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    • Great thanks, will leave 2 in then, replace 3 and I think its good to go.    This is exactly what I have in my word file ready to send, I think im happy with it and can send to mcol monday morning. Any further thoughts or things to update please let me know.   Again thank you both for your help, really is priceless.         Defence:   1.     The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.    2.     The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.   3.     Paragraph 1 is noted. It is accepted I have in the past had agreements with New Day LTD RE Aqua. I do not recall the precise details or agreement nor the claimant either having failed to plead an agreement/account number within its particulars of claim and have therefore sought verification from the claimant.   4.     Paragraph 2 is noted but until such time the claimant can clarify the agreement account number any breach has yet to be proven.      5.     I am unaware of any legal assignment or Notice of Assignment allegedly served by either the Claimant or New Day LTD RE Aqua pursuant to the Law of Property Act 1925.   6.     It is denied with regards to the Defendant owing any monies to the Claimant. The Claimant has failed to provide any evidence of the Agreement/Assignment/Default notice or Termination requested by CPR 31. 14, and will shortly be in default of my section 78 request, therefore the Claimant is put to strict proof to:   (a)   show how the Defendant has entered into an agreement and; (b)   show and evidence the breach and service of a Default Notice pursuant to sec 87(1) CCA1974 on which the Termination referred to relies upon. (c)   show how the Defendant has reached the amount claimed for; and (d)   show how the Claimant has the legal right, either under statute or equity to issue a claim;   7.     As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.   8.     On the 17th of November I requested to The Claimants Solicitors, Mortimer Clarke by way of a CPR 31.14 copies of the documents referred to within the Claimants particulars to establish what the claim is for. Mortimer Clarke have failed to fulfil my CPR 31:14 request.   9.     On the 16th of November I made a section 78 legal request to the claimant for a copy of the Consumer Credit Agreement. The claimant has as of of 06/12/21 failed to comply.   10.  By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
    • Hi just a quickie   Now in reference to my Post#2 here have they actually provided you with those policies that I pointed out and importantly a copy of there Public Liability Insurance?   If they haven't   Make sure and send them a little reminder adding to the letter in Post#32 that so far they have failed to provide these and you require clarification as to their reason for this failure     Dear Sir/Madam   Complaint Reference: XXXXXXXXXXXXXXXXXXX   Further to my recent letter about this matter Dated XX/XX/2021 I would also like to add that so far you have still failed to provide the following:   Copy of your Compensation Policy (not the leaflet) Copy of your Complaints Policy (not the leaflet) Copy of your Customer service Charter/Policy (not the leaflet) Copy of your Public Liability Insurance (not the leaflet) Copy of Repairs an Maintenance Policy (not the leaflet)   I asked for these is my letter to yourselves dated XX/XX/2021, to date you have failed to respond to this request nor is the Housing Association being Open and Accountable to it's Service Users and I require full clarification for the reason for this failure and when you are going to provide what I have requested.   If you refuse to provide these I require full clarification as to your reason with links to the relevant legislation and exactly which parts you are relying on for your refusal of my request.     Note: If they have answered this please ignore but from your responses I think they have tried to ignore this so you add this to put a rocket up their 'beep' so to speak.   You are more than welcome to the help it's what we are here for, you just look after yourself and take care     
    • The DVLA know less about POFA than my dog that died twenty years ago. They also never admit they have made an error.   Trading Standards would probably be a better avenue for you either on Council inaction on no pp thus appearing to aid and abet a PE scam, condoning PE committing an offence and allowing them to rip off the Council customers as well as financial impropriety by not insisting that PE pay for the requisite fees for permission. You could also complain to the ICO on the same grounds and get two investigations going.
    • I am surprised that POPLA found that your appeal had failed when Initial's response to the appeal had been withdrawn. There was no need for them to adjudicate. POP.LA should have agreed that you had won your appeal. I wonder if Initial  knew something that you and obviously POPLA didn't.  Ignore DRP. I was going to advise  you  write to Initial stating that as they had withdrawn their PCN on appeal so if DRP were acting on instructions from Initial they have breached your GDPR. However on second thoughts you may be best to send them a SAR first to get confirmation that they had withdrawn their claim before going for the breach.
    • so the eon A/C was never in her name anyway?
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the contract

Once a contract is signed, you would presume that the “deal is done” and the only concern for the future is the risk that one of the parties involved does not comply with its obligations. It can come as an unpleasant surprise however, when one party approaches the other claiming that the signed document does not accurately reflect what had been agreed and should be revisited.

Property relationships such as landlord and tenant or purchaser and vendor are particularly exposed to unexpected circumstances such as rental market fluctuations, cash flow problems, damage to property and so on. Facing such circumstances, a party may dust off its lease or other signed agreement in the hope of finding a solution to the problem. Sometimes the relevant provisions are poorly drafted and ambiguous; sometimes the agreement does not say what the party thought it did.

In this edition of Property Matters we consider the claims of construction and rectification and what evidence might persuade a Court to make a favourable decision.

Legal Principles: Construction of a Contract

Where the written document does not lead a party to a clear understanding of its rights or obligations, that party could ask the Court to “construe” the wording in a certain way. “Construction” refers to the process by which the Court determines the meaning and legal effect of a contract.

This is an objective exercise of establishing, “… the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. ICC v West Bromwich Building Society (1998)

When it comes to evidence, readers will be familiar with the parol evidence rule of contract, which states that where a contract has been reduced to writing, extrinsic evidence cannot be relied upon to “add to or subtract from, or in any manner to vary or qualify the written contract”.

The limitation on evidence specifically in construction cases was made very clear in the House of Lords judgment in the ICC case quoted above, “the law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent”.

Despite this clear instruction, the edges of what is admissible are still slightly blurred. The starting point in a construction case is to give words their ordinary meaning, as they are generally understood, in the context of the whole document. Although the meaning needs to be found in the document itself, the Court will consider all the circumstances surrounding the making of the contract when trying to ascertain the meaning. Accordingly, litigants will try to submit as much evidence of the background as they can. While it is true that extrinsic evidence is not admissible to alter the words in the contract, it can be used to assist in interpreting the objective meaning of the words in the written contract. See below Scottish Widows Fund and Life Assurance Society –v- BGC International (formerly Cantor Fitzgerald International) (2011)

Legal Principles: Rectification of a Contract

Parties come to Court seeking rectification, not to resolve an ambiguity in the drafting of the document (as in construction cases) but rather because the contract has been entered into following the mistake of one or both parties.

Where a contract, by reason of a mistake common to both parties, does not reflect the parties’ intention, the Court will rectify the contract. This remedy is also available where there has been a mistake by just one party as to the incorporation of the agreement in the contract, the other party knew of the mistake and did not draw it to the attention of the first party and it would be inequitable to allow the latter party to rely on the mistake.

When considering a claim for rectification, the Court needs to be satisfied as to the parties’ intentions and the nature of the mistake. As such, admissibility of evidence is far less restrictive than for construction claims and evidence of the negotiations leading up to the signing of the contract, including evidence of subjective intention is admissible.

Nevertheless, parties should be warned against flooding the Court with evidence in light of the comments in the Scottish Widows case discussed below.

Relationship between Construction and Rectification:

Woodford Land Limited -v- Persimmon Homes Limited (2011)

The Woodford v Persimmon judgment includes extensive discussion of the principles of both construction and rectification as well as showing how the two concepts inter-relate. The claim sprang from an ambiguity in an option agreement as to which party was responsible for the costs of affordable housing.

Woodford, the vendor, argued that the parties entered into the agreement in the belief and with the common intention that Persimmon, the purchaser, would be responsible for the costs, that the agreement (on its true construction) wrongly provided that the costs would be deducted from the purchase price and that the agreement should therefore be rectified. Persimmon agreed with the construction of the agreement but contended that it did in fact reflect the parties’ common intention (that Woodford should be responsible for the costs) and therefore did not require rectification.

As highlighted by Mr Justice Henderson, the pleaded case only asked the Court to answer the rectification claim, and not rectification as an alternative to a prior construction claim, which he would have expected. He pointed out a number of “tactical advantages” of seeking construction at the same time as, and in preference to, a rectification claim. These include the advantage of the Court hearing evidence strictly admissible only for the question of rectification and also the result of a favourable construction which would negate the need for rectification.

What Henderson J called the “unusual twist” in this case was that, (as provided for in the option agreement) the parties had already referred the question of construction to a third party for expert determination who had, on the basis of a concession made by Woodford, found in favour of Persimmon.

Henderson J regarded Woodford’s concession as “unwise” and the expert’s finding as binding only on the parties (through contract) but not on the Court. As such he took it upon himself, without either party wishing him to do so and almost without submissions, to construe the true meaning of the option agreement as a preliminary exercise.

The judgment concluded in favour (on the face of it) of Woodford, construing the agreement as imposing responsibility for the costs on Persimmon. However, this result left the agreement without need of rectification and accordingly Woodford (which was contractually bound by the expert determination) without a remedy, an extraordinarily unsatisfactory position.

Scottish Widows Fund and Life Assurance Society -v- BGC International (2011)

This case concerned a claim for both construction and rectification of a lease. Scottish Widows (for commercial reasons) held a sub-underlease that was over-rented by over £0.5 million per annum. Scottish Widows entered into a sub-sub-underlease with BGC International (formerly Cantor Fitzgerald International) (the “relevant lease”) which document contained a complicated rental provision at Clause 2© by which Scottish Widows subsidised the sub-sub-underlease rent for a period. Clause 2© contained an ambiguity which resulted in a potentially unfavourable financial outcome for Scottish Widows when the rental market became volatile.

Scottish Widows applied to Court asking the Court to construe Clause 2© in such a way as to reflect how it was meant to work or, in the alternative, to rectify the relevant lease. BGC’s case was that there was no “problem” with the relevant lease and that it recorded precisely what the parties intended. They said that the words should be given their ordinary meaning and that Scottish Widows suffered because the market did not move in the way they had anticipated and not because of any flaw in the document.

Mr Justice Norris set out in his judgment his approach to construction. He emphasised that “the pre-contractual negotiations of the parties must not be used as an aid to construction, save insofar as they may assist in the objective ascertainment of the common commercial or business object of the transaction.” Additionally, in support of adopting caution in reading the actual words in a sense different from their “natural meaning”, he put significant weight on the fact that “these were sophisticated parties advised by top quality transactional lawyers”.

Norris J admitted evidence as to the parties’ knowledge and commercial positions at the time of negotiating and finalising the relevant lease, as well as a contemporaneous supplemental agreement. Applying the principles referred to above (he concludes “the task is to draw together in a single process a number of indicators as to the meaning intended by the words used”), Norris J found in favour of Scottish Widows’ interpretation of the clause. He declined to insert or alter any words into the relevant lease in order to achieve this end.

Although he did not need to consider the rectification claim, having decided the case on construction, Mr Justice Norris went on to do so for completeness. On the evidence, he said that if he had not construed the relevant lease in favour of Scottish Widows, he would not have felt able to rectify the relevant lease in favour of Scottish Widows.

Norris J compared the heavy burden of persuading the Court to construe a document (despite the words “chosen carefully and deliberately by competent draftsmen”) with persuading the Court that “top-quality transactional lawyers” might produce a document which does not correctly record the bargain made.

As regards the use of extrinsic evidence, he stated that substantial material outside the document itself (showing the course of negotiations – attendance notes and circulating drafts) “might produce confusion rather than clarity”. He did not find a clear continuing common intention during that pre-contractual period, but rather that the parties were in constant negotiation as to the form and detail of the transaction until the very end. As such he found no “prior accord” and decided that the meeting of minds was in the engrossed document.

This is a logical conclusion on the facts but feels surprising in the context of rectification claims generally, where heavy reliance is often placed on the travelling drafts.

Final Comments

As can be seen from the above two cases, claims of construction and rectification are closely linked despite the respective legal principles being quite distinct. Construction is usually the preferable outcome for a claimant because it is likely to mean the document can stand without amendment and there are no knock on consequences such as, for example, where rectification is required in respect of a document dealing with registered land when land registration formalities need to be borne in mind in addition to the usual formalities of agreeing a deed of rectification.

Usually however, a claimant will not actually mind which of the claims is successful as long as the overall outcome is favourable. It will be in the claimant’s interest to persuade the Court that it has been wronged by events and allow the Court to find a way to right that wrong, whether it be through construction or by rectification. As such, applying for construction first and rectification in the alternative allows the claimant to give the Court a real flavour of the events leading up to completion without the admissibility restrictions.

The bizarre conclusion of the Persimmon case serves as a warning to draftsmen to be particularly careful about alternative dispute resolution clauses, and to avoid creating a situation where there is an obligation to go to expert determination on one issue alone where a more thorough and economical process would be to ask the Court to resolve the conflict as a whole at the outset.

The Scottish Widows case warns parties and transactional lawyers against complacency as to their prospects of rectification. Many transactions do document a “prior accord” and only minor amendments are made after that until completion. However where that is not the case, real attention should be paid to the final document in light of this judgment.

No doubt each case will turn on its facts. In any event, few lawyers would admit to allowing completion in anticipation of a rectification.

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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i do see your argument but also see the possibility of being able to go to court and ask for a judge to administer a stay in any future actions against all other properties and have the properties returned forthwith and to be put back into a position you would have been in before the Receiver was appointed , the failure to mediate your financial circumstances and come to a agreement that would be beneficial to both parties ,the receiver did his job on the one property and has now begun to disseminate the mortgagee's portfolio an create more problems with the mortgagee's properties , f which had no mortgage arrears but because the terms and conditions have not been laid before the mortgagees of what duties the receiver was lawfully employed to do , this results in an unfair contract or contracts since they are now linked which should not be the case

 

 

Unfortunately, I'm not aware of any statutory provision or court decision that supports your opinion.

 

And any application, by the original poster on this thread, for a stay in any future actions against all properties managed by this LPA receiver would be bound to fail, since the o/p is mortgagor of only one of the affected properties, so has no locus standi to make an application affecting any other property.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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Ed for info, a number of posters have more than one property with MEx, and they have indeed rolled up mortgages/arrears/shortfalls from a number of properties in BTL portfolios, which has had the effect of putting their other properties into arrears, ripe for them to repossess and sell. From memory I'm not sure if this applies to chillin.

 

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Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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yes i am sure it does apply to chillin, and the others Mungo's mum etc... i am aware they have no locus standi (

In British administrative law, the applicant needs to have a sufficient interest in the matter to which the application relates.[8] This sufficient interest requirement has been construed liberally by the courts. As Lord Diplock put it:[9]

"
t would...be a grave
lacuna
in our system of public law if a pressure group...or even a single public spirited taxpayer, were prevented by outdated technical rules of
locus standi
from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped."

 

 

but this has not stopped the receivers from adding this debt to the next property and so on, so this is the reason for our determination to find a path through this and stop once and for all the receivers and the mortgage companies from bankrupting the mortgagees ,the acts perpetrated by the receivers and mortgage companies must be brought to book and face a court to explain 1. why they are linking all properties to the first property ,

2 no legal documents relating to this receivership has ever been forthcoming despite attempts to see any documents

3.Mex and the receivers both ignore all pleas concerning the properties , ie, the need to negotiate

 

4. the receivers are now taking charge of all properties regardless whether in credit or arrears

i could go on because the way these receivers work is they are unregulated and a law unto themselves ,because they have been givien the POA makes whatever they do in there assumption Legal ,all the Landlords seek is natural justice and fairness ..

patrickq1

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Hi Guys

Does anyone have any idea what the legal standing is regarding the letting of a 'buy to let' to family members, or more to the point where the law stands regarding the repossession of such a property?

 

I know that letting to a family member is a breach of most lenders mortgage contract, but if I were (in theory) to have a family member renting a property from myself, then in law if a lender (or receiver) went for possession of the 'buy to let' property then would the court treat family as though they were living in a property that has a residential mortgage?

 

Sorry if I'm rambling a bit!

Reason I ask is that I overheard a barrister speaking about this and he said that the law would override a mortgage contract in court. I have asked the barrister in question for clarification regarding this, but have not heard back from him.

 

Any thoughts?

 

Many thanks

MM

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Hi Guys

Does anyone have any idea what the legal standing is regarding the letting of a 'buy to let' to family members, or more to the point where the law stands regarding the repossession of such a property?

 

I know that letting to a family member is a breach of most lenders mortgage contract, but if I were (in theory) to have a family member renting a property from myself, then in law if a lender (or receiver) went for possession of the 'buy to let' property then would the court treat family as though they were living in a property that has a residential mortgage?

 

Sorry if I'm rambling a bit!

Reason I ask is that I overheard a barrister speaking about this and he said that the law would override a mortgage contract in court. I have asked the barrister in question for clarification regarding this, but have not heard back from him.

 

Any thoughts?

 

Many thanks

MM

 

Hi MM. I would think that he is saying the mortgage contract must comply with the law. If it does that and you break the terms of the contract then you will be in the wrong.

 

I suspect that as chillin has found the tenants - even if family - could still be evicted.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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there was a recent case cant remember where i read such ,but will find it , the repossession order , or the order to evict would from what i can remember not be carried out ,i think the provisio is you would also have to occupy the same house , but i will look for it , but hopefully ed can clarify this

patrickq1

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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the receiver would undoubtedly have to issue a section 21 , and if you read the pinnock case this is what one of the judges said

,Perhaps the greatest significance of this decision arises from the comment by one of the judges:

" I do not believe that the ... Court would tolerate a regime under which a person can be deprived of his home by a public authority without being told the reason for this. Nor would I, for it is fundamentally unfair. The tenant must be informed of the reason for the [landlord's] action so that he can, if so minded, attempt to raise a proportionality challenge". In other words, an occupier should always be given reasons for the proposed eviction-even if this is not required by statute, eg when a notice to quit or s21 notice is used.

yes even though it was a public authority it still holds that the human rights act section 8 would come into play in your case MM but i am sure you would also have to be occupying the property and letting out a portion ...hopefully Ed can clarify this

patrickq1

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Hi All,

 

Sorry I have not been on a while, I have just read all the posts and thank you for all the comments.

 

Ed99 makes some seriously good reality points there! I think there is no way out of it really now. I can appreaciate Patricks views but Ed is right, once it is highlighted that for example someone like me has disregarded their comment for me to stay away from properties and I have been renting them out without their approval. In a judges eyes, he will not like it and decide there and then this is not going any further and to close the matter and let the bank take over ie get rid. But if I proved that they did give me approval at the beginning and then only decided to not allow me any more after the properties have gone into surplus, in other words they cannot string you along for two years and then decide to change their mind because the impossible has been reached.

 

I suppose it all depends on the day of court and what kind of judge is on ie which side he will listen to.

 

MX and WS seem adamant and are now selling all properties becoming vacant ASAP. But they do not actually justify for any other reason other than because there are too many repairs to do and it is not practical which is a load of crap.

 

What gets to me is the LPA is exercisable when the properties become two months arrears but what about when it goes into 3 months surplus? It is still exercisable I presume as it has been breached because it once went into arrears.

 

The worst thing about it I have been conned by MX and WS, to spend money, maintain and let etc on the belief that I might get the properties back one day but now that is not the case. I just wish they told me two years ago so I could have got on with my life and spend my time on other avenues.

 

MX and WS are full of lies and twist the truth all the time as they know they can get away with it because they are protected by the law.

 

Maybe it is time to call it a day and start again? No solicitor or barrister is hungry to take these cases on and I cannot really see out light at end of tunnel at the minute.

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Are your properties in surplus now? If so I don't understand how the receivers can be allowed to continue to manage your properties.

 

The only thing that I can think of is from the angle of fairness. You put the tenants in to get rent to pay your mortgage, which ws failed to do. I still find it hard to understand how this can be allowed.

 

Sorry chillin. I know this really isn't helpful but I'm just at a loss over this.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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May be wrong but I think its maybe a case of some properties in surplus and some in arrears. But as MX have consolidated all the individual mortgages into one portfolio account the account as a whole shows the portfolio in arrears.

 

There is some sort of clause in the T & C re redemption that basically says if the mortgagor wishes to redeem a mortgage, he must redeem them all. Even if the mortgagor himself doesn't wish to redeem, LPA receivers are in law, the agents of the mortgagor. Wonder if they are using this to their own advantage to wipe out the portfolios.

Edited by diddled
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Hi Dee, Caro,

 

Thanks for post. I am associated with a few portfolios, one is in surplus altogether. The rest are in a mix.

 

Interesting thing is though how they are refusing to hand the portfolio back in surplus. They are now using the excuse they gave us a chance to have funds transferred within accounts but have now withdrawn that option therefore if there is a surplus on the whole portfolio but arrears on one property whereas all the others are surplus and balance the arrears. We still cannot have control of the properties!

 

Great this isnt it

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What gets to me is the LPA is exercisable when the properties become two months arrears but what about when it goes into 3 months surplus? It is still exercisable I presume as it has been breached because it once went into arrears.

 

 

My understanding is that the mortgage would have to be in arrears on the date of the court hearing, by an amount greater than the equivalent of 2 mortgage instalments, for the power of sale to be exerciseable by the lender.

 

At all the hearings I attended, the Court's decision was dependent upon the arrears exceeding that amount. And the borrower, if he was represented, was generally quizzed at length by the defending Solicitor or Barrister over his ability to bring the arrears down to below that amount, and of course his ability to meet future payments as they fell due.

 

My understanding is that in practice the Court would only make an order for repossession if the arrears were still above that trigger amount on the hearing date. Obviously, the lender had only begun the court proceedings once the arrears had reached that level, there being no prospect of obtaining an order prior to that, but reaching that level of arrears was NOT a guarantee of the outcome - otherwise there would have been no point in holding a hearing at all, if merely exceeding the amount was all the lender had to show.

 

I came across cases in which there had been arrears, but no longer were. In that situation, the power of sale was no longer exerciseable. I don't know whether, technically, it had arisen and therefore always continued to exist; but it was no longer exerciseable.

Edited by Ed999

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Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

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Hi Ed,

 

The problem is the LPA route they do not have to go to court when appointed and when power of sale is exercisable therefore there is no power to supervise and ensure no corruption.

 

Thanks

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Ed for info, a number of posters have more than one property with MEx, and they have indeed rolled up mortgages/arrears/shortfalls from a number of properties in BTL portfolios, which has had the effect of putting their other properties into arrears, ripe for them to repossess and sell. From memory I'm not sure if this applies to chillin.

 

 

Thanks for this clarification.

 

Fundamentally, this is a matter of contract law: the key question is whether the mortgage contract allows the lender to appoint a receiver under the Law of Property Act 1925, and, if so, what powers the mortgage contract gives to the receiver.

 

A lot of the law will apply in every case, because it is contained in the 1925 Act. But a good deal of the detail will be contained in the individual mortgage deeds. For example, under section 93 of the Act, it is a matter for agreement in the mortgage deed as to the extent of a mortgage lender's power to consolidate two or more mortgages granted by the borrower:

 

Section 93. Restriction on consolidation of mortgages.

 

 

It might be worthwhile approaching a Barrister, by letter, and paying for a written professional opinion on the legal effect of one of the mortgage contracts with Mortgage Express, if the expense was shared between half-a-dozen posters.

 

It is possible to instruct a Barrister, even if there are no on-going court proceedings, under the Bar Council's Public Access Rules, without having to also incur the expense of instructing a Solicitor. And a written opinion [i.e. any form of written advice] is always much cheaper than representatiion at a hearing.

 

 

 

Further information: Law of Property Act 1925

 

Mortgage provisions in 1925 Act - Part III, Sections 85 to 120, Mortgages

 

S.109, 1925 Act - Appointment, powers, remuneration and duties of receiver

 

 

 

Bar Council's Public Access Rules: www.barcouncil.org.uk/.../Public Access Guidance for Barristers - March 2010.pdf

 

 

Find a Barrister - The Bar Council's directory

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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that is one of the major obstacles Ed ,their is no Court Hearing ,these LPA Receivers just go in gung ho and strip the assets of the mortgagee without any court order they are working on the presumption that once the POA is signed over to MX then they have cart blanch over all other properties without proof of linking each and every property ,they do not sign a single POA on each property they sign a single POA ,in my view this does not stack up and should therefore allow for the mortgagee to challenge the POA ,the POA only carries about seven lines of text that does not cover everything it is just assumed that the LPA have more authority than they are actually allowed , the LPA will not respond to the mortgagee neither will MX so bearing in mind that MX and the LPA are in breach of the CPR guidelines with every mortgagee and they knowingly are decimating the portfolio's as quickly as they can leaving the mortgagee financially unable to afford legal assistance and at the end of the day once they force the Mortgagee into bankruptcy it is to late and no legal challenge can then be entered, MX and the LPA's are more than aware that some of their tactics are unlawful but the mortgagee is unable to challenge them because they do not respond to any queries , they seem to think they are a law unto themselves , and ordinary mortgage works differently they would have to go to court , but with a buy to let mortgage their is no need whatsoever to go down the legal road of court action because they have a single peice of paper the POWER OF ATORNEY ,and in my veiw this POA is and can be challenged in law because it bears no resemblance of what the mortgagee believed it to be , "OH JUST SIGN THIS SHEET OF PAPER " ITS ONLY FOR OUR PROTECTION DONT WORRY IT DOESN'T AFFECT YOU ", this sort of mentality is what was never explained to the Mortgagee's just exactly what this sheet of paper and the consequences of what it meant ,until you reach this situation of a couple of mortgage arrears, all i can say is what Chilli and all other need is a way forward where they can find a credible challenge to the actions of both parties ie MX and the LPA ,so its finding a legal precedent then entering a challenge against them and also being able to put things back to what they where before the LPA raided their portfolio's ,so breach of contract on all properties that are not in arrears woud be a starting point ,sadly the FSA are aware of this and have been very very slow to start any sort of inquiry so no wonder chilli feels like throwing the towel in but i urge not to give up just yet ...

patrickq1

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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The problem is the LPA route they do not have to go to court when appointed and when power of sale is exercisable therefore there is no power to supervise and ensure no corruption.

 

 

That is not quite correct: the borrower has power to sue for breach of contract, in the same way under a mortgage contract as under any other type of contract, if there has been a breach of contract: i.e. a breach of any of the agreed terms contained in the mortgage deed, or any of the statutory terms set out in the 1925 Act.

 

It would be prudent to obtain professional advice as to what, precisely, those terms are, in relation to a Receiver. Then one could consider whether the practices of the lender have breached the applicable terms.

 

The Barrister might also be asked to draft a claim based on breach of a duty of care, if the contract contains an implied contractual duty for the lender or receiver to act in the interests of the borrower.

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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they do not sign a single POA on each property they sign a single POA ,in my view this does not stack up and should therefore allow for the mortgagee to challenge the POA ,the POA only carries about seven lines of text that does not cover everything it is just assumed that the LPA have more authority than they are actually allowed ...

 

but with a buy to let mortgage their is no need whatsoever to go down the legal road of court action because they have a single peice of paper the POWER OF ATORNEY ,and in my veiw this POA is and can be challenged in law because it bears no resemblance of what the mortgagee believed it to be , "OH JUST SIGN THIS SHEET OF PAPER " ITS ONLY FOR OUR PROTECTION DONT WORRY IT DOESN'T AFFECT YOU "

 

 

I wonder whether you are aware that an appointment of a Receiver is made under Part 3 of the Law of Property Act 1925, and not under the Powers of Attorney Act 1971?

 

Any legal challenge would be for failure to comply with the 1925 Act, or with the express terms of the contract set out in the mortgage deed.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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Yesterday I have actually issued high court proceedings against MX and WS to place an injunction on the properties... I recieved a letter from MX that basically told a load of codswallop denying all knowledge and relying on good ole Steve Molloy advice that I have interefered with the properties so they should not give it back to me! :mad2: Hence the reason why I have no choice but to pursue now.

 

For breach of contract, failing to hand back properties and for damages :-x.

 

I know people have contacted me for interest in class action, it seems the only way forward is to work on the negligence claim. We need interest from people who are willing to contribute towards the one set of solicitors to work on this now, this way will then make it more cost effective depending how many we can get financially and actively involved. We can then assign a solicitor to work on our case and build our evidence to effectively sue Walker Singleton and Mortgage Express collectively now!

 

This is the only action that will make them worry! More people jumping on board and willing to get stuck in the fight. We have had enough time, meeting and talking but now it is time to collectively and financially get involved. The more people who are willing to put in money and their information it will be cheaper for us all and it will be a stronger action against these corporations who are untouchable almost! It needs to be people in the same situation with Mortgage Express and recievers, we can do this if we get our heads together.

 

Please PM me whoever is interested in getting involved with a solicitor working on this and to actually contribute financially towards solicitor as we cannot do this for free but importantly cost effective. THE MORE THE BETTER!

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hello all

 

I am in a similar position and my experiance of WS is very similar to all other comments I have read.

I had 5 properties taken over by WS now have 2 left

All sold vastly undervalue:-x

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Welcome aboard Fdesa, sorry to hear of your troubles, now you have found this forum hopefully you can stay the course and chip in anything you think may be of interest to help the others, seems WS are having a ball at selling properties grossly undervalued yet they seem not to lose a single cent , it is time for action well done Chilli ,Ed no i was not aware of the two seperate documents ,hopefully Chilli you can now get all the paperwork from Both MX and WS ,now in this instance WS will have no option but to provide a full and detailed list of everything no doubt a CPR issued against them should show all data dont forget this must include all EMAIL DATA ,hopefully all the others can make a contribution and they do e mail you , i will be here if any research is needed and i excpect Ed to be able to help with some good advice

well done mate

patrickq1

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Has anyone here had an insurance claim though WS 's insurance cover?

 

ME told me they are supposed to have void cover for loss of rent

 

Also does anyone know how loss of rent is calculated?

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I have actually been the benefit of this policy

but they paid out just over £2600 I reported the loss in august 2009 they paid the sum to ME in Dec 2010 the house was not occupied from August till it was sold last month the average rent for a 2 bed house here in liverpool is 115 per week

I think the payment should have been way more more like 60 weeks @£115 and if until sold should have been more than enough to pay off my arrears and a surplus

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