, it really is a luck of the draw as to whether you get an independent, impartial and objective Judge that will faithfully apply the law.

 

Nonetheless, the s.2 argument (like the Bennion argument) is very powerful. Therefore, you could have two powerful lines to attack the lawfulness of your contracts. Both the s.2 against themortgage itself and the CCA against the unlawful disbursement of the funds to the other loans.

 

Let me know how it pans out for you.

Supersleuth

 

many thanks again SS I will certainly promote the s2 argument in my case CAB are stiil trying to get leagal aid for me.

 

Francis Bennion is very old now well into his eighties and i have heard he answers very few emails..Also on his site you will have read about the john story case..Francis went to the courts in defence of john story and to try and get his case appealed. I think it is one of the biggest miscarriages of justice of our time. Check out ruinedbynatwest - Home here again you will discover judges of the type you are clearly well aware....John is very knowledgable nice guy and lives in france now he likes to get emails...

 

Also hope you don't think i am being over nosey but are the cases you are dealing with repossessions..

 

Also did you read taffyr stuff on these spv mortgage deals as i think the answer to why they don't sign the offer might be something to do with the 3 card trick they operate when the mortgage goes through the company changes from beacon to redstone...something to do with securitization...strange smoke and mirrors????

 

And good luck to you also keep the top tips coming....

 

:grin:

[supersleuth]

Hi Micko,

 

Thanks again for your web-site tips. Will look into it. I have emailed Mr Bennion and will let you know if he responds. TaffyR is excellent on the securitisation and also Janus has written some great stuff. They both are spot on. With respect to securitisations, I too have some relevant experience in securitisations as I have worked on some the transactions.

 

My case is a repossession case and thus, because of my knowledge on securitisations (and how the process shafts the borrowers), I also know that the company that purports to be the lender - is not the lender in fact and law and therefore does not have the legal standing to bring the action against me in the first place! That is why I know that Janus was right when she says in her posts that the lender is an SPV and not the lender that is named as the Claimant. All repossession claims should fail for this reason alone if the rule of law is reeally being applied. Hence, this again is another of my legal arguments that the Claimant does not have a cause in action against me because they sold the mortgage with "full title guarantee" two years before the claim was commenced!

 

Yes I'm really going to test whether there is a Rule of Law and whether there is Equality before the Law; or whether the court will just rubberstamp what the court's favoured "little darlings" want (i.e. the powerful banks).

 

With respect to choosing a solicitor (when you get legal aid), remember that most solicitors will have no idea about the securitisation legal issues and therefore, try to find and choose one that knows about securitisations which will be much better value for money.