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

[patrickq1]

U.K. Banks? CDO Marketing Comes Under FSA Scrutiny (Update1) - BusinessWeek

 

so forward a complaint against MX and WS

http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_mha.htm

Edited May 7, 2010 by patrickq1

[Meerkat One]

Hi Marley 1

 

Ask WS and MEX on what grounds they are seeking to sell. WS need to have provided an exit strategy and have grounds to sell. How long has the property been with WS?

 

Regards

Meerkat One

[Meerkat One]

Marley 1

 

Who are the Estate Agents?

 

Meerkat One

[Meerkat One]

Hi Marley 1

 

Sorry for all the questions - trying to catch up! Drydens also work for WS. Have you Subject Accessed them all?

In the meantime request copies of all invoices paid by MEX from your accounts. Copies of invoices should also be requested from WS and Drydens.

 

Regards

 

Meerkat One

[patrickq1]

i think it was on defaults meerkat but their is every chance the defaults were possibly perpetrated by WS late payments from tennents etc. ...just waiting for chilli to come on ive sent him some very intresting data...

so i await to see what is happening

patrickq1

[patrickq1]

i thought there was an association with dry's but was nt sure ,and as i pointed out they need to register a objection to any proposed sale with the land authority until either one goes for a court order this way they can get all of the data they are looking for seeing as WS ME and DRY are not givving this information,they all seem to think they can walk all over people and take whatever they want,ive only been on this thread for about four weeks or so and i am shocked at the way these people are being treated,as the FSA have just ordered a new mandate to treat customers fairly this is not happening here ...glad to see you on here meerkat1

patrickq1

[marley 1]

hi meerkat the property in ? has been with them since last may, i can only assume the tenant has paid them no rent and that is why she vacated the house she had been a tenant for 13 years and if ever she fell behind she always managed to bring her rent up to date so i dont know what had happend i just told her to pay them but i do know she lied to them and said her rent was less then it was if they had communicated with me and not bullied and threatened her it could have been sorted a lot easier i dont know whats happened between her and WS as she no longer will talk to me im waiting for my sister to write two cheques out for the subject access as i dont have a cheque book i have put in complaint to ME and have been told it will take 20 working days to look into in the meantime i have a new tenant ready to move in the second property once it is ready and i will pay ME direct this property again has a backlog of high rent arrears which WS allowed to accumulate and to my knowledge they are not pursuing either tenant for these arrears they have just added it to my bill which i think is totally unfair because they allowed it to accumulate and when i ask if i should pursue the tenants they said no they would but since been told they are not going to they are just going to sell the houses which i think was their plan . im going to know email WS for some answer and i will keep you informed

[patrickq1]

how long was WS the LPA for the tennents and did the problems begin after they took over the care of the properties,please wait until the DSAR has been replied to before you contact them anymore,but if you do contact them keep to having everything in writing,

i think you need to go back to her and try to get a statement for all you know they may have increased the rents or added some extra's ,get your new tennent in and you make sure the monies are paid to your account then you make your payments(mortgage)to ME ,cut out WS and dont forget register your objections with the LA asap.

patrickq1

like ive said it sounds like they have been constructive in the removal of your tennants ,but this needs to be clarified with witness statements

[Bombs Away]

Hi Guys

Patrikq1 those links to ministery of justice were really insightfull.

do you know of any cases in law where LPAs were found guilty?

thanks and regards

Bombs Away.

[chillinlong]

hi all,

 

Sorry Ive not been around last few days.

 

Two brilliant points! The power of attorney act and registering a unilateral notice to dispute any sales of the property until resolved. I have used thisbefore with success on a different case.

 

Marley 1, if I was you I would rip the for sale board down, change locks, instruct agent to remove from listings as you are the rightful owner. Send email to WS, stating you will hold them liable for all losses incurred and demand no sale is to be carried out especially as all their actions on the property have caused this route whereas if it was managed properly it would be not a vialbe avenue. Importantly you hold them liable and want an explanation. Also state they have done all this without your knowledge!

 

Has anybody ever recieved proper statements from MX and WS, mine are conflicting and I cannot make sense of them.

 

Also, does anyone know if repairs are being added to the mortgage debt or arrears?

 

I applied to Drydens for SAR, their response (3 months later) was "As you are aware your file is closed, you need to contact WS for your information stored.". Correct me if I am wrong but WS are supposedly acting on my behalf therefore Drydens are acting for me?

 

Marley 1, try to let out all your props now even the one on the market, as they cannot evict legally unless they serve notice etc so gives you more time.

[Meerkat One]

I have received statements from MX but the copies of invoices from both MX and WS have not arrived. They have both sent a list of the charges but no detail. So really do not know what MX are paying out on if there are no invoices. WS also list insurance on their charges so I have asked for copies of the policies.

 

Marley 1 - do you know which Estate Agents is marketing your property? Have you Subject Access'd Drydens? They act for both WS and MEX.

[chillinlong]

Hi Meerkat,

 

If WS are managing the properties then they actually take the fees out of the rents, therefore MX dont know what is being taken out all the time and just look at what is incoming. I question MX as to why certain payments are lower and MX response is not sure I need to contact WS. In other words playing games and dragging this out longer for us.

 

I am not sure as to how the fees would be charged to MX from WS if they are not managing but I would envisage WS sending invoices and then MX are just adding onto the mortgage debt. MX blindly pay all invoices without questioning, until recently they realised so much was going out they now say it has to be approved by MX but MX still claim they do not know why they figures are lower. Cant win can we.

 

Has anyone had any luck with Drydens at all?

[patrickq1]

so failure to disclose all data regardless wether your case has been closed is irrelevent,they hold data and under the freedom of information DRYDENS MUST ADHERE TO THE STRICT CODE OF LAW.....write to DRYDENS informing them you are now forwarding a serious complaint to the SRA and the ICO..

getting near time now to issue both MX AND WS AND B& B..

this will make you smile///

now then lets look at starting with

YOUR CPR

will do some work on this tommorrow...

[chillinlong]

thanks again Patrick! hope you had a good weekend!

 

It is such a large case it seriously needs putting into an effective plan of action to which I will put together by the end of this week .

 

All the bodies involved are refusing to be co operative in handing over all paperworks I am legally entitled to.

[patrickq1]

oops double entry lol

[chillinlong]

I like the you tube, its the way they should be dealt with. the only problem is they can call the police and then get possession into your house which is the least I want at the moment.

[patrickq1]

lol ok

right familiarise yourself with this,this will be the next step...

PROFESSIONAL NEGLIGENCE PRE-ACTION PROTOCOL THIS PROTOCOL MERGES THE TWO PROTOCOLS PREVIOUSLY PRODUCED BY THE SOLICITORS INDEMNITY FUND (SIF) AND CLAIMS AGAINST PROFESSIONALS (CAP) - Ministry of Justice

[chillinlong]

Thats a brilliant start! A framework to start on pursuing this angle now. I suppose all the required paperwork will have to come in the CPR requests then.

 

I will try and absorb this tomorrow and get moving step by step.

 

Thanks again Patrick!

[patrickq1]

Difference between Privity of Contract, Novation and Assignment under UK Law

Introduction

The doctrine of privity of contract is the relationship that exists between parties to a contract. Only those parties to the contract are bound by it and are able to enforce the contractual obligations under the contract. The concepts of novation and assignment, although not exceptions to this rule, are contrary to the principles outlined in it and have developed to overcome restrictions imposed by the doctrine.

Privity of Contract

The principle that a person can not enforce obligations under a contract to which he is not a party to was established in the case of Tweedle v Atkinson (1861) 1 B. & S. 393 where A promised B that he would pay a sum of money to B’s son, C upon his marriage to A’s daughter. It was held that C could not enforce the promise made by A to B to pay him, as he was not a party to the contract.

This was re-affirmed in the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] A.C 240, 246 where Viscount Haldane LC stated that “ … in the Law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it”. The leading modern authority is Beswick v Beswick [1968] A.C 58.

Despite the volume of case law which re-affirms this principle, the doctrine has been, and remains, the subject of judicial debate proving to be far from popular as demonstrated in Darlington Borough Council v Wiltshier Northern Ltd [1195] 1 WLR 68, 76, where Steyn LJ expressed his dissatisfaction of the rule and the many inconveniences it caused.

Novation

The concept of novation derives from Roman Law and is where all liabilities and obligations under a contract, whether it is the transfer of the benefit or burden of a contract, can be passed to a third party providing that all parties consent. Where this happens, the original contract between the debtor and creditor is annulled and is replaced by a new contract between the debtor and the third party. Consideration must be provided in respect of the new contract and is usually assumed to be the discharge of the original contract and the creditor’s contractual obligations. For example, where A owes B money and all parties agree that C will pay the money to B, not A, B’s consideration to C is agreeing to release A from his obligations and A’s consideration is providing the new debtor, C.

Assignment

Novation can be distinguished from assignment. A party to a contract (the assignor) is able to transfer the benefit of a performance he is to receive under that contract to another person (the assignee) who is able to enforce performance in his own right, without the consent of the other party (the debtor). For example, where there is a contract between A and B and B assigns the benefit of the contract to C, he can then enforce it against A.

With regards to the assignment of the burden of a contract, the general rule is that this can not be done unless the creditor consents, as Collins MR in Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 at 668, stated: “It is, I think, quite clear that neither at law nor in equity could the burden of a contract be shifted off the shoulders of a contractor on to those of another without the consent of the contractee. A debtor cannot relieve himself of his liability to his creditor by assigning the burden of the obligation to somebody else; this can only be brought about by the consent of all three, and involves the release of the original debtor.”

Conclusion

As it stands, the doctrine of privity of contact is still an integral part of the principles which govern the law of contract. In recent years, the strictness of the principle has been alleviated by the Contracts (Rights of Third Parties) Act 1999. Contracts (Third Party Rights) Act 1999 has relaxed the operation of the doctrine so that a person or class of persons are able to enforce a contract without being a party to it where the contract confers a benefit on them; alternately, the contract may expressly provide for the benefit of third parties. The effect of this Act is usually excluded in commercial contracts.

The concept of novation and assignment may be catered for in the contract itself as a way of circumventing the limitations of privity of contract, although they are not considered exceptions to the rule per se.

[patrickq1]

Substantial, Material and Fundamental Breaches of Contract

In business contracts, a breach of the obligations imposed by the contract must be in respect to a condition of the contract (as opposed to a warranty) to permit the innocent party to terminate the contract. The right to terminate allows the innocent party to not only end the contract, but sue for damages fo the breach. Breaches of this kind and of this seriousness are repudiatory breaches of contract, however the agreement itself may refer to 'material', 'substantial', or 'fundamental' breach in the termination clauses.

‘Material breach of contract’ is used in contract law as a reference to a repudiatory breach of contract: Suisse Atlanique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale, unless the contract expresses a different intention. Simply because contracts contain termination clauses that define the bases upon which a party may terminate a contract (such as for “material breach” or “substantial breach”) does not prevent a party terminating a contract under the general law.

Conditions of Contract

In Bettini v Gye, Mr Justice Blackburn ruled that in the absence of an express intention of the parties, the test to ascertain whether a term of a contract was a condition of it where “whether the particular stipulation goes to the root of the matter, so that the failure to perform it would render performance of the rest of the contract a thing different in substance from what the defendant has stipulated for”.

A frequently adopted test is that from Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kasisha Ltd. In that case Diplock LJ stated, “Does the occurrence of the event deprive the party who has further undertakings to perform substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings.”

Peregine Systems Limited v Steria Limited concerned the interpretation of a clause that allowed the innocent party to terminate the contract in the event of breach of any term of the contract. Mr Justice Seymour ruled that although the contract stated that that the innocent party may terminate for ‘any breach’ the court would require that a repudiatory breach was required prior to the right to terminate arising in the innocent party. There is authority to say that a material breach of contract does not equate to the seriousness of a repudiatory breach; it is nevertheless a breach of a term that would have serious consequences for the innocent party.

The term ‘fundamental breach’ or breach of a ‘fundamental term’ may used in a contract, and is construed as a reference to a repudiatory breach of contract: Suisse Atlanique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale, unless the contract expresses a different intention.

The surrounding circumstances will be of assistance in determining this question of construction of the contract, and how the term in question affects the substance and foundation of the transaction that the contract is intended to carry out – that is, whether breach is a breach of a material term. In essence, the breach must go to the effect root of the contract, or at least affect the very substance of the contract, or frustrate the commercial purpose of the venture

[patrickq1]

The Mortgage conduct of Business rules / Mortgage Pre Action Protocol

 

The 2 main tools that should help a borrower in mortgage arrears are the Mortgage Conduct Of Business rules (MCOBs) and the Mortgage Pre Action Protocol (MPAP).

The over arching aim of both instruments is that possession should only be used as a last resort, after all other avenues have failed. There are a range of what are known as Lender Hardship Tools, that should be explored before a lender applies for a possession order.

The MPAP was brought in back in November 2008 but by October 2009 it was evident that adherence to the protocol was patchy and inconsistent so for all mortgage possession claims initiated after 1st October 2009 lenders must produce for the court a new form called an N123, which details their actions before possession.

Lender’s behaviour

 

It has to be said that some lenders are very good at negotiating and exercising sensitivity and a generally helpful attitude to borrowers in difficulties but in my experience the majority fall well short of that standard, sometimes behaving in an obstructive and evasive manner.

This behaviour has not escaped the attention of the FSA and their Mortgage Market Review proposes changes to the MCOBs to tighten up things like excess and unfair charges being levied on borrowers in arrears.

Lender hardship tools amount to what is termed ‘Forbearance’ on the behalf of the lender. At present the MCOBs relating to forbearance are guidelines only, which means that even if a borrower in trouble offers a certain deal or arrangement to the lender, they are not obliged to accept it, however the Mortgage Market Review recommends changing these guidelines into rules.

Protecting yourself from possession

 

In response to the recession the government has introduced high profile measures such as the over hyped but in reality, under effective Mortgage Rescue Scheme and the Home-owners Mortgage Support package but these are not available for buy to let mortgagors.

As we saw above, at the moment negotiating forbearance is a bit of a lottery. The worst lenders don’t give anything away and will ask you to make an offer without hinting at what they will accept.

Making an offer to your lender

 

Remember you have to offer something that amounts to a reasonable plan of action, you will be wasting your time if you just ask them to allow you time in the hope that your situation might improve. Similarly asking them to allow you not to pay while you chase your tenant for their arrears is not a strong argument.

• They can extend the life of the mortgage, which will reduce the monthly payments you make.
  

• They can grant you a payment break of a short period and tack the missing payments onto the end of the mortgage.
  

• They can reduce monthly payments for a short time
  

• They have the power to freeze charges and fees while you get yourself back on your feet.
  

• Where there are arrears but you have made regular monthly payments of say 3 or 6 months you can ask them to Capitalise the Arrears, which means to swallow them up into the mortgage as a whole.
  

Some lenders have strict lending covenants which may prohibit them from capitalising the arrears but if so you can ask them to exercise their discretion in accordance with a case law of Cheltenham and Gloucester Building Society v. Norgan 1995 which is a case where the judge allowed a borrower’s appeal against possession on the basis that if the arrears could be paid off during the life of the mortgage then that measure of forbearance should be allowed.

Always bear in mind that your contract with your lender is a 2 way street, you are their customer and it is strictly business. They can modify their deal with you in pretty much any way they choose as long as you have a sensible financial arrangement to propose.

If your lender takes you to court for possession it is wise to check both MCOBs, particularly rule 13, and the MPAP to see if they have covered all recommended pre actions before applying for possession.

If you try to negotiate with your lender but hit a brick wall each time or if they keep rejecting reasonable proposals and keep pushing for outright possession then you could file a complaint to the FSA itself for unfair treatment – remember the FSA ordered G Mac to pay some £7.7 million in redress to disgruntled borrowers and the FSA’s enforcement division are currently investigating 6 other firms on similar grounds and while you are lodging your complaint with the FSA let your lender know what you are doing, it might just be the leverage you need.

[patrickq1]

THE ABOVE WAS WRITTEN BY BEN REEVE A SPECIALIST IN THESE SORT OF THINGS SEE HERE

Mortgage advice for buy to let landlords - protect your investment

I HAVE ASKED IF BEN WILL COME ON THE FORUM SEE IF HE CAN GUIDE YOU THROUGH THE MIRE

PATRICKQ1

[chillinlong]

Thank you again Patrick!

 

One note that strikes out to me, because my props have always made more then the monthly payments if it is classed as "Consolidated" which they have effectively done. I have more than 6 months regular payments, the problem is because I managed them but allowed WS to collect the rents which they still struggle to do properly.

 

I approached B & B and asked them can we consolidate, they said no because it is in recievership therefore they are not allowed to allow this legally. However I had the same situation with another lender but managed to do this kind of repayment plan and they were happy to release from LPA. but Mortgage Express have deliberately kept it with WS as they know it is very difficult for the situation to get better as they are aware WS spend so much on unneccassary items and yet when I question MX about them they say I need to ask WS as they are not aware. I say how the hell MX are not aware when they are supposed to approve of the expenses. So I then ask WS about the details and they never ever reply and explan financially throughout, only the SAR provided some very unclear little statements that I cannot make sense of at all.

 

The only option is to throw the book at them as they are so uncooperative.

 

That is some brilliant reaind though again Patrick, would be interesting to know does the other strategies to resolve still applies even though in LPA.

 

thanks again

[Meerkat One]

MEX are perfectly able to disinstruct lpa receivers if they wish. However, they choose not to. The fact that both MEX and WS are unable to provide any invoices and detailed accounts suggests a number of things. Has anyone experience of the behaviour of other lpa receivers instructed by MEX? Is information, detailed accounts, invoices etc being witheld by these also?

[patrickq1]

MEX are perfectly able to disinstruct lpa receivers if they wish. However, they choose not to. The fact that both MEX and WS are unable to provide any invoices and detailed accounts suggests a number of things. Has anyone experience of the behaviour of other lpa receivers instructed by MEX? Is information, detailed accounts, invoices etc being witheld by these also?

if mex and ws are unable to provide invoices ,instruct them you intend to have the situation clarified with HM INLAND REVENUE tax inspectorate as you are of the beleif that their actions may be FRAUDULENT ,and you are asking for an investigation on the basis that you and others are unable to come to a satisfactory conclusion due to their innability to furnish even the simplest of tasks concerning invoice and accounting procedures that satisfy you or anyone else...

the law dont forget changed last year to stop this abuse by especially LPA and Estate agents so their is a lawful need to have the information supplied ..i will source a letter in the next day for you to write

patrickq1