Mortgage Express appoint LPA Recievers Walker Singleton to scare tenants off!

[patrickq1]

yes it was a case recentley heard in court of an Agent who was instructed to hand back the title ? ive actually put it into one of these threads on this forum going back about four weeks ago lol so ime afraid no i will look ive an idea how to find it lol

back later

[patrickq1]

good for you persi you have nothing to lose after all what you find is they browbeat you so hard you feel its a lost cause ,well it isnt already the FSA and FOS OFT and even goverment know this is a cause that needs only one person to stand up bring it to the justices and more than likely (after all the promises from the mortgage companies to treat customers fairly )they are doing the excact opposite because they all know that this little bubble they have surrounding this power of attorney they create isnt what it seems , as i see it this i suspect is the weak link you more or less have had to sign this seperate document without legal representation and told not to worry we wont ever use it it is just a safeguard to protect both of you ? it has never been explained i am sure just what this peice of paper was just slipped into the bunch of documents you signed for in otherwords trickery has been used or say slight of hand ...

patrickq1

[patrickq1]

as landlords you are still responsible for the repayment of the deposits ?

considering this fact ,you have no funds available ,are the bank giving you any support ?

if not is it because the receiver and MX have blighted your account ?

if this is the case their may be a back door in asking the tennent to consider action for their deposits back this is just a thought if anyone knows could a judge force the receivers to hand over this cash ?

or it may be possible to bring forward the receiver as your witness (by a court order if neccessary) for them to explain why you are being denied funds ? can the judge order an injunction against the receiver , dont worry ime just thinking allowed ,

probably have to ask one of the legal bods on the forum these sort of questions

The landlord must protect the tenant's deposit in accordance with the requirements of the Act and he must do so within 14 days of receipt. If the landlord has failed to comply the tenant can apply to the court. If the court is satisfied that the landlord has not complied it must order the landlord to pay the tenant a sum of money equal to three times the amount of the deposit. In both cases the landlord failed to protect the deposit within 14 days of receipt but had done so by the time the matter came before the court.

The Court of Appeal ruled that the penalties under the Act only apply if the landlord has not complied with its obligations by the time of the court hearing. So a landlord who has not complied can easily remedy his breach by registering the deposit as soon as he is given notice by his tenant that he is not complying with his obligations, for example, in a letter before action. A landlord who is in default will still be at risk from a costs order in favour of the tenant who has had to embark upon litigation in order to get the landlord to comply.

The majority opinion of the Court of Appeal is neatly summarised by Rimer LJ who said: "the objective of the legislation is not the punishment of landlords but the achieving of proper protection of tenants' deposits".

[persecuted]

hi patrick, re your thoughts outloud above...my instant thought on the deposit situation is that its still the landlords problem. if your letting agent fails to hand over the deposit, and goes under, the liability is still on the LL to repay tenant so i would imagine same in this case. i guess the tenant would have no claim for it (unless they claimed from the LL) and we'd be told to go after the receivers (easier said than done!).

[persecuted]

Has anyone had experience of rents being collected by receivers but not passed to ME?

[patrickq1]

i expect everyone has had the experiance of the receiver not paying the rent monies over to MX seeing as you are not getting any information their is plenty of room for fraud being perpetrated by some receivers ,with this said you would have to issue a CPR 31.14 on both receiver and also MX then you can corrolate all the information and any discrepancies you can then bring it to the police and fsa under fraqud and bribery act ,

patrickq1

[persecuted]

thanks patrick. it hasnt happened to us yet but we are trying to figure if we should/can afford to keep paying our mortgage even with receivers in place.

[patrickq1]

just out of intrest what notice did you receive in in MX excecuting the POA over the property and sending it into receivership or any company ie chelsea etc

[persecuted]

a few weeks, but we made substantial payments during that time.

[persecuted]

Does anyone know what the proper procedure for selling the properties should be by the receivers?

[patrickq1]

Thursday 20 February 2003

 

Insolvency: the low-down on reform

Vernon Dennis and Alexander Fox discuss how insolvency legislation will be affected by the Enterprise Act 2002

Several issues relating to corporate insolvency reform are explored by the Enterprise Act 2002.

This huge piece of legislation, consisting of 281 sections and 26 schedules, also deals with such diverse areas as competition, fair trading, and consumer affairs.

The changes relating to corporate insolvency reform are likely to be introduced after April 2003.

These are:

- Abolition of Crown preference.

The preferential status of debts owed to the Inland Revenue and Customs & Excise is removed.

However, it should be noted that preferential creditors do not disappear entirely, with certain categories remaining (for example, employee claims and the Crown's subrogated rights in respect of salary and wages).

- A share of assets for unsecured creditors.

The abolition of Crown preference will not provide a complete windfall to floating chargeholders.

Instead, a prescribed amount (as yet to be determined) will be made available from floating charge realisations for unsecured creditors.

- The restriction of administrative receivership.

After the start of the Act, a floating chargeholder will only be able to appoint an administrative receiver in certain prescribed specialist areas (for example, capital markets) or pursuant to a loan contract and floating charge created before the start of section 250 of the Act.

- A revised administration procedure has been introduced, whereby an administrator may be appointed by court order or out of court by either a floating chargeholder or the company and/or its directors.

The Act provides for a single purpose for administration, which is intended to place greater emphasis on company rescue.

An administrator must perform its functions with the objective of: (a) rescuing the company as a going concern, or if the administrator thinks this is not reasonably practicable, or it is in the interests of the creditors as a whole; (b) achieving a better result for the company's creditors as a whole than would be likely if the company were first wound up, or if the administrator thinks neither (a) or (b) is reasonably practicable, © realising property to make a distribution to one or more secured or preferential creditors, without unnecessarily harming the interests of other creditors.

The process is speeded up, with a statutory duty placed on the administrator to perform his functions as quickly and efficiently as reasonably practicable.

As well as providing a quicker out-of-court route for appointment, proposals should be put to creditors within eight weeks and a creditors' meeting held within ten weeks of appointment.

The administration should proceed for a maximum of 12 months.

These time limits may be extended by creditor consent (for certain limited periods) or by court order.

It should be noted that the floating chargeholder will possess an effective veto over the choice of administrator and may still appoint in circumstances (out of court) even where the company is not insolvent, provided such power is contained in the charge documentation.

While appearing radical, the reforms perhaps do not signify the great shift in power from floating chargeholders that was first anticipated.

There are also issues relating to personal insolvency reform which are likely to be introduced after April 2004:

- Duration of bankruptcy.

In most cases, an individual will be discharged from bankruptcy no later than 12 months after commencement.

The official receiver may file a notice at court, effecting earlier discharge once his investigations are completed, or if thought unnecessary.

- Bankruptcy restriction orders.

To counteract the perceived liberalisation of bankruptcy regime, certain 'culpable' bankrupts whose conduct is such that some court sanction is thought appropriate will be subject to a new bankruptcy restriction regime.

The effect of a bankruptcy restriction order is to extend the restrictions of the bankruptcy for a period of between two and 15 years.

The procedure will be similar to Company Director's Disqualification Act proceedings and agreed undertakings may be given, replacing the need for a hearing.

- 'Sunset provision'.

To counter a perceived injustice, a late amendment to the Enterprise Act, dubbed the 'sunset provision', was introduced.

This provision provides that the trustee in bankruptcy must take steps to realise the bankrupt's interest in the principal residence of the bankrupt, bankrupt's spouse or former spouse within three years (calculated from the date of bankruptcy), otherwise it will cease to form part of the bankrupt's estate and automatically revert back to the bankrupt.

A further amendment provides that where the trustee in bankrupt's interest is below a certain prescribed value (as yet to be determined) proceedings will be dismissed.

During the Parliamentary debates, a figure of 5,000 was suggested, and it was made clear that proceedings should be dismissed if the return is only likely to cover professional fees.

- New fast-track individual voluntary arrangement (IVA) procedure.

To encourage greater debtor rehabilitation and a better return to creditors, a new procedure seeks to encourage bankrupts to enter IVAs post-bankruptcy.

The IVA will be run by the official receiver who will put the bankrupt's written proposal to the creditors, who will have the option of acceptance or rejection.

If accepted, the bankruptcy order will be annulled.

- Revised income payment order procedure.

Payments made by a bankrupt whose level of income exceeds that required for his reasonable needs and that of his family will continue after discharge, for a total of up to three years from commencement of the date of bankruptcy.

Income payment agreements can also be entered into, avoiding hearing.

- Bankruptcy restriction amendments.

The restrictions on bankrupts holding certain public offices have been liberalised in a further attempt to reduce the stigma of bankruptcy.

There is concern that liberalisation of the bankruptcy regime will encourage a rise in bankruptcy levels.

In the White Paper proceeding the Act, the government stated a belief that only 7% to 12% of all bankrupts were in any way culpable.

Consequently, the vast majority are likely to be released from bankruptcy, possibly within a period of six to eight weeks.

As the penalty of a bankruptcy restriction order will have greater impact on trade debtors rather than consumers, most bankrupts will be unconcerned with this measure.

Furthermore, a consumer may place little value on receiving an annulment of bankruptcy (following a fast-track IVA).

In the US, where there is a similar liberal regime, about 1.5 million individuals enter bankruptcy each year.

If this rate were followed in the UK, there would be a rise in bankruptcy orders from 25,000 to 300,000, the social and economic cost of which would be significant.

[patrickq1]

In a landmark ruling on 24 November 2010, the Supreme Court decision in the case of Royal Bank of Scotland plc v Wilson could affect thousands of repossession cases in Scotland.

Facts

The Wilsons granted standard securities over houses in Loanhead in favour of the Bank in 1991, and ran up debts which the Bank sought to recover. A court action for repossession was raised by the Bank in 1998.

The Bank did not serve a "calling-up notice", as it did not consider it was obliged to do so in this case, in line with the widely held understanding and application in practice of the provisions in the relevant Act concerning enforcement of standard securities (the Conveyancing and Feudal Reform (Scotland) Act 1970).

The Wilsons did not repay any of the sums sought by the Bank, relying on technical legal issues to argue that the Bank could not enforce the securities.

Supreme Court Analysis

The Supreme Court undertook a detailed examination of the 1970 Act (which it agreed was a "maze") and of section 19(1) in particular, which provides that a creditor "shall" serve a calling-up notice. However, in practice, it had not been treated as requiring a creditor to serve a calling-up notice in these circumstances, and "shall" had been read "in a permissive and not a mandatory sense".

The Court stated that a "striking feature" of the case was that the letter before action the Bank had sent in 1995 did not make any express reference to the standard security. Mr Wilson did not realise at the time that the Bank were indicating that they would take steps to enforce the security. The Bank did not contact Mrs Wilson before raising the court action.

Decision

The Court ruled that in a case falling within the scope of section 19(1) such as this, the creditor must serve a calling-up notice. That would ensure that all debtors were treated alike, and, in particular, that they were all given a two-month period in which to pay, that is specified in the calling-up notice.

[charlesGGG]

Hi All,

 

Aftet we sent the CPR Rules of engagement request for info, We got back some paperwork from Templeton's. BUT they have only sent invoices for minor works, no info relating to contracts with other third parties estate agents etc etc. No info on telephone or email messages between them and MX or other third parties. They refered to deed of appointmnet, but I have not seen any paperwork clearly marked DEED of APPOINTMENT. and also no sworn/signed statement from an account manager saying this is how much they collected (as per proper accounting standards).

 

What is the penalty (if any) that can be imposed on them, at the hearing for failing to supply all data.????

 

PS,

 

Does anyone know the correct term used, at law that gives a solicitor the authority to act for a client. I want them to produce this to validate their standing in the case...is it:-

 

Notice of authority to commence proceedings Or Demand for Declaration

[patrickq1]

THEN IN THIS CASE IT WILL REQUIRE COURT ACTION WITH IMMEDIATE EFFECT,YOU DONT HAVE TIME TO BE HANGING AROUND TEMPLETONS MUST BE FORCED INTO COURT ,ALSO SEE HERE IT IS NOT AVAILABLE IN ENGLAND YET ? BUT WILL BE VERY SOON PLUS YOU CAN USE PARTS OF THIS AS A BASIS FOR HALTING ALL FURTHER ACTIONS BY TEMP AND MX,AS I AM SURE THEY HAVE CLIENTS IN SCOTLAND ..

PATRICKQ1

Repossessing residential property in Scotland (including

commercial property containing residential units)

> A summary of the new rules and guidelines in force from 30 September 2010

This is a summary of the new rules, procedures and guidelines that require to be followed by creditors in Scotland

seeking to repossess property used to any extent for residential purposes. It will take time for the courts to develop

a consistent and coherent practice when dealing with such matters so, at least initially, practices will differ from

court to court.

1 Introduction

1.1

1.1.1 The Scottish Government has introduced new legislation, The Home Owner and Debtor Protection

(Scotland) Act 2010 (the Act), in response to the economic downturn, consequential rise in repossessions

and need to provide additional debtor protection where there is a risk of repossession of a family home.

The provisions of the Act relating to voluntary and hostile repossession proceedings came into force on 30

September 2010.

1.1.2 Those provisions are designed to give similar protection to that offered in England by the non-statutory

Pre-Action Protocol for Possession Claims based in Mortgage or Home Purchase Plan Arrears. The Act

goes beyond the pre-action protocol in England and cannot be avoided by creditors.

1.1.3 The provisions apply to residential property situated in Scotland and also commercial property where that

contains a residential element, for example a buy-to-let portolio or a public bar with landlord’s

accommodation.

1.2.1 The purpose of the Act is to ensure that:-

repossession proceedings are a last resort for creditors;

all repossession cases must call in court, except in cases of voluntary surrender (which require written

confirmation that the surrender was voluntary);

strict pre-action requirements must be complied with by creditors, requiring them to provide the debtor with

information, take reasonable steps to avoid repossessions occurring and refrain from taking repossession

proceedings in certain circumstances;

2

certain residents other than the debtor (entitled residents) can make representations to a court which is

considering a repossession application;

a debtor, entitled resident or creditor has an automatic right to seek recall of a default judgment;

representatives of recognised advice agencies, such as the Citizens Advice Bureau, can represent debtors and

entitled residents.

1.3.1 The Act applies to homes owned by private individuals and commercially-owned properties which are let

as residential homes or which include residential accommodation.

1.3.2 Creditors will require to demonstrate that debtors, whether private individuals or commercial entities,

have been given proper assistance to resolve a default before any action is taken to repossess a property

which is used to any extent for residential purposes.

2 New requirements for surrender of property used to any extent for residential purposes

2.1 A court action need not be raised if a private individual or commercial entity agrees in writing that the property in

issue can be repossessed.

2.2 Before a property can be voluntarily surrendered:-

the security subjects must be unoccupied; and

the debtor and other entitled residents must have in writing:-

certified that they do not occupy the security subjects and are not aware of the security subjects being

occupied by any other person;

consented to the exercise by the creditor of the creditor’s rights on default; and

certified that their consent is freely given and without coercion of any kind.

2.3 The entitled residents may be:-

the proprietor of the security subjects where the proprietor is not the debtor;

the non-entitled spouse of the debtor or the proprietor of security subjects which are, in whole or in part, a

matrimonial home;

a civil partner of the debtor or the proprietor of security subjects;

3

cohabitees in terms of section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981

(occupancy rights of cohabiting couples).

2.4 The security subjects must not be repossessed until the above is confirmed in writing. An application for

repossession will require to be made if the above cannot be obtained in writing.

3 Essential court test for repossession of residential property

3.1 A court may only grant a repossession application if it is satisfied that the prescribed pre-action requirements have

been complied with and that it is reasonable in the circumstances of the case to grant the application.

4 Five pre-action requirements which must be complied with by creditors

4.1

4.1.1 The creditor must, as soon as it is reasonably practicable to do so, provide the debtor with clear

information as possible about: -

the terms of the standard security;

There is no guidance on what precise information must be given about the terms of the standard security.

Information should be given about the main terms of the standard security. Those include:-

- details of the parties to the standard security, including details of the debtor who granted it, the

lender of which it is in favour and of any assignation of the standard security. The date of the

standard security and any assignation should be provided;

- the amount secured by the standard security, or if the amount is variable, that the security

secures all sums due or to become due by the debtor to the creditor;

- the property which is subject to the standard security;

- details of any conditions or deeds which are included in and form part of the standard security;

- that the creditor may be, or become, entitled to enforce the standard security and take

possession of or sell the property if the debtor does not take action to remedy a default.

- that the standard security is governed by and construed in accordance with Scottish law.

the amount due to the creditor, including any arrears and any charges in respect of late payment, broken

down to show:-

- the total amount of the arrears; and

- the total outstanding amount due including any charges already incurred.

4

the nature and the level of charges that may be incurred by virtue of the contract to which the security

relates if the default is not remedied (i.e. a summary of all contractual charges that may be incurred for

late payment)

any other obligation under the security in respect of which the defender is in default.

4.1.2 The charges are not to include any redemption charges, nor, where a standard security is involved,

expenses recoverable under standard condition 12 such as legal costs, asset management/estate agency

fees, repossession and conveyancing charges on default.

4.1.3 The creditor will require to provide evidence to the court that the above information was provided and the

date on which that was done.

4.1.4 A copy of all of the correspondence and documentation sent to the debtor with the information will

require to be lodged in court.

4.1.5 To ensure that clear information is provided, the creditor must adhere to the following guidelines:-

Creditors must ensure that the information provided to the debtor is clear, not misleading and easily

understandable. Standard correspondence should be written in plain English;

Creditors should have regard to any known difficulties which the debtor may have in reading and

understanding;

Creditors should also make an effort to ensure that information is communicated to the debtor in a

language he or she can readily understand;

It would be prudent to invite a debtor to arrange a telephone consultation or a meeting to discuss

any enquiry they may have.

4.1.6 To ensure that information is provided as soon as is reasonably practicable, the creditor must adhere to

the following guidelines:-

The information is to be provided to the debtor as soon as is reasonably practicable upon the debtor

entering into default.

The information should be communicated in writing and sent to the debtor as soon as they have

defaulted on a payment.

4.1.7 It will be important to be able to prove in court when a letter was sent to a debtor setting out all of the

prescribed information. It would be prudent to send that letter by recorded delivery post and to attempt a

telephone call to the debtor to confirm that that they had received the letter. It would also be sensible to

refer to the letter and to any attempted telephone call in any subsequent correspondence with the debtor.

5

4.2.1 The creditor must make reasonable efforts to agree with the debtor proposals for future payments under

the standard security and the fulfillment of any other obligation under the security in respect of which the

debtor is in default.

4.2.2 Contact should include written contact, although this need not solely be in writing. If creditors do not

receive any response from the debtor to letters, attempts to contact the debtor should be made by

telephone or email.

4.2.3 Creditors should record each attempt made to contact the debtor and detail the method used - for

example, letter, telephone or email.

4.2.4 Creditors should avoid undue pressure through excessive attempts to contact the debtor. They should not

harass the debtor nor exert any undue pressure on the debtor to agree to any particular proposal.

4.2.5 No attempt should be made to contact the debtor by telephone after 9pm or before 8am. Such attempts

should also have regard to the debtor’s circumstances, if known, such as a particular work pattern or

religious faith.

4.2.6 Any proposal made by the creditor to the debtor should be set out in such a way as to allow the debtor to

consider the proposal. The following rules and guidance require to be followed:-

The proposals should be clearly communicated in writing with sufficient detail. Where the proposal

is for arrangements relating to repayment, the creditor should ensure that the proposal details:-

how much is to be paid and the frequency of payments;

when the arrangement will commence; and

the duration of the agreement.

The debtor should be allowed a reasonable time to consider any proposal made by the creditor:-

The creditor should have regard to the debtor’s known circumstances and give the debtor

sufficient time to consider and make a response or counter-proposal.

The creditor should notify the debtor of the length of time the debtor has to consider the

proposal.

Proposals by either the debtor or creditor may include:-

to change the date of regular payment of amounts due under the loan contract;

6

to change the method by which payments due under the security are made (for example, from

direct debit to standing order);

to extend the repayment period;

to change the type of repayment under the security agreement (for example, from capital and

interest to interest only);

to defer payment of interest due under the security agreement;

to capitalise the arrears due under the security.

4.2.7 The creditor must notify the debtor within a reasonable time of any decision taken by the creditor to

accept or reject a proposal made by the debtor.

4.2.8 A creditor must deal with every case on its own terms. A blanket policy should not be adopted. What is

reasonable will depend on the circumstances of each case. A creditor must consider the affordability of

any proposal to the debtor, taking into account, where known to the creditor, the debtor’s personal and

financial circumstances.

4.2.9 A creditor can accept a proposal by the debtor over the telephone immediately if that is considered

reasonable.

4.2.10 If a proposal made by a debtor is rejected, the creditor must provide the debtor with clear reasons, in

writing, within 10 working days, as to why the creditor was unable to accept the proposal.

4.2.11 If an agreement is made with a debtor and the debtor fails to comply with any condition of it for the first

time, the creditor must comply with the following rules before an application can be made to the court to

repossess the property:-

The creditor must give the debtor notice in writing of the decision to make an application to the

court to repossess the property and of the ground of the proposed application;

The creditor must not make an application before the expiry of 15 working days (beginning with

the date on which the debtor is deemed to have received the notice of the intention to make an

application to the court) nor if the default is remedied within that period.

The 15-day period begins when the debtor can be expected to have actually received the notice,

bearing in mind that Saturdays, Sundays and local bank holidays are not working days.

7

4.3.1 The creditor must refrain from making an application to the court if the debtor is taking steps likely to

result, within a reasonable period, in payment of arrears or principal sum and to comply with any other

obligation for which the debtor is in default.

4.3.2 Those steps will include providing documentary evidence to the creditor:-

of any claim made to an insurer under a mortgage payment protection policy, which has a

reasonable expectation of eligibility for payment.

An application for possession by the creditor will be competent if the debtor is unable to meet

the shortfall not covered by the mortgage payment protection policy.

of an application made to a support scheme run by Scottish Ministers or the United Kingdom

Government and that the debtor has a reasonable expectation of being eligible for support.

The creditor need only consider applications to schemes in which they are participating.

An application for possession by the creditor will be competent if the debtor is unable to meet

the shortfall not covered by the mortgage support scheme, or if the mortgage support

application is not decided within a reasonable time.

of the property being actively marketed for sale. The documentary evidence provided by the debtor

should demonstrate that:-

the property is being marketed at an appropriate price;

professional advice was sought when setting the price, including that of a solicitor, estate agent

or chartered surveyor. A copy of the Home Report and other documents required by sections 98,

99(1) and 101(2) of the Housing (Scotland) Act 2006 must be provided where appropriate.

4.3.3 The creditor has the right to make a court application, despite the debtor demonstrating that the property

is being marketed for sale, if:-

the debtor rejects a reasonable offer to purchase the property;

the property does not sell within a reasonable time;

the debtor refuses to provide the creditor with details of any agent acting for him or her in relation

to the marketing or sale of the property or to authorise any such agent to communicate with the

creditor, in order to enable the creditor to ascertain whether the debtor has rejected reasonable

offers or that the property has not sold within a reasonable time; and

8

upon examination of the documentary evidence provided by the debtor, the creditor is not satisfied

that any steps can be taken which may result in repayment or the default being remedied within a

reasonable time.

4.4.1 The creditor must provide the debtor with information about sources of advice and assistance in relation

to management of debt.

4.4.2 Where the security is regulated, that information must include any relevant information sheet produced

by the regulatory body. It must also include details of a citizens bureau or other advice organisation as

well as details of the housing department of the local authority in whose area the secured property is

situated.

4.5.1 The creditor must encourage the debtor to contact the local authority in whose area the property is

situated.

5 Matters which court must assess when determining if a repossession application is reasonable in the

circumstances

5.1 A court must have regard to the following matters when considering a repossession application:-

The nature of and the reasons for the default;

The ability of the debtor to fulfill, within a reasonable time, the obligations under the standard security;

Any action taken by the creditor to assist the debtor to fulfill those obligations;

Where appropriate, participation by the debtor in a Debt Payment Programme approved under Part 1 of the

Debt Arrangement and Attachment (Scotland) Act 2002; and

The ability of the debtor and any other person residing at the security subjects to secure reasonable

alternative accommodation.

5.2 A creditor should take all of these matters into account when assessing any proposal made by a debtor or an

entitled resident.

6 Transitional arrangements

6.1 Where an application has been made to court before 30 September 2010 the new rules and guidance do not apply.

9

15 Atholl Crescent Edinburgh EH3 8HA 2 Blythswood Square Glasgow G2 4AD

T 0131 228 3777 F 0131 228 3878 T 0141 248 4672 F 0141 221 9270 http://www.brodies.com

6.2 If a calling-up notice or notice of default has been served before 30 September 2010 but a court application has

not been made, the provisions of the Act will apply and the procedure for court applications introduced by the Act

must be followed.

6.3 If the default occurred before 30 September 2010, a creditor must provide the debtor the prescribed pre-action

information as soon as reasonably practicable.

7 Guarantor notification unaffected by Act

7.1 The Act does not impose any new notification requirements on creditors in respect of guarantors.

7.2 A creditor should, of course, ensure that any required contractual notice is given to a guarantor if the debtor acts

in default.

7.3 A creditor is not to put any undue pressure on a debtor following a default. It is therefore prudent that a creditor

assesses whether any early notification of a debtor’s default given to a guarantor (i.e. notice given prior to any

contractual notice) might result in undue pressure being put on a debtor. Such early notice should be avoided in

that event.

8 Instructing solicitors

8.1 A creditor will require to provide its solicitors with full details of how the pre-action requirements were complied

with, including a copy of all correspondence and documentation sent to, and received from, a debtor and any

entitled resident, and why the repossession action is reasonable in all of the circumstances.

[patrickq1]

you need to go and see a solicitor its in your own intrest to meet with the solicitor to explain your breif to him and he will have a form which he will ask you to sign giving him the authority to act on your behalf, like i say it is in your own intrest

patrickq1

also look at the above new ruling under scottish law it has not set a precedent but it also does in a way make it extremely difficult for any company to argue against ,and it is in the buy to let market that MX would have extreme difficulty argueing against it in any court of law in the intrest of fairness

patrickq1

[patrickq1]

any claim you have made under cpr rules must be complied with if not here is some of the penalties

The judgment in Mortgage Corporation v Sandoes (1996) The Times 27 December CA has found its way into the practice directions.

Calderbank interest and costs

Whether s olicitors act for the claimant or the defendant, they will be able to make an offer to settle before proceedings are begun and in relation to both money and non-money claims.

Include a provision for the payment of the claimant's costs if the offer is made before proceedings.

What is most interesting is the effect of a claimant's offer to settle.

If at the trial the defendant fails to beat the offer, the court will be empowered to order interest on the award at up to 10% above base rate and, on top of that, order indemnity costs plus the higher rate of interest on those costs.

But there is a snag.

The court will exercise its powers unless it considers it unjust to do so.

The checklist of matters for the court to consider includes the 'information available to the parties at the time when the offer was made' and 'the conduct of the parties with regard to the giving or refusing to give information'

[patrickq1]

eve diddled

[patrickq1]

Parts 31-40 Web VersionDownloadable PDF version

(opens new window)Part 31 - Disclosure and Inspection of DocumentsPractice Direction 31A - Disclosure and InspectionPractice Direction 31B - Disclosure of Electronic DocumentsPart 32 - EvidencePractice Direction 32Part 33 - Miscellaneous Rules about EvidencePractice Direction 33 - Civil Evidence Act

[maverick18]

hi chillinlong ,

 

sent you a couple of pm's just wondered if you had received them. Could you let me know asap if you have. cheers

[patrickq1]

• United Kingdom
  
• 
  
• November 26 2010
  

A recent High Court decision appears to have extended the duty of care which a valuer engaged by a lender owes to a buy-to-let investor. As a result any investor landlord who was given poor valuation advice when purchasing property may now be able to bring a claim against the valuer for the losses suffered.

In Scullion v Bank of Scotland plc (t/a Colleys) [2010] EWHC 2253 (Ch) the claimant Mr Scullion decided to enter the buy-to-let market to supplement his pension. He bought a new build flat in Cobham, Surrey in 2002 with a view to let it initially to cover his costs and in due course to sell it on for a capital profit. Colleys were engaged by Mr Scullion's lender, Mortgages plc, to value the flat, but, as is usually the case, at Mr Scullion's expense.

Colleys advised that the market value of the flat was £353,000 and the rental value £2000 per month. Mr Scullion had some difficulty letting the flat following completion of the purchase in October 2002. He discovered that it could not be let for anything like the amount predicted by Colleys. It was only in April 2003 that Mr Scullion managed to let the flat and then for a rent of only £1,050 per month. Later on in 2006 he sold the flat for just £260,000 leaving a shortfall of some £60,000 on his mortgage.

Mr Scullion sued Colleys in respect of the inaccurate capital and rental valuations. He succeeded and the court held that a careful and competent valuer would have valued the property at between £270,000 and £330,000 and the monthly rental at between £1,100 and £1,350.

The principle that a valuer instructed by a lender owes a duty of care to a prospective residential purchaser was already established in Smith v Bush [1990] 1 AC 831. In the Scullion case Colleys argued that as Mr Scullion's purchase was a commercial investment no such duty was owed. This argument was rejected by the court. The judge did not consider it correct to characterise Mr Scullion as a commercial purchaser based on the facts before him.

As in Smith v Bush the property involved was a small residential flat; might the court take a different approach if a large scale development and professional property investors were involved? In any case the judge gave permission to appeal on this point.

The outcome of any appeal will be awaited with interest.

[patrickq1]

high how is everyone

[diddled]

Fine thanks Patrick, Im raring to go.

 

Hows you?

[tonyhuws]

hi patrickq1 still here at the moment still no news form MX or Templeton (did not realy expect any )but live in hope am applying for the info and sending £10 as a start.

[chillinlong]

Just sitting here wondering the best way to hit them so hard.

 

Read an article today about Bank of England want their money back by January 2011, therefore they are now pushing all the banks who they lent to recover monies ASAP. This will include MX and Northern Rock and explains why the recievers and lenders are hell bent on selling rather than working with us to resolve. Also RBS will be in the picture with this angle.

 

Can we legally argue a portfolio to remove a LPA Reciever as it is in surplus and has been longer than 12 months?

 

MX say we could have but before the LPA was appointed now cant they they are involved. WS still hell bent on ruining everything at the moment.

[persecuted]

hi everyone. chillinlong we sound like in the same boat. mx nice cop, receivers bad cop and we're no further forward. Gosh i hope we can resolve this swiftly as mine is waining!