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

[patrickq1]

good news for everyone new case just been in high court....this means immediate action against WS and ALLSOPS go for it guys

United Kingdom

October 13 2010 On 8 October 2010 the High Court gave a second judgment in Scullion v Bank of Scotland Plc (2010). The claim arose from a negligent valuation of residential property and is unusual, insofar as the claimant here was not the mortgagee but the borrower. It is also likely to be of interest to insurers as, potentially, it widens the extent and scope of the duty owed by valuers to buy-to-let purchasers.

The first judgment on liability was given in March 2010. In it Richard Snowdon QC (sitting as a High Court judge) held that the principle in Smith v Bush imposes a duty of care to the purchaser of residential property at the lower end of the market upon the valuer instructed by the lender and should apply also to buy-to-let purchasers of similar property. This second judgment deals with issues of causation, quantum and contributory negligence.

Background

The claimant was a self-employed builder who decided to enter the buy-to-let market. In October 2002 he purchased a flat in Cobham, Surrey for £299,800. His intention was to let the flat for an amount which would enable him to pay the mortgage and outgoings and to obtain some extra income. In due course, he also hoped to make a capital profit from selling the flat.

Colleys (the valuation service of BoS) were retained to value the flat by the mortgagee, Mortgages plc. Subsequently, they advised that the market value of the flat was £352,950, whilst the rental value was £2,000 pcm.

After some initial difficulty, the claimant eventually managed to let the flat in April 2003, although the rent achieved was only £1,050 pcm. However, as he was unable to cover his overheads, the claimant sold the flat in May 2006 for £270,000. Of this sum, the claimant paid £260,000 to the mortgagee, leaving an outstanding balance of around £71,000.

The claim

The claimant alleged that both of the valuations provided by Colleys were negligent. As regards the market valuation, he alleged that he was entitled to damages of £30,000 (the difference between the actual value of the flat (£300,000) and the price achieved upon disposal (£270,000)), such loss being reasonably foreseeable. As regards the rental valuation, he alleged that but for the advice given he would not have entered into the transaction. Accordingly, he claimed to be entitled to all payments and expenses in relation the purchase and subsequent rental.

The judgment

Giving judgment, Richard Snowden QC held that:

• A duty of care was owed to the claimant by Colleys in tort.
  
• Colleys had breached that duty of care in respect of both valuations.
  
• Colleys knew that the claimant would rely on both valuations to decided whether or not to purchase the flat.
  
• SAAMCO principles applied, such that the claimant could recover only those losses which were a consequence of the valuations being wrong.
  
• The claimant could not therefore recover damages of £30,000, caused by a deterioration in the property market.
  
• The scope of the duty owed by Colleys to the claimant was not necessarily limited by the scope of their duty to the mortgagee.
  
• The claimant suffered no loss as a result of the market valuation, as he in fact paid less than the market value of the flat.
  
• The claimant could not recover his costs of purchasing the flat or the first payment of mortgage interest, those liabilities not being attributable to Colleys' negligence.
  
• Broadly, the claimant could recover the amount of his overheads (including his mortgage interest payments and general letting expenses), less the rental income he received.
  
• The claimant himself did nothing to cause or contribute to his losses.
  

Further and importantly, he held that:

• In circumstances where the claimant had acknowledged his outstanding debt to his mortgagee, there were no grounds to reduce the damages payable to the claimant on the grounds that no such liability existed; and
  
• the claimant could not be compelled to use his damages in a particular way.
  

Comment

This decision is likely to be of interest to valuers and their insurers as:

• It appears to extend the duty of care in tort enunciated in Smith v Bush (1990) 2 AC 605, owed by valuers to residential purchasers, to commercial buy-to-let investors.
  
• It fails to draw any distinction between the duties owed by a valuer in relation to rental valuation and capital valuations, notwithstanding that the valuer has no control over rental receipts or their use.
  
• It confirms that valuers (and in turn their insurers) may be held liability for losses sustained by buy-to-let investors, over and above those of any mortgagee.
  
• It is a reminder that, generally, a borrower will not be compelled to apply any damages to discharge an outstanding debt to his mortgagee.
  

While the time to lodge an appeal against this decision has yet to expire, in its current form, this decision risks promoting yet further claims against valuers, who have already sustained a vigorous attack by lenders. However, in similar such cases by borrowers, it may be possible to distinguish this decision where there is evidence to show that the borrower is a large scale investor to whom no duty was owed. As part of any negotiated settlement and to avoid the risk of a subsequent claim by any lender, it may also be possible to agree terms for payment of all or part of the settlement sum to the lender direct.

 

[patrickq1]

double post ooops

[patrickq1]

what has happened to this thread anyone

[T2THEPOWEROF2]

They're all too busy fighting off greedy Mortgage Lenders and their Pirate Receivers !

[diddled]

Dont know Patrick

I imagine that with the exception of a couple they have thrown the towel in.

[T2THEPOWEROF2]

Dont know Patrick

I imagine that with the exception of a couple they have thrown the towel in.

 

I seriously hope not !!!

[patrickq1]

The UTCCRs provide that

i. All terms which have not been individually negotiated in contracts with consumers must be in plain and intelligible language.

ii. If terms define the main subject matter of the contract or the adequacy of the price and remuneration - the 'core' of the bargain - then as long as they are in plain and intelligible language, there cannot be any assessment of the adequacy of the price in comparison to the product provided in exchange. But these 'core' terms can be assessed for fairness on any other grounds (such as whether they are sufficiently drawn to the attention of consumers).

iii. All other (non-core) terms which have not been individually negotiated are unfair under the UTCCRs if, contrary to the requirement of good faith, they cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

[patrickq1]

i hope they have nt just given up, i will e mail them perhaps they have just gone on holiday to get away from it all, best idea yet huh

[caro]

Wasn't there talk of getting together to bring a group case? I suspect some peeps have gone off to a solicitor and keeping matters off the forum, which is a shame for those looking for help on CAG.

 

I hope they update later.

[chillinlong]

Hello all,

 

I am still battling on but it seems there is not much you can do legally.

 

Thanks for post patrick, but the cases you mentioned about the valuers would be difficult because of the market conditions have now changed unless you had solid evidence it was not worth it at the time of the purchase.

 

All in all the LPA reciever are a law unto themselves, the advice I seem to be getting is that you can only do something once recievers have sold the property and then claim for damages. In other words MX have used me all along in trying to work with recievers and have used thsi to benefit them knowing all along that they will not give properties back.

 

MX have failed to reply to my complaints.

 

WS have failed to reply to my complaints but try to blame me for everything.

 

ICO nearly a year later have not started investigation of the SAR.

 

FSA are not interested and referred me onto FOS who will be same as ICO and not do anything.

 

The whole system has been set up to work for them and delay these issues so they can sell.

 

I am only fighting on principle as they WS have accused me of everything and I have been trying to resolve all along. MX have lied from the beginning and promised several plans but never backed that up. It really makes you think is it worth actually pursuing this or just move on and start again from scratch. MX and WS have put on so much charges and still will not provide invoices it means that the mortgages are so high they will not be equity for some time now as a result of their actions.

 

I have tried getting meetings together but a lot of fellow Caggers are interested but understandably not want to reveal their positions so there it makes the collective action twice as hard as they only want to work for themselves as they think it will dilute their strength if they work with others.

 

Some have only taken information and not share so it kind of defeats working together to make ourselves in a position of strength. However there have been some great posters who are always trying to help and I really appreaciate and thanks everyone for this.

 

To make this work, as said before we need more Caggers to join in the fight who are in similiar positions. PM me if you are worried in revealing yourselves.

 

Speak soon all.

Thanks again

[projectoak]

Hello,

 

I have a Buy To Let property that got taken into repossession/receivership in June.

 

The mortgage company wrote a letter to me at some stage that I did not receive. I received a similar letter back in February giving me a 7 day notice letter and i managed to negotiate with them.

 

There was no mention of the LPA receiver involved only a receiver and claimed that the mortgage company are legally obliged to protect your interests.

 

Ive had a property taken off me before by 'RECEIVERS' but i got the property back after I paid back the arrears balance and provided and income and expenditure report.

 

The property was vacant when the receiver took over and needed a day to emulsion throughout it is a 3 bed tce so it was not substantial undertaking. I had a new roof on the house, i've weatherproofed the gable end, it has had a new bathroom suite and has got full central heating and generally is in a very good state of repair.

 

The property was in less than a grands worth of arrears on over 5 months ago and the mortgage cost is now about £100 and the rent £450pcm

 

The receivers have done nothing to the property since their appointment in my eyes and have now written to me informing me that they have been dis-instructed and are passing it over to the Asset management department of the mortgage Company.

 

After speaking with the lender recently and making an offer to pay back the full arrears they have refused the offer saying that their policies had changed and have knowledge that they are reshuffling their finances with a view to business next year.

 

I have had to let my property out to maintain the mortgage payments which effectively makes me homeless and i'm considering moving into the property to reside and redecorate making it my home. I will get my names on the Water and Utility Bills/ Council Tax etc. Would this be regarded as squatting or something similar?

 

I would like to apply for a court injunction or Eviction hearing and would ask for your professional opinion on my actions.

 

 

I have requested that all my notes on the file of these two companies be sent under the information act 2010. Can these legally be requested?

 

The arrears stand at £1400 and I can comfortably afford to pay a bankers drat to the claimants solicitor.

 

Kind Regards

[patrickq1]

mistake did not notice posting had additions

Edited October 27, 2010 by patrickq1

[chillinlong]

Hi everyone,

 

Project Oak, I am not sure if you can request SAR on companies, hopefully someone else should be able to answer that. But make sure you keep persistence.

 

Have been knocked back again by more solicitors saying you cant do anything once Recievers are in place. Until properties are sold then maybe you can sue for losses but apart from that no point.

 

Worst thing about it MX have used me all along to do everything but have failed to deliver on their promises.

 

Hoping the law is changed one day before all the properties are sold!

 

How is everyone else getting on? Tarquin any luck with yours yet?

[patrickq1]

October 28 2010

[/url]

In January

we posted on the impact of a case that ruled that landlords are able to claim rent as an expense of the administration when a tenant’s administrators are in occupation of all or part of a leasehold property. In another win for a landlord, the Court ruled that rent can be claimed as an expense of the administration when a tenant’s administrators permit occupation of the leasehold property under a licence. With the balance tipped a little more in favour of the landlord we think this may change the way administrators deal with property.

Both cases have made it clear that the rent was an expense of the administration which automatically ranks ahead of other claims in the administration (even the administrators own claim for payment). The new developments are:

• the Court does not have a discretion in whether to order payment or how much, the expense the landlord can claim is equal to the rent due under the lease;
  
• that rent is likely to be payable even if only part of the property is occupied;
  
• it does not matter if the property is occupied by the tenant company or by the company buying the business from the administrators.
  

In the recent case (Cheshire West and Chester Borough Council v Springfield Retail Ltd) administrators sold the tenant’s business and allowed a company connected with the buyer to occupy the property under a licence which required rent to be paid direct to the landlord. No rent was paid. The landlord did not consent to the licence. Eventually, the landlord changed the locks and the lease was forfeited. The landlord claimed the rent for the licence period from the administrators as an expense of the administration.

The improvement for landlords arising from this recent case comes from the fact that the court considered that the administrators used the property for the purpose of the administration when they granted the licence to occupy as part of the business sale.

Our experience for our landlord clients is that administrators often refuse to supply any information about who they have allowed to occupy the property and certainly resist any claims for rent to be paid. Now life will not be that simple and landlords will be able to press harder for payment than before.

What will administrators do differently?

1. Where rent is significant and use of the property is essential, we are already seeing some careful timing of appointments so that administrations commence just after a rent payment date. That way there is a gap before the landlord can claim the next rent payment from the administrators as an expense of the administration.
   
2. The days of permitting buyers to occupy as licencee and ignoring the landlord may no longer produce the best result for the creditors. Administrators may now need to engage with landlords at an early stage to agree economic terms for the temporary occupation of the property. Landlords may prefer this to an administrator vacating property early to avoid the next rent payment.
   

Whether we see more pre-packs or CVAs remains to be seen.

[charlesGGG]

Hi All

 

Sorry everybody...I keep appearing and disappearing again.

MX - Templeton, have managed to turn me into a poisoned rat dying and coming back to life again

(figuratively speaking)

 

I have been putting the things mentioned on this forum straight into practice trying every idea possible.

-The FOS is dealing with one issue

-Had an appeals hearing for another property using securitisation angle - Denied (judge said she does not undersatnd it)

-Notorial/Administrative process (affidavits etc) ongoing

-PPI unfair terms method (agent currently assessing account)

 

And now back with Templeton...they sneaked in a possession order for trespass against my tenants, who were away on holiday at the time ( I swear they were spying on the property) So have filed an N244 to have judgement set aside especially as there is not even any areas left on the acccount, and they still owe us about £3000, they paid a large chunk to MX earlier.

 

Hope all is progressing well with everyone...and thanks peeps for assistance. this forum is a god send. there are so many more questions to ask but for now just HELLO AGAIN.

[patrickq1]

that is your best bet an n244, this way you can also ask the judge to consider the fairness of the POA , well done

i am awaiting a reply from a proffessor who had some input into the LOP ACT and he has already stated the unfairness of the mortgagee's being allowed to repossess and sell of without a court order..as for templetons i beleive the ex MX finance director is involved with this lot , if so a serious conflict of intrest and skuldugerry has taken place me thinks

patrickq1

[patrickq1]

also the tennent is now protected under the new laws concerning tennents if you want i will get the data on here tommorrow ..

patrickq1

[chillinlong]

Hi PAtrick,

 

Good to hear from you, yes please I would like to see the tenants protection ASAP. WS have been threatening my tenants by sending agents to knock and sit outside tenants houses and telling them they will be evicted and locks changed in 7 days etc.

 

Nice to hear from you Charles also, are they managing your properties?

 

I keep hearing from the solicitors etc that it is wrong to try to take over the properties yourself as it will look bad to a court that you have tried to overtake them and if WS do place an injunction on you it will be impossible to appeal.

 

I have also looked at the routes of placing an injunction myself but again solicitors are saying no can do against recievers as will not win because they are a law unto themselves. I know this seems negatives but surely there is some way around all this.

 

Apparently PoA is only irrevocable if the debt is cleared which the chances of this going to happn is very rare at the moment.

 

Is there any solid way that will get a solicitor to back to place an injunction and actually have a leg to stand on against the likes of MX and WS?

 

Thanks again

[chillinlong]

One question that I am wondering, why do WS always ask the tenants to sign a new tenancy agreement even though they already have one in place when tenant moved in?

 

I wonder if the tenant does not sign this up then does that mean WS cannot evict them or something of the likes.

 

WS have been telling the tenants they will be evicted in 7 days unless they sign this agreement and landlord is not allowed anywhere near the property. This is really disgusting untrustworthy practice and now actually send agents out to intimidate, shame they did not bother doing this 2 and a half years ago when they first took over as they werent bothered.

 

In effect if the tenant refuses to sign WS tenancy agreement how does this affect the situation I wonder?

[patrickq1]

I wonder if the tenant does not sign this up then does that mean WS cannot evict them or something of the likes.

 

i hope they do not sign a new tennancey agreement as it will contain new terms and conditions that will allow them to increase rents or give the powers to evict sooner than they can at the moment, the tennents are in a better position as they cannot be evicted;;;;

have a look at this and claim back the rents it is possible with this judgement even before the receiver can claim monies you are entittled to the rent..

United Kingdom

October 28 2010

[/url]

In January

we posted on the impact of a case that ruled that landlords are able to claim rent as an expense of the administration when a tenant’s administrators are in occupation of all or part of a leasehold property. In another win for a landlord, the Court ruled that rent can be claimed as an expense of the administration when a tenant’s administrators permit occupation of the leasehold property under a licence. With the balance tipped a little more in favour of the landlord we think this may change the way administrators deal with property.

Both cases have made it clear that the rent was an expense of the administration which automatically ranks ahead of other claims in the administration (even the administrators own claim for payment). The new developments are:

• the Court does not have a discretion in whether to order payment or how much, the expense the landlord can claim is equal to the rent due under the lease;
  
• that rent is likely to be payable even if only part of the property is occupied;
  
• it does not matter if the property is occupied by the tenant company or by the company buying the business from the administrators.
  

In the recent case (Cheshire West and Chester Borough Council v Springfield Retail Ltd) administrators sold the tenant’s business and allowed a company connected with the buyer to occupy the property under a licence which required rent to be paid direct to the landlord. No rent was paid. The landlord did not consent to the licence. Eventually, the landlord changed the locks and the lease was forfeited. The landlord claimed the rent for the licence period from the administrators as an expense of the administration.

The improvement for landlords arising from this recent case comes from the fact that the court considered that the administrators used the property for the purpose of the administration when they granted the licence to occupy as part of the business sale.

Our experience for our landlord clients is that administrators often refuse to supply any information about who they have allowed to occupy the property and certainly resist any claims for rent to be paid. Now life will not be that simple and landlords will be able to press harder for payment than before.

What will administrators do differently?

1. Where rent is significant and use of the property is essential, we are already seeing some careful timing of appointments so that administrations commence just after a rent payment date. That way there is a gap before the landlord can claim the next rent payment from the administrators as an expense of the administration.
   
2. The days of permitting buyers to occupy as licencee and ignoring the landlord may no longer produce the best result for the creditors. Administrators may now need to engage with landlords at an early stage to agree economic terms for the temporary occupation of the property. Landlords may prefer this to an administrator vacating property early to avoid the next rent payment.
   

[charlesGGG]

Hey guys,

 

Just quickly read some back posts, to get re-aquainted with some of the new angles of attack.

Question to all and sundry:-

 

Since I have already submitted a N244 form and waiting for hearing date.

 

I am a bit confused with the CPR 31.16 thingy....I not only want to see copies of all documents but want them to bring originals to court, to make sure they are the still the holders in due course of anything they plan to sue upon - the supposed mortgage contract.

 

I have seen on previous posts CPR 31.14, then 31.15 and 31.16 don't understand the difference.

is there a different template letter for each one (ie patrickq1)

 

No money left for solicitors..so no one to look over finished product and will want to adjust/amend my self and send.

 

Also what errors should one be looking for when comparing the TR4 form (land reg) and the mortage deed.?

[patrickq1]

http://www.midlandslandlords.com/section7.html

 

 

Criminal Liability under the

Protection from Eviction Act 1977

[chillinlong]

http://www.propertyweek.com/5008522.article?origin=PWweekly

[charlesGGG]

Thanks Diddled / Patrickq1,

 

For ongoing info provided....just a quick point.

if it's the LPA solicitors that have brought the claim into court, does the CPR letter go to just them or everyone involved -- ie MX, Templeton, & the solicitors.

[diddled]

As far as I know you would send a CPR letter to the party who has threatened to or who has already started legal proceedings.