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

[Bombs Away]

buy em back!!

chillin long,just thinking cre8tive here!

perhaps you could get a few guystogether to stump up some funding,combine that with some bridging (in new limited cos) name as im sure youd be suffering credit sore wise,-and buy your properties back!

you know them,run them,let them etc een if you had to give away major equity at least you can stay in the game!

BOMBS AWAY

[chillinlong]

Ed, Thanks for your suggestions... My case varies a little as WS and MX orginally agreed to let me let my properties in the beginning because I put so much pressure on them and exposing their tactics. It was only when the properties started becoming out of arrears they changed "changed the goalposts" by not allowing me to go anywhere near my properties.

 

Good ole Steve Molloy emailed me last week to say they and MX have instructed solicitors to draft a particular of claims against me to restrain me from going anywhere near my own properties that "I am interefering with" and are now ready to pursue this. Best thing about it at the beginning of the letter Molloy says it is being added onto my mortgages the costs. Then at the end of the letter it says Mortgage Express is paying for all this and it is costing them a fortune hahaa! I am doubtful whether Molloy can actually read and write properly.

 

I wonder if they know yet I have already started proceedings against him and WS and MX with a particulars of claims and I have served them notice last week of this. Along with this I will also be applying for an injunction on all the properties to prevent them selling pending the outcome of this case first thing Tuesday morning. They will be wondering what happened over the bank holiday weekend...

 

I am ready to fight them all the way to the death legally! Not having these people screw me over by deciding one thing and then change their mind after everything I have spent and done on the properties, these bank robbers!

 

Bombs away I would if I could, but in reality nobody will really invest into this type of venture at the moment.

 

Ed, Caro, Patrick I did instruct a barrister once on the contract law but he did not come accross any points like this therefore first we will see what happens with the above first, if may be I might need to in future though.

[Ed999]

Sadly, my personal opinion is that the type of court action you've outlined won't succeed.

 

For starters, long ago - more than ten years ago - the court rules were changed to prevent a claim of this nature from being begun in the High Court. You would be expected to issue your proceedings in the County Court for the district in which the property is located. The High Court is now mainly an appeals court, supervising the lower courts.

 

Also, from the minimal research I have done, the point that most clearly emerges is that such a claim is so complex it needs to be drafted by a Barrister, in order to best allow for the different legal grounds - both in contract and in tort - on which a challenge might realistically be based.

 

You are starting the case without first doing the necessary legal research, into the recent case law, that is essential in order to establish how to maximise the prospects of winning. This needs to be done first, and it needs to be done by a professional, who could also present the case at a hearing. The Bar Council's public access rules are tailor-made for such a case as this - and you're not taking advantage of them!

 

I have outlined some promising lines of research, and a barrister who specialises in mortgage law or land law will certainly be familiar with these and other possibilities.

 

So far as I can make out, you have not even sat down with a mortgage adviser from the Citizen's Advice Bureau, to discuss the relevent legal principles involved, even though their help is free.

 

 

 

 

Bar Council's Public Access Rules:

Public Access Guidance for Barristers - March 2010.pdf

 

Find a Barrister - The Bar Council's directory

 

 

It is important to note that the Barrister does NOT investigate the case, nor does he gather the evidence. That is YOUR job. He is not a Solicitor. Nor is he a private detective. YOU put the evidence before him, and he advises you in writing as to the law, and he presents the case in a hearing.

Edited May 30, 2011 by Ed999

[patrickq1]

i really think that it is worth fighting and not being negative this is also an issue of the HUMAN RIGHTS ACT ,ie:being denied access to justice because they have a simple POA that does not specify that he has forfeited his rights to have access to justice this POA denies him the right to fairness

patrickq1

Human Rights Act 1998:

Article 6 – The right to a fair hearing by an impartial body in a reasonable timeframe and to be told in detail the nature and cause of any charge made against them - hence closed session enforcement reports authorising enforcement action must be produced in demand.

Article 8 – The right to enjoy property without interference from public authority

Article 14 - The right to enjoy property without discrimination on any ground

[chillinlong]

Please be assured that it has all been prepared by the advice of a barrister therefore I have not taken this decision lightly, it has cost me a large expense and time to prepare up to this stage. The barrister has advised and prepared particulars of claims along with the steps to take in high court. We have done a lot of legal research and feel confident on the basis that has been done however there is always more research that can be done but feel what we have is sufficient to pursue now. Furthermore we are still continuing to back up with more evidence etc, more truth will be revealed as we go along.

[diddled]

Ed 999

 

Its all very well suggesting that people must seek legal advice, but many of these MEX/WS victims have already been cleaned out and dont have any money to instruct solicitors or Direct Access Barristers.

 

In my experience Direct Access Barristers require substantial upfront funding to review a case before they will assist.

 

Lawyers operating on a CFA basis also require up front funding to review a case before they can decide whether the claim is suitable for a CFA.

 

Many CABS dont have the necessary expertise to be able to assist, and are therefore reluctant to advise for fear of getting it wrong. My local CAB told me that I was the 1st person in 15 years that they had to turn away without being able to help.

 

Community Legal Service will generally only assist with consumer and welfare cases etc. They will not help with this type of legal issue.

 

The bottom line is, if you have no money you have no option but to go it alone.

[Ed999]

Your comments are fair enough.

 

However, this thread was begun by chillinlong. And my comments have principally been directed to chillinlong. He has said repeatedly that he wanted a way forward, and he has actually begun an expensive court action. I have been suggesting what might be more effective uses for his money than his current unfocused endeavours in his current court case.

 

Also, I'm aware from this thread that other users have been canvassed regarding the possibility of a group action, in which a number of users might contribute to the cost.

 

Also, I'm aware from this thread that other users have actually obtained assistance in similar circumstances from a Barrister in the past.

 

Also, I've not suggested instructing a Barrister to review an existing case. That would be a waste of money, in my opinion. I have only mentioned the possibility of getting a Barrister to review the case law, in the leading cases on section 109, and to advise on where there is a possibility of a legal challenge being made.

 

It would not be appropriate for the Barrister to be asked to review the facts of an existing case. That would not produce the plan of campaign that I am suggesting. He would only be asked to do something much more straightforward: an advice, in writing, summarising the law in the leading cases, on those points which allow a mortgage borrower to challenge the receiver's actions.

 

I'm not suggesting a Solicitor at all, with or without a conditional fee agreement.

 

I agree that it is too complex for a Solicitor. And that it falls outside the field of the Citizens Advice Bureau.

 

By the same token, where it seems reasonably clear that a case is likely to prove beyond the capabilities of both a Solicitor and the CAB, it also seems likely to prove beyond the capabilities of a litigant in person - unless he has specialist help. The Bar's public access rules might be one way of getting that help. A way, moreover, that does not involve also meeting the extravagent fees of a Solicitor.

Edited June 1, 2011 by Ed999

[Ed999]

Originally Posted by mungos mum

 

I think it was a very informative meeting and having an M.P and a Barrister there certainly helped me to see things in a slightly different way.

 

Both the M.P & Barrister seemed quite surprised that the lender we were having the most problems with is MX...a company wholly owned by the British taxpayer.

 

... The Barrister was great, we have over the last few years met countless solicitors and Barristers, but this guy was different and unusually for a Barrister, quite human!

 

 

It would be useful to know the name of the Barrister, and which set of Chambers he works out of.

 

Barristers tend to specialise in particular areas of law, much more so than Solicitors. A Barrister who practices criminal law is of no use when you have a mortgage problem regarding land law. In approaching a Barrister under the public access rules, it's essential to select someone who is experienced in the type of case you are fighting.

[Ed999]

Is there any interest in my doing further research into the issue of negligence claims against an LPA Receiver?

 

That is something which was mentioned by chillinlong, as being a type of claim he hopes to eventually make.

 

The on-line law reports on the Appeal Court's website will presumably include any recent leading cases in that area.

[patrickq1]

it would be very worthwhile Ed for you to do some research that is sadly lacking , i am slightly disappointed that chilli is having to go this alone although i understand funds are in short supply with the rest but i wish the rest of you guys would see some hope in making a voluntary contribution, after all this is as close as you will ever get to seeing a case going before a judge, but if the judge does see their is merit in this case because of the legal uncertainties and of the unfair practices that these LPA's operate along with the need to get clarification one way or the other as to your rights , this is just the first step and i do hope you can all contact chilli with regards to helping out , me Caro and ED can keep researching for something to help this along the way

patrickq1

[chillinlong]

Thank you all again... The contributions does not neccassarily have to go to my case but rather a solicitor to act on all of the landlords in a similiar situation. This make it more cost effective and a stronger chance to do a class action.

 

Ed, thanks for the offer. I have sent you a PM.

[Ed999]

A class action is out of the question, unfortunately, because that would be a claim brought on behalf of all borrowers - everywhere! - who have a mortgage with Mortgage Express. It is impractical to seek the consent of the thousands of borrowers in that class.

 

 

As far as I can see, you all have a basic lack of understanding of the difference between a solicitor and a barrister.

 

You can instruct a solicitor to conduct your entire claim against the LPA receiver; but you will be paying him, in large part, to do things you could probably do yourselves: namely, gather the relevent facts, and prepare witness statements containing those facts, and brief the barrister to advise on the law and/or appear at a hearing.

 

A barrister can't handle your case for you. But he can do things a solicitor can't, namely the most important thing, legal research. Barristers who specialise in this field of law will have a specialised library of legal journals and law reports that deal with this field. And a LOT of personal experience of other cases similar to yours.

 

Am I teaching my grandmother to suck eggs?

 

Do you really need me to tell you that you need to prepare a written statement of the facts?

 

The barrister would need to know the address of the property, the name of lender and borrower,the date of the mortgage, the amount of the original loan, whether it is a repayment or endowment mortgage, the original interest rate, the amount of the monthly payment due currently, the current amount of the arrears, the date the LPA Receiver was appointed, and the name of the Receiver

 

Also, the key dates in any court proceedings: issue of summons, filing of defence, date of final hearing; including details of the court order made at that hearing.

 

And the barrister would need a statement showing the timeline of the loan up to the present date: showing the amount of each payment due, with the due date; all payments made, with the date of each payment; all changes in the interest rate, with the date of each change; and all rental income received from tenants [both BEFORE and AFTER the appointment of the LPA Receiver], with the date and amount of each receipt; and a running total, culminating in the balance currently owed.

 

The more interesting aspect will be preparing a timeline of the LPA receiver's actions since their appointment, in terms of: valuing the property, including the valuation figure, with date of valuation; and letting it to tenants, with dates of each event, i.e. the date of creation and date of termination of each tenancy, with name of tenant and amount of monthly rent due.

 

You can send a Subject Access Request to the mortgage lender. They'll try to only give you limited information: they may claim that because of the Durrant case they don't have to provide all the data requested. If so, threaten them with the Information Commissioner's office.

 

You can also send a seperate Subject Access Request to the LPA Receiver. They keep details of tenant rental payments.

 

Yes, you can pay a solicitor a large sum of money to gather this information slowly. And be sure he will try to gather most of it from you, so you'll be paying him and doing the job for him. You'll enjoy that.

 

 

 

The prudent course of action will be for each individual claimant to prepare those basic statements, in writing, long before you go anywhere near a Solicitor or a Barrister.

 

Ultimately, it might make sense to talk to a Barrister who is a member of the Property Bar Association.

Edited June 4, 2011 by Ed999

[Ed999]

In Raja v Austin Gray [2002] EWCA Civ 1965 (19 December 2002), concerning the negligence of a Valuer and his principle, the Receiver, in the Court of Appeal, Peter Gibson LJ did say this -

 

Equity intervenes to ensure that proper account is taken of the interests of the mortgagor and others interested in the equity of redemption. The mortgagee is only interested in the discharge of the debt owed to him, but equity makes sure that the mortgagee acts fairly to those interested in the equity of redemption when the mortgagee exercises the power of sale. In a case such as the present, the sale being an exercise of the power of sale of DFL as mortgagee, it seems to me that the relevant person to be treated as interested in the equity of redemption must include the mortgagor who has mortgaged the properties in question to DFL in circumstances where DFL's power of sale is being exercised by the receivers. I would therefore hold that the receivers did owe a duty of care to Mr Raja when they exercised DFL's power of sale of the properties, even though the receivers were appointed by the mortgagee of DFL.

 

 

This dealt only with negligence in relation to the exercise of the power of sale, on a forced sale by the mortgage lender [acting through the LPA Receiver], but did not deal with negligence in relation to the management of the mortgaged property prior to sale.

 

Basically, Raja was decided AGAINST the borrower. But it is only about the ultimate sale price achieved for the property by the lender, not about the management of the property during the receivership.

[Ed999]

What is LPA Appointment?

 

LPA receivers derive their authority from the Law of Property Act 1925, and from the mortgage deed, and can effectively do anything that the borrower himself can do, unless in the unusual event that this authority is limited by the terms of the mortgage deed (Hughes, 2007). An LPA receiver is thus a very powerful and effective tool which invariably delivers results.

 

An LPA receiver is an individual, not necessarily an IP, appointed either by the Court or by the holder of a fixed charge. The fixed charge is generally over a property such as an investment property held for rental income (i.e. buy-to-let property). An LPA receiver can be appointed in connection with a limited company, a sole proprietorship, or a partnership.

 

LPA Receiverships are not insolvencies and should not be confused with administrative receiverships.

 

In the case of buy-to-let properties a LPA receiver is appointed by a lender who has a fixed charge over property. The powers of the LPA receiver are as follows:

 

1.To demand and recover rent

2.To give receipts for income

3.To ensure any property against loss or damage

4.To grant a lease over the property at the best reasonably obtainable rent

5.To accept a surrender of a lease in order to grant a new lease

 

In a well drafted mortgage the above powers are extended and would allow the receiver to take control of the property and act as he considers fit with the consent of the mortgagee.

 

Reference:

Hughes, J. (2007), “Law of Property Act Receiverships (Law and Practice)”, Lime Legal, ISBN 0-955-2834-2-6

 

 

Comments

 

The words I have emphasised in bold indicate the existence of an obligation, but not whether it is owed to the lender alone, or to the borrower also.

[Ed999]

Benefit to lender

 

The lender is faced with being unable in the short term to repossess and dispose of the property immediately and is then left in the situation where the property needs to be effectively managed and rental income collected and directed towards the monthly mortgage installments.

 

Additionally in the present falling capital value property market the lender may find that a reposessed property is worth less than the value of the mortgage. In this case it would be logical to continue to let the property until the market has recovered to a point that the loan value can be fully redeemed.

 

In either case the lender may not be willing or able to deal with the administration and management. Also the sensitivity of dealing with tenants directly and the potential damage to the corporate brand for the lender should not be underestimated.

 

Source: http://www.foxwelllpa.co.uk/lenders.php

 

 

 

Procedural Requirements

 

There are procedural requirements which must be complied with when appointing a receiver and it is crucial that these are followed. In particular, to ensure the validity of the appointment, the lender must make sure that there is no administration order in place, that correct notices have been served and that timescales have been complied with.

 

 

 

Duty of Care

 

The obligations of the receiver have been considered extensively by the courts, and case law has arisen which acts as a guide for LPA receivers as to the extent of their obligations. The extent of the duty of care of the receiver will depend on the circumstances of each case.

 

The 1993 case of Downsview Nominees Ltd v First City Corporation (1993) AC 295 held that the receiver owed a duty to the borrower, and by extension to the borrower’s guarantor, but that the duty of care was founded in “equity” and therefore more restricted than the form of “duty of care” based in negligence. The receiver’s obligation would be satisfied if it acted in good faith with the object of preserving and realising assets for the benefit of the lender. In those circumstances it could not be criticised even if it was incompetent.

 

However, a receiver’s obligations have been extended by subsequent cases. In particular, in the case of Medforth v Blake, the court criticised the receiver for not maximising the financial position. In that case, the receiver of the business of a pig farm was held liable for failure to negotiate a bulk discount for the pig feed it purchased. The principle of a good faith referred to in the Downsview case was extended to include the duty of due diligence.

 

In the 2003 case of Silven Properties v Royal Bank of Scotland it was concluded that the LPA receiver was not obliged to pursue a planning application which might increase the value of the property. The suggestion being that the receiver was under a duty to expend money to maintain the value of the security but not to improve it. He therefore was not under an obligation to take steps to improve the security by obtaining the planning permission.

 

The 2008 case of Bell v Long concerned the sale by a receiver of a portfolio of properties as one “complete” portfolio. The question arose as to whether the receiver should have sold the properties as one portfolio or individually. The receiver had received offers for three out of the four properties from individual sellers but after taking advice from a local agent rejected those three individual offers and sold the properties as a complete portfolio to one purchaser. Action was taken against the receiver on the grounds that the receiver would have obtained the best price had the properties been sold on an individual basis. The arguments were rejected and the court held that whilst the receiver was under an obligation to obtain a proper price for the properties he was not obliged either to “ride the market” or “take on onerous expenditure in order to achieve a sale”.

Edited June 4, 2011 by Ed999

[diddled]

Think Chillin meant a Group Action, not a Class action

[Ed999]

Think Chillin meant a Group Action, not a Class action

 

 

Fair enough. Not something I've had any experience of, though, either way.

 

Are you anticipating advertising, on-line or in the national press, for other affected Mortgage Express borrowers to join-in such an action?

 

Given that Mortgage Express has been nationalised, have you contacted your MP? He might be able to obtain details from the responsible Minister of any complaints which have been made about Mortgage Express since nationalisation. Those complainants might be interested in taking part in any legal action.

 

You can easily contact your MP.

[mungos mum]

Hi Ed

Thank you for all the info, it certainly makes for interesting reading.

As far as contacting M.P's are concerned a few of us have 'hit a brick wall', the only M.P that I know of who is the slightest bit interested in this fiasco is George Eustice, MP for Redruth, Cornwall. He has a 2nd reading of his 'Secured Lending Reform Bill' in the House of Commons on (I think) the 10th of June.

I have tried to make contact on several occasions with our local MP asking her to support the bill, she has completely ignored me...I know that I should kick up a fuss but to be honest after 3 years of fighting we have to get on with our lives & find a way to earn a living.

We have in the past contacted both P.M's & chancellors in both the last government and the current government, all to no avail.

The barrister a few of us met with has gone very quiet, I don't know that anyone has had any success with him.

Sorry that this all sounds very negative but as I mentioned earlier, a few of us have done a lot of research, had meetings, done our Subject Access Requests, met solicitors & barristers who have written seemingly good letters for us that have been sent to MX & the receivers and we still haven't moved forward in any way.

I don't know about other Caggers, but we have spent a small fortune seeking help and advice from solicitors and barristers, we have now completely run out of money and there is no way that we can afford to pay for any form of legal advice.

We have massive files, full of information regarding the wrong doings of both MX and the receivers. This includes evidence of MX and the receivers collaborating against us, E-mails and photographic evidence of the receivers false accounting, proof that the lender knew what was going on but doing nothing to stop the receivers, the receivers accepting their appointments months before they were actually appointed by the lender, the receivers accepting appointments in the wrong names, proof that the recievers (or their solicitors) carried out no due diligence when accepting appointments, the list goes on and on.

I am sorry that this comes across as a very defeated posting, but we are tired of the fight and as you may have guessed we are just a tad jaded now!

We're still happy to share info but for the time being we have run out of 'fight'

MM

[Ed999]

Understandable, really. And I hope you didn't mind my skipping reading the first 65 pages on this thread - which might have made the points which you've kindly summarised!

 

It seemed to me at first glance that there were a lot of Subject Access Requests flying about, and a lot of activity still going on. But nobody seemed to be focusing on the legal principles underlying the type of case you were all discussing.

 

I can see the satisfaction in battering the mortgage lender and the receiver with SAR's, etc.

 

Hopefully, I've been able to clarify to some extent those legal weapons which are available in court, and which might be of some use in the one case that is evidently underway at present, or in any future group action.

 

 

I am not suggesting getting an MP to put up a draft Bill in Parliament. Nor even rounding up some 'tame' MPs to criticise Mortgage Express. I'm suggesting only asking a single MP to do one single action - namely, to write to the responsible Minister in the Government, and request details from him of any complaints received by his Department about Mortgage Express since nationalisation.

 

The complainants might be contactable, and might be interested in being involved in the Group Action under discussion.

[bluebell21]

Hi all, I'm new to the forum. Thanks for the information from everyone and for the legal info from Ed999. Myself and two others that I know are all victim to Mex and the Receivers and I am sure we can do something about this.

 

I know there is a lot of despondency due to the fact these issues have dragged on for so long but I really think a group action is a great way to go, financially as well as emotionally. Mungosmum it sounds like you have some valuable information there.

 

I think it would be really beneficial to get a full list of all those affected who wish to bring this action. Could everyone email me their email addresses? Then we can set up something on Messenger or something so we can all communicate together. I don't think we should post too much info onto the actually forum itself incase 'they' are watching.

 

Look forward to hearing from you all. I really believe we can fight this.

[bluebell21]

Hi again all. I really am on a mission to do this, and I am perfectly happy being the one doing the collating of the information that Ed999 has detailed. I will also meet with barristers to find out who can represent us.

 

I know there are 3 of us already who wish to bring the group action so please confirm if you wish me to add your name.

[pigland]

Hi all,

 

Ref; Northern Rock sell off

 

Question; Doesn't Northern Rock (NRAM) encompass B&B's buy-to-let mortgages? Have a look at NRAM's Annual results and profits!

 

Am I missing something? The money lent for all Buy-to let Mortgages was not lent by the Government. The properties get repossessed through questionable means (some call it theft) the Government gets the loan money that they never lent and then they sell off what's left.

 

Hey talk about going to the bank to get a loan!

 

Don't you just love the irony!

 

Kind regards

 

Pigland

 

p.s Ed: Been enjoying your posts! Good work!

[keates]

You are not alone. There are many others trying to get justice following the appointment of LPA Receivers. I have a barrister working on it and we have a complaint against Kent Reliance Building Society with the Financial Ombudsman Service. Once that complaint is settled we will be considering suing the LPA Reciever, Michael Parkes Surveyors, who have so far increased our debt by over £100,000. You might also be aware of the Secured Lending Reform Bill which George Eustice MP is taking through parliament which aims to curb the activities of LPA Receivers. I, and other landlords met George Eustice in London in March and he said he would support us and we are trying to work together to end this nightmare situation. I hope this helps

[Ed999]

You might also be aware of the Secured Lending Reform Bill which George Eustice MP is taking through parliament which aims to curb the activities of LPA Receivers.

 

 

What is the exact status of that Bill?

 

I understand it's very difficult for a back bench MP to get a Private Members Bill through Parliament, unless the Government adopts the Bill and allocates it additional Parliamentary time.

 

And what does the Bill seek to achieve? If enacted, what changes in the law will it make?

 

Have you considered the possibility of asking other forum users to lobby their MP to ask him/her to support the Bill?

[Ed999]

I am perfectly happy being the one doing the collating of the information that Ed999 has detailed.

 

 

Well done.

 

To be honest, I put that suggestion up on this thread partly in the hope - and expectation - that someone would pop up and tell me I was a fool; that this had long since been done.

 

As no one did so, I drew the conclusion that this information has never previously been put together.

 

Matters were then a lot clearer. It was suddenly obvious why previous attempts to get assistance from a Barrister or a Solicitor had foundered. And the future outcome for this thread now seems a lot more optimistic.

 

Only by putting a proper statement of the facts together will you give a professional lawyer enough material to work with to be able to realistically consider accepting instructions to represent the borrower.

 

A lot of money has obviously been spent on this thread in the past. But without any real - i.e. legally relevent - facts to work on, the prospect of success was necessarily remote.