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

[patrickq1]

So what, exactly, is frustration? A 1981 House of Lords case set out this explanation:

“Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance.”

And had the fall in the property market frustrated the development agreement? No, it had not because, according to Mr Justice Coulson:

• both parties had anticipated the possibility of a property market fall so that minimum prices would not be achieved;
  
• the agreement provided what should then happen by permitting the parties to renegotiate the schedule;
  
• there was therefore no reason for the law to bring the contract to an end; there was no injustice because if the parties could not agree new prices they could be fixed by an expert under the dispute resolution machinery;
  
• while a “gloomy forecast” two years before marketing the properties entitled the housebuilder to attempt to renegotiate the schedule of minimum prices, it was simply a warning of what might happen and was not an event giving rise to frustration.
  

Which underlines the unanticipated nature of frustration, that deals with risks for which the contract had not provided. The effect of frustration, when it does occur, is radical, because it kills the contract, automatically bringing its further performance to an end. Which may, of course, explain its rarity value.

[patrickq1]

So what, exactly, is frustration? A 1981 House of Lords case set out this explanation:

“Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance.”

 

And had the fall in the property market frustrated the development agreement? No, it had not because, according to Mr Justice Coulson:

• both parties had anticipated the possibility of a property market fall so that minimum prices would not be achieved;
  
• the agreement provided what should then happen by permitting the parties to renegotiate the schedule;this has not taken place re negotiation ie arbritation could be argued that you are asking for this to take place
  
• there was therefore no reason for the law to bring the contract to an end; there was no injustice because if the parties could not agree new prices they could be fixed by an expert under the dispute resolution machinery; see above you are not being given any options they are appointing receivers without arbritation ?
  
• while a “gloomy forecast” two years before marketing the properties entitled the housebuilder to attempt to renegotiate the schedule of minimum prices, it was simply a warning of what might happen and was not an event giving rise to frustration.
  

Which underlines the unanticipated nature of frustration, that deals with risks for which the contract had not provided. The effect of frustration, when it does occur, is radical, because it kills the contract, automatically bringing its further performance to an end. Which may, of course, explain its rarity value.

[patrickq1]

a Cpr 31.16 will be written for you all to send in the next few days

patrickq1

[caro]

This article is a couple of years old but may help newbies.

 

Property investments are increasingly falling into LPA receivership ? what can investors expect? | Professional - print | Property Week

[patrickq1]

well found thanks C

patrickq1

[patrickq1]

Necessary to take undertake diligence

– establish control – identify issues

Establish occupation and basis NB Do

Not accept rent unless clear on the basis

on which it is offered.

1) Residents occupation rights cannot be

excluded due to the Protection From

Eviction Act.

2) Confi rm any planning consents and

building regulations approvals claimed

if not available then this will change the

security.

3) Health Safety and Environmental issues

could fall on receivers.

4) Insurance

• Facilitating Procedures

• Due Diligence – checking powers

– appreciating limits of powers

• Terms In Documentation i.e. person to

include power to borrow this should be

implied but it’s to make clear purpose.

Receiver should get comfort from

 

appointee. Get legal advice.

Situations preferring fi xed charge receiver

over administrator or admin receiver

• Capital Gains Tax – Not an expense and

therefore liability of borrower.

• Rates – Expense under administration but

fi xed charged receivers not liable

• Remuneration fi xed charged receivers

have 5% limit or ? as agreed

• Defi nition of admin receiver appointed over

substantially whole of assets of company

may be appointed by holder of debenture

or debenture is secured by a charge.

Admin receivers only over companies

not individuals. Also can be over fl oating

charge which fi xed charge receivers

cannot stop.

1) Concern of only Asset Company and

floating charge pre 15th September

2003 (Enterprise Act). No known case

of fixed charged receiver having been

found to be Administrative Receiver.

2) If there is a chance that a fixed

charge receivership has become an

administrative receivership

A) If a debenture or separate fixed

charge then the appointment is under

the fixed charge

B) Appointment document makes clear

the appointment as a fixed charged

receiver only.

• Check validity of appointment and

power to get delivery of documentation.

Dissolution of companies from

administration rather than liquidation,

which would require consent of crown.

• Interaction with Directors

Director’s powers frozen over charged asset

Free to deal with non charged assets i.e.

apply for planning permission

Land Registry Issues

Issues on jointly owned property (two or

more individuals)

Statement of borrowers of joint beneficial

ownership

Get lender to transfer as mortgagee not in

possession.

Removal of unilateral notices.

With unilateral notices transfers mortgagee

would over ride. May need removal by

agreement or application to court for

removal.

Goods left on premises may be subject to

Tort (Interference with Goods) Act 1977

[patrickq1]

LPA Receivers - an efficient means for a lender to enforce against defaulting creditors - DMH Stallard  (Solicitors) - London, Gatwick, Brighton

[patrickq1]

http://www.nytimes.com/2009/03/11/business/economy/11leonhardt.html?_r=1&ref=business

[Meerkat One]

Hi All

 

I would challenge Chelsea. Certainly SAR them immediately and question charges, arrears, etc. Inform Allsopps that you are in dispute with Chelsea and until this is resolved then you do not recognise their appointment. In the meantime continue to manage the properties and make mortage payments etc.

 

Allsopps should have informed you they had been appointed? They should have sent you a letter/deed of appointment by Chelsea. This is very important. It is also important to know who authorised the lpa and who signed the letter/deed. SAR the lpa receiver also.

 

The information will allow you to know what has been going on previously.

 

Regards

Meerkat One

[patrickq1]

diddled your mailbox is full

[diddled]

Thanks Patrick, will clear it out

[marley 1]

hello everyone just wanted to update WS have now sold one of my houses and have the other two empty ones up for sale they are taking everything of me i know for a fact if ME had left me to deal with my original problem i would not be in the situation im now in I would see them in court tomorrow if i had the money which they have made sure i havnt im seriously thinking of getting in touch with martin lewis of GMTV although it would be embarrasing airing my private buisness it would be worth it to shame them i wonder how they will defend their actions against a widow with three children whos worked so hard just to keep a roof over her kids heads which is now under threat due to their incompetence ME and WS must be so bloody proud of themselves cant wait to shame ME as well keep strong everyone some good got to come out of this x

[Bullhunter]

Sorry to hear that Marley - I spoke with a representative at ME in a semi professional basis and she had to deal with WS on a regular basis. She told me that they were woefully under staffed and not at all ready for the amount of properties they ended up with. She also said that she managed to get some properties away from WS because she knew she could work with the borrower and save the properties better than WS.

[patrickq1]

who appointed WS

you need to find out once and for all DID WS receive a commission for their appointment to act as agent

has it been explained in writing that WS are acting as your agent

has it been explained WS are the agent for MX

these are important questions

if MX are telling you that WS are your agent then you have not had or given them consent as the POWER OF ATORNEY is about as much use as a bog roll scuse the language

Marley it may be possible to serve an injuntion to suspend any actions until such time as they respond to a request under the civil procedure rules of engagement ie cpr 31.14 and 16... on WS and use MX as co defendant, until such time as you receive the documentation thats needed in this ..will seek help on here as it is urgent

patrickq1

[patrickq1]

i think Marley you need to go and see a proffessional independant chartered surveyer and ask can they evaluate and recomend what actions need to be instigated and install them for a fee and ask them to take over the running of these other two properties, so the injunction against WS will have to stand even though from what i can remember will only be temporaraly unless you can convince the judge to stay the injuction so this is where you need the other chartered surveyer and he can help with his written advice to show the judge that the actions of WS have been absolutely detremental to your business andhas been a major contributing factor in your demise and have contributed to your losses that have been compounded by the loss of tennants and the hike in the intrest rates from MX...

patrickq1

[patrickq1]

Caro may be able to give you some pointers by pm as to other chartered surveyers... or look on the ARLA site

[patrickq1]

http://www.arla.co.uk/professionaldevelopment/

[Meerkat One]

Hi Marley 1

I have sent you a PM

Regards

Meerkat One

[patrickq1]

my inbox is now open

patrickq1

[patrickq1]

for diddled

Mental capacity guidance for creditors

 

Content on this page ...

 

 

• Purpose of project
  
• Background to project
  
• Key issues
  
• Current status
  
• Contact
  

 

Back to top

Purpose of project

To develop guidance for creditors for identifying and dealing with prospective borrowers who are known to - or are reasonably expected to - lack mental capacity to make informed borrowing decisions.

Back to top

Background to project

Following the consultation on the irresponsible lending guidance, the OFT identified a need to explore further the issue of mental capacity as it impacts on borrowing decisions with a view to providing guidance for creditors on the subject. Creditors sought clarity on how they might identify and deal with prospective borrowers who were known to - or the creditor reasonably believed - lack mental capacity to make informed borrowing decisions. Until this project, little attention had been focused on dealing with such issues at the point of the lending decision; instead the emphasis has tended to be on dealing with contractual issues - that is, once the borrower has got into debt.

Back to top

Key issues

In brief, during the course of the project the OFT intends to explore the following:

1. The legal responsibilities creditors have in respect of mental capacity legislation and its overlap with equality and discrimination law, as well as how these responsibilities sit alongside those on consumer credit. Note this applies to the whole of the UK.
   
2. What 'triggers' might help creditors to assess whether or not a prospective borrower might reasonably be believed to lack mental capacity
   
3. What arrangements creditors need to make to optimise the likelihood that informed consent can be given by the customer, that is, what 'reasonable adjustments' should creditors make, bearing in mind the legislative requirements and responsibilities. Further, what are the implications of these 'adjustments' for prospective borrowers and creditors' processes.
   
4. The processes which might be put in place by a creditor should they reach the decision that, on balance, they do not believe the prospective borrower has the capacity to make a borrowing decision. As well as the possible processes which might be put in place to deal with a prospective borrower who discloses to the creditor that they have mental capacity issues.
   

The project plans to explore how creditors might deal with this issue across all sales channels - for example, face-to-face, telephone and online. However, the question of whether the guidance will be aimed at all sales channels will very much depend on the outcome of the consultation.

Back to top

Current status

We have held Initial 121 meetings with stakeholders during May and June. Also, we have held both a workshop for stakeholders from England and Wales as well as a workshop for stakeholders from Scotland, and both have provided us with useful information. We intend to set up a workshop for stakeholders in Northern Ireland during August. It is anticipated that a consultation document will be issued towards the end of the summer.

• Mental capacity workshop 6 July 2010 handout - England and Wales (pdf 63kb)
  
• Mental capacity workshop 13 -14 July 2010 handout - Scotland (pdf 56kb)
  

Back to top

Contact

If you would like to contribute please contact Debbie Samosa ([email protected] / 020 7211 8141) or Shukri Kemal ([email protected] / 020 7211 8683).

Consumer Credit Directive

The Consumer Credit Act and regulations are changing as a result of implementation of the Consumer Credit Directive (CCD). Regulations were laid on 30 March 2010 and are due to come into force on 1 February 2011. It will however be open to firms to comply before then if they choose. Details can be found on the Department for Business, Innovation and Skills (BIS) website.

Relevant OFT guidance will be updated in due course in the light of the CCD changes.

[diddled]

Thanks for that Patrick, I'm going to give Debbie Samosa a ring right now.

[patrickq1]

I think you also have something to tell them so good for you do not let them put you of with this,,

patrickq1

[diddled]

Spoke to the above, very nice lady, but it doesnt look like the consultation will help in my case.

 

To hopefully assist her I am providing her with a copy letter from the bank that demonstrates the attitude Banks take towards vulnerable mentally incapable customers. The letter in question came from a big chief who claimed that the subsequent mental incapacity of a borrower is irrelevant and that the bank relies on the terms of the contract. This letter also confirms that the bank doesnt apply to the Court of Protection, but continues to rely on the contractual provisions, and the powers contained therein.

[patrickq1]

yes they Banks would say this, they also had a duty to inform you of what i had put above, so the letter that the bank sent should go to the lady you spoke with and also any other letters you have sent and replies especially nasty and unhelpful ones..

Q. were you married at the time of the property deed transaction and did you have to sign any paperwork, because undue influence can play a very big part in this,

if you were married and knew nothing about the transaction but had to sign then this again comes under undue influence also were you and your husband advised to seek legal advice before the deed was assigned

patrickq1

[diddled]

Yes Patrick I was married at the time of the transaction, but I wasnt required to sign anything as the property was in my husband's sole name.