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

[chillinlong]

hmmm not sure caro. Supposed maybe some lenders like MX dont want to have any legal action for when prices are sold below so they leave responsibility to WS perhaps.

[caro]

I was thinking there could be a conflict for a receiver to earn from the sale having managed to see off tenants, mismanage property and allow mortgage arrears increase. Hypothetically of course.

[chillinlong]

You on late nights Caro

True, but I cant remember seeing anything about Recievers have the right to dispose of property just to ensure the loan was cleared in the best possible way whether that means through the use of selling though.

[caro]

Bit of a night owl chillin.

 

Well selling would clear the loan - or at least a large part of it.

 

Just bouncing ideas about.

[chillinlong]

This is the problem, selling would only clear maybe up to half of the loans in this market.

 

I will get back to my drawing books. got to be something we can go on.

 

thanks again

[patrickq1]

the responsibility of the maintainence of the property rest's with the Landlord ,

the LPA terms and conditions can be varied by the mortgagor ie MX ,but also you need to be informed of the excact terms and conditions , you also need to check the insurance details of the LPA as you will be held resposible for any repairs hence the damage done to properties when you thought it was covered by their insurance will not be the case ,

the LPA has it all ways ,but their is light at the end of the tunnel as i am going through a couple of old cases now and checking out on what grounds , firstly the mortgagee have removed your absolute right to manage this debt but on the other hand they are expecting you to maintain the properties for any repairs so it looks like this power of attorney has become a unfair practice and you can and do have the right to challenge this on the basis of unfair practices ,

any losses sustained due to receivers underselling properties can be held against both mortgagor and receiver

patrickq1

[sillygirl1]

Dont' forget if they add an 'Asset Management Fee' you have the right to ask who was appointed, what they did and when their appointment started/finished.... this is another thinly disguised "early repayment charge..." I got charged £4,500 from GMAC for one and challenged them and they shut up...

[patrickq1]

Contract Law - Rights of third parties

 

What this page is about:

Law of Contract Home >> Contract Law Notes >> Consideration and privity of contract >>

 

The following provisions do not apply in relation to a contract entered into before 11 May 2000, unless the contract is entered into on or after 11 November 1999 and expressly provides for the application of the Contracts (Rights of Third Parties) Act 1999: s 10(2), (3).

 

1. Right of third party to enforce contractual term

 

A person who isn't a party to a contract may in his own right enforce a term of the contract if the contract expressly provides that he may1, or the term attempts to confer a benefit on him2. The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into3. A third party has no right to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract4. For the purpose of exercising his right to enforce a term of the contract, there's available to the third party any remedy that would have been available to him in an action for breach of contract if he'd been a party to the contract, and the rules relating to damages, injunctions, specific performance and other relief apply accordingly5. Nothing in the above provisions affects any right of the promisee6 to enforce any term of the contract7. Similarly, the above provisions do not affect any other right or remedy of the third party that exists or is available8.

 

 

1 Contracts (Rights of Third Parties) Act 1999 s 1(1)(a).

 

2 Ibid s 1(1)(b). This doesn't apply if on a proper construction of the contract it appears that the parties didn't intend the term to be enforceable by the third party: s 1(2). See Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2003] EWHC 2602 (Comm), [2004] 1 All ER (Comm) 481; Laemthong International Lines Co Ltd v Artis [2005] EWCA Civ 519, [2005] 2 All ER (Comm) 167 (defendant failed to discharge burden of showing that letter of indemnity not meant to be enforceable by third party). See also Prudential Assurance Co Ltd v Ayres [2008] EWCA Civ 52, [2008] 1 All ER 1266.

 

3 1999 Act above s 1(3). See Avraamides v Colwill [2006] EWCA Civ 1533, [2006] All ER (D) 167 (Nov) (agreement didn't identify any third party or class of third parties).

 

4 1999 Act s 1(4). Where a term of a contract excludes or limits liability in relation to any matter references in the 1999 Act to the third party enforcing the term are to be construed as references to his availing himself of the exclusion or limitation: s 1(6).

 

5 Ibid s 1(5). A party must not be treated, by virtue of s 1(5), as a party to the contract for the purposes of any other Act (or any instrument made under any other Act): s 7(4).

 

6 'Promisee' means the party to the contract by whom the term is enforceable against the promisor: s 1(7).

 

7 Ibid s 4.

 

8 Ibid s 7(1).

 

2. Variation and rescission of contract

 

Where a third party has a right to enforce a term of the contract1, the parties to the contract may not, by agreement, rescind the contract, or vary it in such a way regarding extinguish or alter his entitlement under that right, without his consent if (1) the third party has communicated his assent to the term to the promisor2; (2) the promisor is aware that the third party has relied on the term3; or (3) the promisor can reasonably be expected to have foreseen that the third party would rely on the term and the third party has in fact relied on it4. However, this restriction is subject to any express term of the contract under which (a) the parties to the contract may by agreement rescind or vary the contract without the consent of the third party5; or (b) the consent of the third party is required in circumstances specified in the contract instead of those set out in heads (1)-(3) above6. Where the consent of a third party is required7, the court or arbitral tribunal may, on the application of the parties to the contract, dispense with his consent if satisfied8 that his consent can't be obtained because his whereabouts can't reasonably be ascertained9, or that he is mentally incapable of giving his consent10. The court or arbitral tribunal may, on the application of the parties to a contract, dispense with any consent that may be required under head (3) if satisfied that it can't reasonably be ascertained whether or not the third party has in fact relied on the term11. If the court or arbitral tribunal dispenses with a third party's consent, it may impose such conditions as it thinks fit, including a condition requiring the payment of compensation to the third party12. The jurisdiction conferred on the court13 by sub-ss (4) to (6) is exercisable by both the High Court and a county court14.

 

1 Ie under the Contracts (Rights of Third Parties) Act 1999 s 1: see 'Rights of third parties'.1.

 

2 Ibid s 2(1)(a). 'Promisor' means the party to the contract against whom the term is enforceable by the third party: s 1(7). The assent may be by words or conduct, and if sent to the promisor by post or other means must not be regarded as communicated to the promisor until received by him: s 2(2).

 

3 Ibid s 2(1)(b).

 

4 Ibid s 2(1)©.

 

5 Ibid s 2(3)(a).

 

6 Ibid s 2(3)(b).

 

7 Ie under s 2(1),3.

 

8 Ibid s 2(4).

 

9 Ibid s 2(4)(a).

 

10 Ibid s 2(4)(b).

 

11 Ibid s 2(5).

 

12 Ibid s 2(6).

 

13 Ie under ibid s 2(4)-(6).

 

14 Ibid s 2(7).

 

3. Defences available to promisor

 

Where proceedings for the enforcement of a term of a contract are brought by a third party1, the promisor has available to him by way of defence or set-off any matter that (1) arises from or in connection with the contract and is relevant to the term2; and (2) would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee3. The promisor also has available to him by way of defence or set-off any matter if (a) an express term of the contract provides for it to be available to him in proceedings brought by the third party; and (b) it would have been available to him by way of defence or set-off if the proceedings had been brought by the promisee4. Further, the promisor also has available to him by way of defence or set-off any matter, and by way of counterclaim any matter not arising from the contract, that would have been available to him by way of defence, set-off or counterclaim against the third party if the third party had been a party to the contract5. Where in any proceedings brought against him a third party seeks to enforce a term of a contract (including, in particular, a term purporting to exclude or limit liability), he may not do so if he could not have done so (whether by reason of any particular circumstances relating to him or otherwise) had he been a party to the contract6.

 

Where a term of a contract is enforceable by a third party7, and the promisee has recovered from the promisor a sum in respect of the third party's loss in respect of the term or the expense to the promisee of making good to the third party the default of the promisor, then, in any proceedings brought by the third party, the court or arbitral tribunal must reduce any award to the third party to such extent as it thinks appropriate to take account of the sum recovered by the promisee8.

 

1 Contracts (Rights of Third Parties) Act 1999 s 3(1). The proceedings are brought in reliance on s 1: see 'Rights of third parties'.1.

 

2 Ibid s 3(2)(a). Section 3(2) is subject to any express term of the contract as to the matters that are not to be available to the promisor by way of defence, set-off or counterclaim: s 3(5). For the meaning of 'promisor' see 'Rights of third parties'.2 note 2.

 

3 Ibid s 3(2)(b). For the meaning of 'promisee' see 'Rights of third parties'.1 note 6.

 

4 Ibid s 3(3).

 

5 Ibid s 3(4). Section 3(4) is subject to any express term of the contract regarding the matters that are not to be available to the promisor by way of defence, set-off or counterclaim: s 3(5). A third party must not, by virtue of s 3(4) or (6) (see note 6 below), be treated as a party to the contract for the purposes of any other Act (or any instrument made under any other Act): s 7(4).

 

6 Ibid s 3(6).

 

7 Ie under ibid s 1: see 'Rights of third parties'.1.

 

8 Ibid s 5.

 

4. Exceptions

 

No rights are conferred1 on a third party in the case of a contract on a bill of exchange, promissory note or other negotiable instrument2. Similarly, no rights are conferred on a third party in the case of any contract binding on a company and its members under the statutory provision relating to the memorandum and articles3. No rights are conferred on a third party to enforce: (1) any term of a contract of employment against an employee4; (2) any term of a worker's contract against a worker (including a home worker)5; or (3) any term of a relevant contract against an agency worker6.

 

No rights are conferred on a third party in the case of (a) a contract for the carriage of goods by sea7; or (b) a contract for the carriage of goods by rail or road, or for the carriage of cargo by air, which is subject to the rules of the appropriate international transport convention8. However, a third party may avail himself of an exclusion or limitation of liability in such a contract9.

 

1 Ie under the Contracts (Rights of Third Parties) Act 1999 s 1: see 'Rights of third parties'.1.

 

2 Ibid s 6(1).

 

3 Ibid s 6(2). The statutory provision referred to is the Companies Act 1985 s 14: see also [reference removed] 375.

 

4 1999 Act above s 6(3)(a). 'Contract of employment' and 'employee' have the meaning given by the National Minimum Wage Act 1998 s 54 (see [reference removed] 2, 156): 1999 Act s 6(4)(a).

 

5 Ibid s 6(3)(b). 'Worker's contract' and 'worker' have the meaning given by the National Minimum Wage Act 1998 s 54, and 'home worker' has the meaning given by s 35(2) (see [reference removed] 161): 1999 Act s 6(4)(a), (b).

 

6 Ibid s 6(3)©. 'Agency worker' has the meaning given by the National Minimum Wage Act 1998 s 34(1) (see [reference removed] section 160): 1999 Act s 6(4)©. 'Relevant contract' means a contract entered into, in a case where the 1998 Act s 34 applies, by the agency worker as respects work falling within s 34(1)(a): 1999 Act s 6(4)(d).

 

7 Ibid s 6(5)(a). 'Contract for the carriage of goods by sea' means a contract of carriage (1) contained in or evidenced by a bill of lading, sea waybill or a corresponding electronic transaction; or (2) under, or for the purposes of which, there's given an undertaking which is contained in a ship's delivery order or a corresponding electronic transaction: s 6(6). 'Bill of lading', 'sea waybill' and 'ship's delivery order' have the same meaning as in the Carriage of Goods by Sea Act 1992 (see [reference removed] sections 1560, 1585, 1586) and a corresponding electronic transaction is a transaction within the 1992 Act s 1(5) (see [reference removed] section 1587) which corresponds to the issue, indorsement, delivery or transfer of a bill of lading, sea waybill or ship's delivery order: 1999 Act s 6(7).

 

8 Ibid s 5(6)(b). 'The appropriate international transport convention' means (1) in relation to a contract for the carriage of goods by rail, the Convention which has the force of law in the United Kingdom under the Railways (Convention on International Carriage by Rail) Regulations 2005, SI 2005/2092, reg 3 (see [reference removed] section 526); (2) in relation to a contract for the carriage of goods by road, the Convention which has the force of law in the United Kingdom under the Carriage of Goods by Road Act 1965 s 1 (see [reference removed]); and (3) in relation to a contract for the carriage of cargo by air (a) the Convention which has the force of law in the United Kingdom under the Carriage by Air Act 1961 s 1 (see [reference removed] section 511); or (b) the Convention which has the force of law under the Carriage by Air (Supplementary Provisions) Act 1962 s 1 (see [reference removed] section 513); or © either of the amended Conventions set out in the Carriage by Air Acts (Application of Provisions) Order 1967 Sch 2 Pt B or Sch 3 Pt B (see aviation): 1999 Act s 6(8).

 

9 Ibid s 6(5).

 

5. Arbitration

 

Where (1) a third party's right to enforce a term1 ('the substantive term') is subject to a term providing for the submission of disputes to arbitration2; and (2) that agreement is an agreement in writing for the purposes of legislation relating to arbitration3, the third party is to be treated for the purposes of that legislation as a party to the arbitration agreement In respect of disputes between himself and the promisor4 relating to the enforcement of the substantive term by the third party5.

 

Where (a) a third party has a right to enforce a term providing for one or more descriptions of dispute between the third party and the promisor to be submitted to arbitration6; (b) that agreement is an agreement in writing for the purposes of legislation relating to arbitration7; and © the third party doesn't fall to be treated under heads (1) and (2) above as a party to that agreement8, the third party must, if he exercises the right, be treated for the purposes of that legislation as a party to that agreement in relation to the matter with respect to which the right is exercised, and be treated as having been so immediately before the exercise of the right9.

 

1 Ie under the Contracts (Rights of Third Parties) Act 1999 s 1: see 'Rights of third parties'.1.

 

2 Ibid s 8(1)(a).

 

3 Ibid s 8(1)(b). The legislation referred to is the Arbitration Act 1996 Pt 1 (ss 1-84).

 

4 For the meaning of 'promisor' see 'Rights of third parties'.2 note 2.

 

5 1999 Act s 8(1). See Nisshin Shipping Co Ltd v Cleaves & Co Ltd [2003] EWHC 2602 (Comm), [2004] 1 Lloyd's Rep 38.

 

6 1999 Act s 8(2)(a).

 

7 Ibid s 8(2)(b). The legislation referred to is the Arbitration Act 1996 Pt 1 (ss 1-84).

 

8 1999 Act s 8(2)©.

[patrickq1]

the taxman veiw of receivers

 

Back to basics: Insolvency (part 3)

 

 

http://taxjournal.com/tj/search/node/receivership

Edited December 2, 2010 by patrickq1

[patrickq1]

140A Unfair relationship

also not to forget if any of these properties were due to sub prime lending then any broker fees earned during the time the property was hived of into parcels must be declared and if you were unaware that these properties were subject to subprime you have a case simmallar to sillygirl and others ie gmac and others

patrickq1

[patrickq1]

Powers of an LPA Receiver

 

March 2001

69.13 Extent of powers

The statutory powers of the LPA receiver are limited to those set out in section 109 of the LPA and any such appointment might only be appropriate, for example, where the mortgaged property is a building, which is let out, and the mortgagee just wants to collect rent. The powers may be supplemented by any additional powers included in the legal charge itself and, in view of the limited nature of the LPA powers, it is normal for the mortgage deed to make provision for additional powers. The mortgagee can also delegate his powers to the receiver.

The receiver’s only direct powers under section 109 of the LPA are:

 

• the power to demand and recover all the income (which will include rent) of which he is appointed receiver, by action, distress or otherwise. He can give valid receipts for that income.
  

 

• the receiver shall, if so directed in writing by the mortgagee, insure and keep insured against loss or damage by fire, out of the money received by him, any building, effects or property comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature.
  

Notes: [LPA 25 s109] [LPA s109(3)][LPA 25 s109(7)]

69.14 Delegated powers

The LPA receiver has any other powers that may have been delegated to him by the mortgagee by virtue of section 109(3) of the LPA. The mortgagee’s contractual powers, which can be delegated to the receiver, in writing, under the LPA are:-

 

• A power to sell the mortgaged property on such terms as he thinks fit.
  

 

• Whilst the mortgagee is in possession, the power to cut and sell timber and other trees ripe for cutting, and not left standing for shelter or ornament. To exercise this power, a qualified arboriculturalist would be required as receiver.
  

 

• The mortgagor or mortgagee of land, whilst in possession, has the power to make leases subject to the terms laid down in this section.
  

The power of the mortgagee to make leases in this section can be delegated to the receiver in writing.

The mortgagee can accept a surrender of a lease but only for the purpose of granting a lease under section 99 above.

This power can be delegated to the receiver in writing.

Notes: [LPA s109(3)] [LPA s101(1)(i)] [LPA s101 (1) (iv)] [LPA s99] [LPA s99(19)] [LPA s100] [LPA s100(13)]

 

69.15 Contractual powers

An LPA receiver's powers are limited to the powers provided for under section 109 (discussed at paragraph 69.13) and the delegated powers provided for at section 109(3) (discussed at paragraph 69.14). It is because these powers are so limited that it will be rare for the official receiver to come across an LPA receiver. Such appointments are likely to be under a charge that was created at least 10 years ago when it was not uncommon for the contractual powers of a mortgagee to be very limited or where the charge arises under local government legislation as discussed at paragraph 69.34.

69.16 Fixed Charge Receiver

The official receiver is more likely to come across a fixed charge receiver. A fixed charge receiver is appointed under an express power contained in a provision in a mortgage deed, entered into by the mortgagor and the mortgagee. This deed may significantly widen the circumstances under which the mortgagee can appoint a receiver and considerably enhance the powers available to the receiver, e.g. the power to employ agents, which would include the ability to instruct solicitors, and the power to insure the property over which he has been appointed for all necessary risks, and not just fire (see paragraph 69.13). A fixed charge receiver has the powers given to him under the LPA and also the further contractual powers given to him under the mortgage or charge under which he has been appointed. The extent of these powers depends upon the documentation that appoints him, which should be examined in every case.

69.17 Application to court for directions

 

A receiver or manager of the property of a company appointed under powers contained in an instrument, or the persons by whom or on whose behalf a receiver or manager has been so appointed, may apply to the court for directions in relation to any particular matter arising in connection with the performance of the functions of the receiver or manager.

On such an application, the court may give such directions, or may make such order declaring the rights of persons before the court or otherwise, as it thinks just.

This allows the receiver or the mortgagee, in relation to company property, to apply to the court on matters of uncertainty about the appointment, powers and remuneration of the receiver.

Notes: [s35]

 

69.18 Discharge of expenses

Subject to the provisions of the LPA as to the application of insurance money (see paragraph 69.19 for details), the receiver shall apply all money received by him as follows, namely:

(i) In discharge of all rents, taxes, rates and outgoings whatever affecting the mortgaged property; and

(ii) In keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage under which he was appointed receiver, i.e. making any payments due in respect of prior charges; and

(iii) In payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage deed or under the LPA and the cost of executing necessary or proper repairs directed in writing by the mortgagee; and

(iv) In payment of the interest accruing due in respect of any principal money due under the mortgage; and

(v) In or towards discharge of the principal money if so directed in writing by the mortgagee;

and shall pay the residue, if any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver or who is otherwise entitled to the mortgaged property. Depending on the circumstances this could be a subsequent chargeholder or the owner of the property, perhaps the office holder in respect of the bankrupt or company in liquidation.

Notes: [LPA s109(8)]

 

69.19 Application of insurance money

 

The mortgagee can require that all monies received in respect of insurance of the mortgaged property be applied;

• to make good the loss or damage in respect of which the money is received; or
  
• towards the discharge of the mortgage money.
  

Notes: [LPA s108]

 

69.20 Remuneration

The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commission at such rate, not exceeding five per cent on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified, then at the rate of five per cent on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose.

Notes: [LPA s109(6)]

 

69.21 Liquidator can apply to fix the receiver’s remuneration

Where a company goes into liquidation, the liquidator may apply to the court for the fixing of the receiver’s remuneration. The court can vary any order it makes fixing remuneration. (For further details of when the official receiver should make such an application, see Chapter 56, Alternative Corporate Procedures, paragraph 56.61.)

Notes: [s36]

 

69.22 The landlord’s position

 

The Receiver has no power to disclaim a lease and is not personally liable for contracts entered into prior to his appointment, e.g. the lease. The landlord can pursue other parties to the lease or the remedies of forfeiture or distress notwithstanding the receiver’s appointment.

 

[back to Part 2 - Appointment] [On to Part 4 - The Receiver's Duties]

[patrickq1]

the last paragraph is very important and up for challenge for damages ,

Horsham Properties Group Ltd v Clark and another [2008] EWHC 2327 (Ch), [2008] All ER (D) 58 (Oct)

 

 

Chancery Division, Mr Justice Briggs, 8 October 2008

The exercise of a statutory power of sale under s 101 of the Law of Property Act 1925 (LPA 1925), after a relevant default by the mortgagor, is not a deprivation of possessions within the meaning of Art 1 of the First Protocol to the European Convention on Human Rights (the Convention).

Tom Poole (instructed by SJ Newman, Harrow) for the claimant. Victoria Williams (instructed by Neves Scott, Dartford) for the second defendant. Sam Grodzinski (instructed by the Treasury Solicitor) for the secretary of state for justice.

The claimant brought an action for possession of a property against the defendant. The defendant subsequently argued that s 101 of LPA 1925, providing for the statutory power of sale after a relevant default by the mortgagor, infringed her right to property under art 1 of the First Protocol to the Convention. The alleged breach arose out of the fact that the section permitted mortgagees to overreach the mortgagor’s rights in relation to the mortgaged property by selling it out of court, without first obtaining a court order for possession, or an order for sale.

Briggs J:

Article 1 of the First Protocol to the Convention provided: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law....”

Section 101 of the LPA 1925, so far as material, provided: “(1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely):— (i) A power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof...(iii) A power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or any part thereof...(3) The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any other section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall, as far as may be, operate in the like manner and with all the like incidents, effects, and consequences, as if such variations or extensions were contained in this Act. (4) This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed and to the provisions therein contained...”

His lordship held that s 101 served to implement rather than override the private bargain between mortgagor and mortgagee. Its history, going back to 1860, was that it supplied a convenient power of sale out of court to mortgagees in substitution for the parties having (as they routinely did before 1860) to spell out such a power in every legal mortgage. It was in substance a form of conveyancing shorthand designed to implement the ordinary expectations of mortgagors and mortgagees while reducing the costs and delays of conveyancing. Far from overriding the parties’ private bargain, it implemented and gave effect to it. It was in that respect nothing to the point that the modern facilities of photocopiers and word processors enabled the parties to modern mortgages to spell out private powers which overlapped or replaced the convenient statutory powers in s 101.

Furthermore, all the statutory powers in s 101 were expressed to be subject to contrary intention. Section 101(4) provided that: “This section applies only if and as far as a contrary intention is not expressed in the mortgage deed, and has effect subject to the terms of the mortgage deed and to the provisions therein contained.”

That sub-section on its own demonstrated that s 101 served rather than overrode the parties’ bargain. It was as far removed from the concept of state intervention into private rights through overriding legislation, which lay behind Art 1 of the First Protocol, as it was possible for legislation to get. It was neither rigid, arbitrary or discriminatory, and its effect was apparent on the face of s 101.

Fallen argument

It followed that the defendant’s argument under Art 1 of the First Protocol fell at the first hurdle. The exercise of a statutory power of sale under s 101 after a relevant default by the mortgagor was not a deprivation of possessions within the meaning of Art 1 of the First Protocol and, a fortiori, the exercise by receivers appointed and acting under purely contractual powers in overriding the defendant’s equity of redemption by contracting to sell the property could not be either.

His lordship left for another occasion the more difficult question of whether or not a sale in breach of the terms of a mortgage (for example in the absence of any default by the mortgagor), relied upon by the purchaser under s 104(2)(a) might engage Art 1 of the First Protocol. In such a case the sale would overreach the mortgagor’s equity of redemption without any justification, as between the parties to the mortgage, and leave the mortgagor to a remedy in damages against the mortgagee.

[patrickq1]

if it can be proved that you had caught up with the mortgage ie through rent repayments etc ,then you can sue for damages and use the 1st protocol under the human rights act

also if you are being denied the data you require you can most deffinitely enter a N244 into court and ask for all the data to be produced any like minded person would excpect this but with these LPA's they seem to be acting outside the Law concerning keeping you upto speed with facts and figures

so first call now is to issue a N244

patrickq1

[patrickq1]

On such an application, the court may give such directions, or may make such order declaring the rights of persons before the court or otherwise, as it thinks just.

This allows the receiver or the mortgagee, in relation to company property, to apply to the court on matters of uncertainty about the appointment, powers and remuneration of the receiver

(iii) In payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage deed or under the LPA and the cost of executing necessary or proper repairs directed in writing by the mortgagee

69.20 Remuneration

The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commission at such rate, not exceeding five per cent on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified, then at the rate of five per cent on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose

The Receiver's duties

March 2001

69.23 To mortgagee

The receiver’s primary duty is to deal with the assets under his control and realise them for the benefit of his appointor. All other powers or duties are secondary to that primary obligation (In Re: Downsview Nominees Ltd v First City Corporation Ltd [1993] BCC 46).

69.24 To prior mortgagees

The receiver must account to any prior mortgagee for all sums that become due under that prior mortgage.

69.25 To the mortgagor

The receiver owes a duty to the mortgagor to use reasonable skill and care in obtaining a proper price for the property and to manage the property with due diligence (In Re: Medforth v Blake [1999] 3 All E.R. 97).

69.26 To guarantors

The duties of a receiver have been held to extend to the guarantors of a debt due to a debenture holder (Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410, CA). This duty does not extend to the general body of creditors.

69.27 Delivery of accounts

A receiver of a company’s property must deliver receipts and payments accounts to the Registrar of Companies for the period of twelve months from his appointment and for every subsequent six-month period. The accounts shall be delivered within one month (or such longer period as the registrar may allow) after the expiration of 12 months from the date of his appointment, and of every subsequent period of 6 months, and also within one month after he ceases to act as receiver or manager.

Notes: [s38]

 

69.28 Notification of appointment

When a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver or manager or the liquidator of the company, being a document on or in which the company's name appears, shall contain a statement that a receiver or manager has been appointed.

Notes: [s39]

[patrickq1]

If a receiver has been appointed invalidly, because of a defect in his appointment or a defect in the security, he is a trespasser in law and both he and his appointor may be liable in damages.

the Power of Atorney document if it has not been signed by the appointed members then the receiver is tresspassing ?

[patrickq1]

this is an intresting one the property forum serious complaints against LPA's

http://www.property-forum.co.uk/

[chillinlong]

Hi Patrick

 

Thanks for all the above, I am trying to absorb the info. Wish there was solicitors on the board of consumer group that can act on these matters, would be brilliant for class actions.

[patrickq1]

there is a group of sols who do class actions will look in later when i find the web page lol lost it too tired last night just switched off without saving data

[patrickq1]

go to property forum ive put link above

[chillinlong]

Thank you I have already spoke to them, I will have to update and see if there is any news.

[persecuted]

Hello, I am new to this site and situation and am horrified to hear the stories about ME! We have just found ourselves up the creek with them and will take any advice offered! I am also so flabbergasted by the fact these situations can occur, once this over, would like to help to stop this practice of LPA receivers ruining peopls lives!

 

Our story - happily working away in the BTL business for ten years. ME took over a number of mortgages from another lender a few years ago. At the time we had historic arrears that the initial lender was happy with. We continued to make repayments, keeping the historic arrears (some under 2 months in arrears!). Recently ME became not happy with this as we entered into a payment plan which unfortunately we broke but continued to make payments to the level we could. Lots of phone calls later (amounting to harrassment) which we did not repsond to fully....( we did try but when they phone every day, its hard!). A few weeks ago we had a letter warning of LPA...we instantly made some much larger payments. LPA's subsequently still instructed across the board. We had just arrived at a situation to pay off all the arrears so did so........but as will be unsurprising to many of you, LPAs were not called off.

 

So as at today, we are trying to be 'compliant' (which just seems to mean nice!) and proving we wont end up in this situation again, providing all information asked of us...(we dont have any arrears now) ME are assessing the situation and the LPAs are supposed to be leaving alone for now.......but they are pushing on frantically racking up costs and ruining our relationship with our tenants. Also half of our properties werent two months in arrears when LPA were instructed which we thought could easily be rectified but this is also being assessed!!

 

We do have a solicitor but are worried about being too aggressive (as this whole situation seems to be based on free will of ME). Any thoughts hugely appreciated and as said, i'm very keen to stop this LPA abuse/nonsense altogether.

[diddled]

Have you been provided with a deed of assisgnment in respect of the mortgages MX took over?

 

Also have you sent MEX a SAR?

 

Who are the Receivers?

[persecuted]

thanks diddled, have sent you a PM.

[diddled]

Not received a PM persecuted

[patrickq1]

if you have cleared the arrears you need to issue the N244 urgentley ,as this will not go away you need a judge to instruct these dogs once and for all

here is a case where they are being unfair and the FSA want you to contact them with this problem they have promised me they would look into this ,

patrickq1

 

part of your arguement in the court in front of a judge will be this =

The UK House of Lords has refused to imply a term requiring the

Lender to act reasonably in determining a material adverse change

and instead there is an obligation to act in good faith (see

Concorde Trust v Law Debenture Trust Corporation (2005) 1 WLR

1591). A breach of an obligation of good faith would require a

party to show that there was dishonesty or an improper motive. To

some extent, however, the notion of good faith imports some element

of materiality and substance to the change in question. A lender is

therefore not necessarily obliged to act reasonably in the sense

that every other lender would take the same view but it must be

able to stand over the decision from its own perspective looking at

the facility itself, to its particular circumstances and the

decision to terminate. If a lender were to seize on some relatively

minor or trivial issue as a basis for termination, or took a global

view which meant it did not look at the particular circumstances at

all, the point could certainly be made against it.

 

Edited December 3, 2010 by patrickq1