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

[charlesGGG]

All the above is good stuff....will be adding this case law to the list.

 

Thanks...keep it coming, just what the doctor ordered as they say.

 

ps

"expressed written consent" any case law on this anyone..????????

[patrickq1]

In this example, express is an adjective and not a verb. Hearing it as a verb, the ear wants to modify the word to expressed, with a sense: the consent that has been expressed by someone or something. But this is not the correct use of the word in your example. Express written consent means: the consent that has been directly, firmly and explicitly stated. Another example: "He disobeyed my express orders."

 

Read more: http://wiki.answers.com/Q/Censorship_of_spoken_or_written_words_before_they_have_been_expressed_is_prior_restraint#ixzz167jAHjeY

[diddled]

Charles

 

Im still gathering my thoughts on your case before I put them all down on paper.

One thing that has occurred to me - BTL I believe are unregulated, yet there is not mention of BTL on either your mortgage deed or T&C. Does it say anywhere within your paperwork that the mortgage is regulated?

[charlesGGG]

What to do when tenants are scared..???

[diddled]

What do you mean? scared of what?

[chillinlong]

Hi Charles, my mortgage offer says BTL product but nothing on the deeds or T & Cs. Surely they can rely on this as a intention to give you BTL product?

Any thoughts?

 

Tenants scared from WS or Templetons, this is the hardest part. The Recievers must pay someone to write such a intimidating letter that the tenants cannot sleep once they see this and start fretting not knowing what to do. this is understandable when they tell the tenants landlord has not been paying the mortgage and you are not allowed to stay as we are gooing to sell etc. Only thing you caqn do is reassure them that they cannot be evicted with protection for them with thier tenancy agreement.

[patrickq1]

when your tennant is being threatened with eviction by templetons and other read this new ruling for eviction of tennents , give this to your tennents if you feel they are under threat and its beyond your control

http://wzeu.ask.com/r?t=p&d=mys&s=ads&c=a&l=dis&o=10170&sv=0a65290e&ip=d923e924&id=E10F8F13C58B411DA1BC5EBE534F9D33&q=Manchester+Council+v+Pinnock&p=1&qs=2873&ac=24&g=1baed3DHLX0pxU&en=gs&io=0&ep=&eo=&b=a001&bc=&br=&tp=d&ec=1&pt=JUDGMENT%20Manchester%20City%20Council%20(Respondent)%20v%20Pinnock%20(Appellant)&ex=&url=&u=http://www.supremecourt.gov.uk/docs/UKSC_2009_0180_Judgment.pdf

patrickq1

[patrickq1]

also as a landlord it might be worth a visit to shelter and explain what MX and others are doing to your properties and you feel they are going to evict your tennents see if they have any back up plans enough to cause a stink with politicians as shelter are up their and in the know

patrickq1

[diddled]

Charles

 

As your T&C say you must reside in the property, does it say anywhere within your paperwork that the mortgage is regulated?

[charlesGGG]

Hello Chilli,

 

It is the same with us the original offer letter, years ago, says buy-to-let, I believe (still trying to locate) and the lender verbally telling us this also. BUT what the solicitors have submitted, as a statement of case and what they are relying on supposedly, is the T&C and Deed and nowhere does it say buy to let.

 

The Paper work says Quote...... "you must NOT move out of the property"

 

AND in the letter of appointment from MX to Templeton it strangely says this;-

"the receivers acknowledge that they shall not take possession of the property (other than as agent of borrower) without the written instructions of the lender."

 

AND diddled,

So far I have not seen that term that the "mortgage is regulated" anywhere in paperwork at my disposal but it could be in their booklets and other such things.

 

AND patrick1

I will forward that info to tenant....although to be honest, I think the damage may have already been done.

 

Many thanks all

Edited November 26, 2010 by charlesGGG
spelling error

[patrickq1]

the Pinnock ruling is very very important and is not too late for your tennents

 

 

 

patrickq1

 

 

 

 

 

Landlords have warned human rights laws could undermine government plans to introduce fixed-term social tenancies.

 

The Residential Landlords Association has said landlords could struggle to evict tenants once their fixed-term is up because of a recent court ruling.

The government unveiled plans to introduce fixed-term tenancies for new social lets, which could last as little as two years, in a consultation paper this week.

But the RLA said the recent case of Manchester Council v Pinnock could make these difficult to implement.

In this case the Supreme Court ruled a court must rule on whether an eviction is ‘proportionate’ under the European Convention on Human Rights before it can go ahead.

Although the eviction was permitted, the decision has raised questions over how practical it is for councils to evict tenants. The RLA said at present the ruling only applies to local authorities, but it is ‘only a matter of time’ before a challenge seeks to extend it to housing associations and private landlords.

Richard Jones, a lawyer, and policy director at the RLA, said: ‘The government is going to face the same problem when it comes to implementing their new proposals for the new style social tenure.’

The body has written to deputy prime minister Nick Clegg and housing minister Grant Shapps voicing its concerns.

[charlesGGG]

patrickq1,

 

I have sent you a PM.

[charlesGGG]

We where told Bailliffs, will be visiting today, but strangely they did not show up....I hope those letters are beginning to sink into their thick heads.

[patrickq1]

have the baliffs obtained a warrant of execution if not why not, if the mortgage company are insisting this is not a buy to let then they need a court order ,if they are using the power of attorney then this is classed as an abuse of proccess ,and they must use the courts to evict , they cant have it both ways. so lock your door and refuse entry without a court order and you have a right of apeal and a stay of excecution ,

report them to the police if the balliffs try to smash the door in tresspass and damage to your property .

patrickq1

[charlesGGG]

Since the LPA/lawyers already have a possession order (to remove tresspasser.. ie my tenants) would not the letter my tenants got simply be a confirmation/warrant to evict.

 

And also the basis of all this, is that all parties believed the mortgage is a buy-to-let. It was only recently, as I started going through the T&C that the realisation that there is actually very little reference to buy-to-let in the bloody thing (they really are Banksters).

[diddled]

Charles, I thought there was no reference to BTL in your paperwork.

[charlesGGG]

Charles, I thought there was no reference to BTL in your paperwork.

 

Hello,

 

Yes Diddled, there is no reference to "buy to let" in the documents we have and also nothing in what they submitted to court, except the lawyers saying the LPA told them so.

 

I was making reference to the fact that years ago when we first took out the mortgage, I think the offer letter stated buy-to-let, But that is a guess because we don't have that paperwork anymore and they have not produced it either.

 

The issue is something triggered all of us to initially think it was a buy-to-let, BUT when you look now (in clear light of day) it appears that somehing is not quite right with the overal paperwork they are producing.

 

Regards all,

[patrickq1]

it might be worthwile to ring the FSA and ask for a senior Manager and explain you predicament ,also ask them can they give a ruling on this ,as it seems they are playing dirty i would be ringing them, if you beleived it to e a buy to let and they think otherwise you have no call because the solicitor has duped you with fraudulent paperwork and you have been left in a no win situation,so ring them first thing monday morn ,if the fraudulent part can be proven their is a chance you might be able to walk from this debt free due to fraud ,if the FSA say they will look into this case it will give you breathing space enough to help you get some form of action plan in going forward ...i have not had enough detail on this case ,but i would be screaming from the roof tops on this one also the law society ask can they help due to a solicitors fraudulent actions as they will have had the insurance indemnity money so perhaps this is another angle claim against the insurance ?

patrickq1

[patrickq1]

Fraud, Dishonest Conduct and the Tort of Deceit The tort of deceit is founded on the notion that a falsehood is made with the intention that it should be acted on by the party receiving it. The tort requires the claimant to prove a fraudulent intention.

The modern law of the tort is based on the decision of Lord Hershell in Deek v Peek (1889). In that case, the elements of the tort were determined to be as follows:

“In order to sustain an action of deceit, there must be proof of fraud, and nothing short of that shall suffice. Secondly, fraud is shown that a false representation has been made:

1) Knowingly, or

2) Without belief in its truth, or

3) Recklessly, carelessly whether it be true or false.

Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or to injure the person to whom the statement was made.”

A reasonable ground for the belief will avoid a successful claim for deceit, although this is not the ultimate test. The reasonableness of the belief in the light of the factual matrix of the case is material to the likelihood of the belief in its truth; that is not to say that an unreasonable belief in the truth of the statement would properly found a claim for fraud, but rather merely go to the likelihood that a person would hold the belief. A conscious indifference to the truth, in that the person making the misrepresentation knew the statement to be false, or was sufficiently reckless or careless as to the truth, does not have any honest belief in the truth of the statement which would found an allegation of fraud as much as the knowledge that the statement was false.

Proving Fraud

It is for the claimant to prove the facts (whether in a claim or in a defence) that give rise to the fraud, including the state of mind of the person making the representation and reliance. Such is the seriousness of allegations of dishonesty are treated, a court will look for persuasive evidence that the dishonest conduct is more likely than not. The public interest dictates that a court will not readily draw a conclusion that the mental element for deception has taken place. If the evidence does not convince the court, the action will fail. According, it is simply a question of having evidence of dishonesty, but convincing evidence of an intrinsic better quality proving the facts that the person making the misrepresentation did so with a guilty mind.

It is likely that a court will be minded to award costs on a higher level of recovery to a defendant who successfully resists allegations of dishonesty.

 

Nature of the Representation

Deceit presupposes that a misrepresentation has been made. The misrepresentation must be of present fact or law; and may be made by words or conduct. Further, the misrepresentation may indicate approval or support for a false representation made by some third person. In this way, to make out an allegation of fraud, words, conduct or a document must misrepresent a present fact or law, and others supporting the misrepresentation may also be liable.

The general rule prevents statements of future intention to founding a action in deceit. Where the person’s intention however may be proved to be false at the time the statement was made, a court is likely to take the view that the state of mind is a matter of present fact. As an extension to this, when a person promises to do an act, when they have no intention of fulfilling the obligation, that will also give rise to an action.

A similar rationale applies to statements of opinion. Provided that the opinion is intended to be relied upon and it is relied upon by the receiver of the statement and suffers damage as a result a dishonestly expressed opinion is enough. Again the difficulties with proof of the falsity of the opinion subsist.

For instance, entering into a contract with no intention of performing would satisfy this test or drawing a cheque and presenting it to the creditor in the knowledge that it will not be paid are likely to form good grounds; the difficulty is proving that the person held the relevant subjective intention at the time of making the representation.

Mere silence however is not enough. A claimant must be in a position to point to an act of concealment, to draw a person into acting. Accordingly half truths are capable of sustaining a cause of action in deceit provided that an active withholding of information may be proved. This may take the form of a fragmented or partial version of the truth or a misstatement of fact: the key is whether the withheld material makes that which was stated false.

The Belief and State of Mind

The essence of fraud is that the person making a representation. Although the person’s subjective belief may by measured and cast against an objective standard to test the likelihood of the belief, it must be the case that the person lacked an honest belief in the truth or consciously indifferent to the truth of what was represented.

This belief being present, the claimant must also prove that defendant intended the person to act on or rely on their false statement, in the manner that damage resulted. It is insufficient that the person suspects a person may rely on the statement.

Where an event is a reasonably foreseeable result, it is likely that a court will assume that the defendant intended that consequence. The representation does not need to be made directly to an individual, it may be directed to a class of people intended to act on the representation.

Reliance

The final element of the tort of deceit requires that the claimant acts upon the statement, that is to say relies upon it. If it may be shown that the claimant would have acted in the same way in the event that the representation was not made, an action in deceit will be dismissed. In essence the attempt to deceive on the part of the representor must be successful. The representation is not required to be the sole statement upon which the claimant relied, but it must make a material contribution to the cause of his actions.

Provided that the representation is made to the claimant in circumstances where a reasonable person would act upon it is sufficient to prove reliance. Indeed further knowledge may be acquired by the claimant after the representation is made, which will not displace the reliance, provided that the new knowledge does not wholly dissipate the false belief engendered by the representation in the first instance.

Damages

A claimant must show that they have suffered loss as a result of their reliance on the misrepresentation. In common with other areas of law, the measure of damages equates to the loss that they have suffered as a result of the conduct of the defendant, and not in the position they would have been if the statement were true. The same applies to this tort.

It may be said that a court will not be receptive to an argument by the defendant that the claimant has suffered damage where they have been deceitful. Where there is any doubt that the claimant has suffered damage, that doubt is likely to be resolved in favour of the claimant.

Loss suffered as a result of an unprofitable transaction, damage to property and to the person are recoverable, and in certain circumstances distress, disappointment and loss of enjoyment. The quantum of the latter are bound to be moderate. The court maintains a jurisdiction to increase these awards where the conduct of the defendant has aggravated the injury to the claimant. Where the fraud has resulted in the acquisition of property at an overvalue, the measure of loss is the difference between the value at which the property was acquired, less the market value of the property at the date of the transaction. This general principle applies unless there is good reason to depart from it – that is, that the claimant would not be fully compensated for the misrepresentation. Such instances include where the market value was otherwise created by a false market; where the misrepresentation could be construed as a continuing misrepresentation that the victim relied upon to retain the property, or there exist factors that force the victim to retain the asset.

Accordingly, the court will strive to adhere to the principle that a claim ant is entitled to recover all actual damage representing the financial loss flowing directly from his change of position under the inducement of the representations made by the defendant. To achieve this end, the rules relating to the reasonable foreseeability of the loss may well be relaxed.

Furthermore:

1.There is no requirement of financial benefit for the defendant;

2.where the claimant has made a profit in excess of the compensation that he would be entitled, the claimant has not suffered loss.

3.The claimant may recover a profit if it may be shown that the resources expended on the transaction may have been invested by another means.

4.the tort gives rise to a higher measure of damage than that awarded in contract, as the loss is assessed at the time the misrepresentation was relied on, and not at the time of the contract (assuming that the causes of action overlap). Thus, the measure of loss is not limited by the reasonably foreseeable at the time of the contract was formed, but at the date of reliance and having regard for the circumstances at that time.

Where the fraudulent misrepresentation has been made during the course of employment, the employer is jointly and severally liable with the employee for the misrepresentation. So when the statement is made with the actual or ostensible authority of the employer – part of their job – the employer will be liable. Further to this, the employer will often be a better defendant than the employee due to the resources available to them on execution of a judgment.

[tonyhuws]

Having fallen foul of Mortgage Express and their appointed L.P.A. Templeton who have mismanaged a property for two years, we have found it impossible to get info from M/X, we have written to Richard Pym (no reply) but have now involved our M. P. he is concerned to learn how M/X and the receivers act. they use the 1925 act which allowes them to take controle of your buy to let houses and to sell them at below market value without you having any say and no chance to go to court. This act needs repealing, write to the justice ministry and to your M.P. along with all other actions recomended here on this forum. The more who complain the better chance we have of success.

Edited November 27, 2010 by tonyhuws
spell check

[caro]

Hi Tony. Have you tried sending a SAR to MX. If they don't comply withing 40 days you can take it up with the Information Commissioners Office. http://www.ico.gov.uk/for_the_public/personal_information/how_manage/access_info.aspx

[patrickq1]

yes Caro i am sure all the others have tried to SAR MX who are totally ignoring all requests,they are after all a goverment company dressed up to look kegimate i have written to the goverment agancey who control this branch they will not even respond quoting sections that make them immune from answering question using official secrets act , so it really is upto MP's their is a prominent Conservative MP who has asked for a ten minit ruling on a debate i think it was shouted down by both libs and cons it stinks all round need some very drastic action but their again the newspapers are cuddlin upto the cons at the mo so will take time which a lot have nt got ,their is a ruling that these agents must hand back the properties after 12 months so perhaps they can be got on this but MX and others know they only need pass it on to another agent ? they have it all ways , only way that seems likely is direct action of barricading the place shut ot bulldozing the properties and get your day in court sorry that is an extreme version of getting a hearing lol

patrickq1

PS ARLA do not seem to have any intrest either strange huh

[caro]

After the fiasco with bank charges I realised a long time ago that the government of whatever party, most media, and so called regulatory bodies are not interested in consumers or their so-called rights Patrick. I knew others had SAR'd but with Tony being new wanted to check he knew about it.

 

Have complaints gone to the ICO, court action taken etc? What about Freedom of Information requests?

 

Just because nothing's working so far people still have to make themselves heard and keep making a nuisance of themselves so MX and co don't think they can have things all there own way without a fight.

 

Lobbying MPs can be a good route to getting things done in the long term, but of course people need help now. I wish I had some answers.

[diddled]

I made a FOI request to UKFI in March this year.

 

They claim that governnment investee companies are not subject to disclosure under FOI, and suggest contacting MEX to clarify the matters raised.

[caro]

Must admit I was unsure about FOI, but if that's the answer then obviously that's another non-starter.