Animal vs BM

[AnimalMagic]

in Bentley vs Blemain, Bentley argued s140 and I understand his was a mortgage.

 

Your mortgage was self certified, and yet you are trying to have it written off because you gave false information on your application. Do you know that this could impact upon yourself? You could be charged for obtaining money through deception/misrepresentation.

 

Did you actually read my first post? I was ill at the time. 18 months previously I had attempted to get some work and I was asked some techy questions on something I am an acknowledged expert on - I wasn't able to answer them. Do you really think I was in a fit state to agree anything 18 months on from that? My wife collapsed and was taken to hospital just a month or so after the mortgage was agreed, such was the state we were both in.

 

Unfortunately for you, the BS were protecting their interests in making the payment, you need to make a claim against the management company yourself to recover the funds they were entitled to claim, and to how that it should be paid back to you.

 

Again you have failed to read what I said. There was no possibility of forfeiture. You are claiming that the BS have the right to impose a liability that the courts cannot, and charge me interest on money I don't owe? If that is not the very definition of unfair, I don't know what is...!

 

Regarding the T&C's are they correct ones with your original application? I am sure that if the specific clause is not correctly referred to, there will be a clause that permits the paying of SC/GR/LA to protect the BS security.

 

I haven't found any clause that say they can do this. It is not unknown for financial institutions to impose T&C that they have previously left out. Regardless, they cannot impose a liability that doesn't exist.

 

As I've said earlier, self certified mortgages aren't and weren't checked to see an income. It was self certified that you could maintain the payments.

 

I believe the OFT disagree with you. They state there is a responsibility to ensure that the mortgage is sustainable. In addition one of the Lords stated ‘Lending to those who are already overcommitted with debt is irresponsible. I trust that this new provision will incentivise lenders and potential lenders to take a good deal of care in checking out the borrower's means to repay and the extent to which repayment may be inhibited by the obligations that the borrower has to other lenders'

[AnimalMagic]

After much research questioning and study, it appears ettubrute is incorrect, s140 does apply...

 

correction:

16 7A Nothing in this section affects the application of sections 140A to 140C.”

Edited July 20, 2010 by AnimalMagic
Corrected information

[Pat2010]

Hi,

Not sure if this helps but on my court papers (Mortgage pre-action protocol checklist) l found this:

 

'Is there an unresolved complaint by the defendant to the Financial Ombudsman Service that could justify postponing the possession claim'

 

l remember being told something around the lines of, providing you had at least a reference number from the FOS then it would show that a complaint was in the works.

 

l could be wrong though, lm sure someone will correct me if l am

[AnimalMagic]

Removed incorrect info

Edited July 20, 2010 by AnimalMagic

[Pat2010]

Hello again,

No, don't let them get away with the charges, lm going to start that ball rolling very soon.

 

Yes, your right providing an offer (reasonable) is made and you have proof that you can maintain that offer then you would probably get a suspended repossession as l did yesterday. lf you have time to read through my post (Capstone Mortgages) there is plenty of help l was given that will help you too.

[AnimalMagic]

Thanks to Pat for her comments and support

 

The 21st has come and gone and I still have my home

 

Shortly after I arrived at court and logged in with the Usher, I was approached by a Shelter solicitor and we went into a room and had a discussion. He was very interested in my s140A defence and we had a very useful discussion. It may be we will be getting further help from them, as there's little precedence and they seem to be interested in establishing a useful precedence.

 

One point that may be useful to others is that we had twice been wrongly advised that we were ineligible for legal assistance via Shelter as the equity in our property is > 100,000. Apparently the sole criteria in repossession cases is that you must have

 

The Judge seemed to be in a mood - the worst Judge I have had in any of the cases I've been involved. However I stood my ground and there was no wriggle room so she adjourned to allow the other side to respond. She seemed to have little or no knowledge of S140A, surprising considering it's been in legislation for 3 years now...

 

Other side claimed I had refused to speak to him which was not true, we were discussing thing with Shelter when he was announced and we were called in shortly afterwards. I think they should be fined for lying to the court!

 

Another snippet that may be useful for divorced women who are being pursued for arrears or shortfalls, the Shelter guy mentioned there was a recent case where a woman successfully claimed that her husband was having an affair at the time she signed the mortgage, and that if she had known this she would not have signed. I was already aware of a possible defence where wives have been forced into agreeing to a mortgage by a bullying husband, but I thought this case was interesting - don't have a specific reference I'm afraid.

 

Anyway, the first tiny step has been taken...

[AnimalMagic]

There seems some debate if section 16.7A CCA 1974 is in force. Can anyone point me to a definitive source? Any suggestions how I persuade a Judge who is adamant that 'her copy' has no such provision?

 

I have checked here http://www.statutelaw.gov.uk/content...filesize=55520

 

and it shows a warning 'Warning: This content may not be up-to-date. Please check the Update Status Warning message at the top of the Results within Legislation page.' I checked the table of modifications and cannot see anything beyond 2008 that refers to s16.7A.

[AnimalMagic]

What is the difference between a regulated and an unregulated mortgage?

[littledotty27]

What is the difference between a regulated and an unregulated mortgage?

 

Regulated mortgage agreement under the Financial Services and Marketing Act 2000.

 

This Act gives rise to the following:

 

Entering into, advising on, administering and arranging regulated mortgage contracts (including arranging and advising on variations to such contracts) are regulated activities under the FSMA (together with agreeing to do any of these things). Any person carrying out a regulated activity, unless an exemption is available, must be authorised by the FSA, with specific permission required from the FSA to engage in the activity. If requirements as to authorisation and permission of lenders and brokers or as to issue and approval of financial promotions are not complied with, a regulated mortgage contract will be unenforceable against the borrower except with the approval of a court.

[AnimalMagic]

Thought I'd post these separately from the original thread as it may help those subject to repossession:

 

What does anyone make of this ?

 

Basically a County Court Judge flagged this up as a reason to grant a temporary stay of eviction. But, although para 4 & 50 of the judge say it doesn't apply to private property owners but only public property owners, it does actually apply it was just deliberately ignored in this judgement so as not to make this judgement even more complicated & fuzzy.

 

You need to read the whole judgement to understand it all. But then, as the country court judge said, no one quite understands it yet as it is unclear & has huge implications which mean :

 

Every repossession (not just public landlord tenancies) hearing has to consider the individual facts of that particular case in order to consider the concept of 'proportionality' according to the European Court Human Rights article 8.. If this has not been done, it breaks the ECHR article 8 and is therefore unlawful.

 

THEREFORE, WHEN PROPORTIONALITY IS CONSIDERED, THE FACTS OF EACH AND EVERY SEPARATE CASE MAY THEN GIVE THE COURT MUCH WIDER DISCRETION TO MAKE ORDERS OTHER THAN AUTOMATIC REPOSSESSION AS HAS BEEN THE CASE PREVIOUSLY.

 

IN OTHER WORDS, A COURT MAY DECIDE A SUB-PRIME LENDER HAS BEHAVED DISPROPORTIONALLY (THEY ALL DO, AS WE KNOW) AND THE JUDGE MIGHT MAKE AN ORDER LESS FAVOURABLE TOWARDS THE LENDER WHICH HAS NOT BEEN POSSIBLE UNTIL THIS RECENT PINNOCK JUDGEMENT.

 

The Pinnock judgement - http://www.supremecourt.gov.uk/docs/UKSC_2009_0180_Judgment2.pdf

 

21. This appeal gives rise to four main issues, of increasing specificity. The first is

whether the jurisprudence of the European Court of Human Rights (“EurCtHR”)

requires that, before making an order for possession of property which consists of a

person’s home pursuant to a claim made by a local authority (or other public

authority), a domestic court should be able to consider the proportionality of evicting

that person from his home under article 8, and, in the process of doing so, to resolve

any relevant factual disputes between the parties. We deal with that question in paras

22-54 below and answer it in the affirmative. The second issue (paras 55-64 below) is

what this conclusion means in practice in relation to claims for possession, and related

claims, in relation to residential property. The third issue (paras 65-107 below) is

whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be

interpreted so as to comply with the requirements of article 8, or whether at least some

aspects of that regime are incompatible with the occupiers’ article 8 Convention

rights. The fourth issue (paras 108-132 below), which requires a fuller consideration

of the facts of this case, is how the appeal should be disposed of in the light of the

answers on the first three issues.

First issue: what does the Convention require of the courts?

 

The nature of the issue

 

22. So far as relevant, article 8 of the Convention provides:

 

“1. Everyone has the right to respect for ... his home... .

2. There shall be no interference by a public authority with the exercise

of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of ... the economic

well-being of the country, for the prevention of disorder or crime, ...or

for the protection of the rights ... of others.”

It is also appropriate to refer to article 6, which, so far as relevant, provides:

 

“In the determination of his civil rights and obligations ... everyone is

entitled to a fair ... hearing ... by an independent and impartial tribunal

established by law.”

 

23. The argument on behalf of Mr Pinnock is as follows.

(a) At any rate where the person seeking possession is a “public authority”, a

court invited to make an order for possession of a person’s home must be

satisfied that article 8 is complied with.

(b) Accordingly, in the present proceedings, Judge Holman had to satisfy

himself that the order for possession which he was being invited to make

complied with article 8.

© Article 8, when read together with article 6, required the Judge, as the

relevant independent tribunal, to be satisfied that the order for possession (i)

would be “in accordance with the law”, and (ii) would be “necessary in a

democratic society” – i e, that it would be proportionate.

(d) The order for possession was “in accordance with the law” since it was

made pursuant to the provisions relating to demoted tenancies in the 1985 and

1996 Acts, which are in principle unobjectionable under article 8.

(e) However, Mr Pinnock was not given the opportunity to raise with the court

the question whether the order for possession was, in all the circumstances of

this case, proportionate. Therefore article 8 was violated.

(f) Further, in order to determine proportionality, the court should have had

power to resolve for itself any issues of fact between the Council and Mr

Pinnock, and to form its own view of proportionality, rather than adopting the

traditional judicial review approach taken by the Judge.

(g) Either the legislation should be interpreted to have the effect contended for

in points (e) and (f), or this court should make a declaration of incompatibility.

 

 

Second issue: the application of this conclusion in general

 

 

55. The conclusion that, before making an order for possession, the court must be

able to decide not only that the order would be justified under domestic law, but also

that it would be proportionate under article 8(2) to make the order, presents no

difficulties of principle or practice in relation to secure tenancies. As explained above,

no order for possession can be made against a secure tenant unless, inter alia, it is

reasonable to make the order. Any factor which has to be taken into account, or any

dispute of fact which has to be resolved, for the purpose of assessing proportionality

under article 8(2), would have to be taken into account or resolved for the purpose of

assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that

section, like proportionality under article 8(2), requires the court to consider whether

to order possession at all, and, if so, whether to make an outright order rather than a

suspended order, and, if so, whether to direct that the outright order should not take

effect for a significant time.

 

Your not the only one struggling AM... I am right there beside you, so to speak

 

Article 8

Right to respect for private and family life

 

1.Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

A mortgage lender is not, unlike for example a Court, hearing the repossession proceedings a public authority to which article 8 applies.

 

 

Public authorities

Acts of public authorities.

 

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

(2)Subsection (1) does not apply to an act if—

 

(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

 

(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

(3)In this section “public authority” includes—

 

(a)a court or tribunal, and

 

(b)any person certain of whose functions are functions of a public nature,

 

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

 

The intention of Parliament was that a wide range of bodies performing public functions would fall within the obligation under section 6 to act in a manner compatible with the “Convention rights” established under the Act.

 

However, while the Convention had been designed to protect the individual from abuse of power by the State, the Human Rights Act was enacted at a time when the map of the public sector had been redrawn, as privatisation and contracting-out had, over several decades, increased the role of the private and voluntary sectors in the provision of public services. This development was acknowledged and considered by those who drafted and debated the Act. In particular, it was clearly envisaged that the Act would apply beyond activities undertaken by purely State bodies, to those functions performed on behalf of the State by private or voluntary sector bodies, acting under either statute or under contract. The Act was therefore designed to apply human rights guarantees beyond the obvious

governmental bodies. Section 6 identified two distinct categories of “public authorities” which would have a duty to comply with the Convention rights.

 

First, under section 6(3)(a), “pure” public authorities (such as government departments, local authorities, or the police) are required to comply with Convention rights in all their activities, both when discharging intrinsically public functions and also when performing functions which could be done by any private body. So, for example, a local authority must as a pure public authority comply with the non-discrimination standards imposed by Article 14 of the Convention not only in its provision of public housing but also in its dealings with building contractors.

 

Second, under section 6(3)(b), those who exercise some public functions but are not “pure” public authorities are required to comply with Convention human rights when they are exercising a “function of a public nature” but not when doing something where the nature of the act is private (section 6(5)). Only those bodies which fall within either of these categories (“pure” or “functional” public authorities) have a direct obligation under the Act to comply with Convention rights. The meaning of “public authority” is therefore crucial to securing comprehensive human rights protection.

 

I am assuming that as:

(3)In this section “public authority” includes—

 

(a)a court or tribunal, and

that the Court has to take into account s8 when making judgement, but only if the defendant raises it.

 

In terms of proportionality, would it be proportional that missing a couple of £300/month payments (as an example) result in losing your home?

 

Possibly more importantly, if the balance of the account was in dispute due to arrears charges, this dispute would need to be resolved before possession could be given... Would any BS be willing to try and justify their arrears charges in a Court?

 

At least that's as best I can interpret it... I need more time to try and understand...

 

I think that is the most beneficial way to look at it.

 

Whilst article 8 does not apply to the lender as it is not a public authority, it does apply to the Court itself as a public authority.

 

This seems to be the opinion expressed here:

 

Although a private landlord is not a public authority, the court is a public authority. In Zehentner –v- Austria [2009] 20082/02 ECHR 1119 the European Court held, in a case involving two private individuals, that where there was no assessment of the proportionality of the decision to sell the property in question, the individual’s Article 8 rights had been violated. A similar statement was made in Belchikova*. This is in contrast to an earlier decision*. Unfortunately, in Pinnock, the Supreme Court did not decide whether Convention rights could be enforced against private landlords. Until there is a decision, such landlords may find that defendants rely on Article 8 in mandatory possession claims arguing that they should be able to argue that it is not proportionate to grant a possession order, and domestic law is not compatible with Article 8. This will result in additional costs and delay as only the High Court (not the County Courts) can determine incompatibility issues. If a proportionality test is ultimately introduced it will make it harder for private landlords to obtain possession as they might for the first time have to argue that it is proportionate to make a possession order.

[rebel11]

Good Stuff AM.8)

[AnimalMagic]

Is a clause in a mortgage agreement that requires immediate repayment of the entire mortgage amount, if a single payment is missed or late, an unfair term?

Opinions?

[AnimalMagic]

CPR 55.3.1 states ' The claim must be started in the county court for the district in which the land is situated'. If the claim is started in another court, in a different county, and not transferred to the local court, would this be enough to stop proceedings?

 

Must implies mandatory, so if it hasn't been started in local court, then it cannot proceed...?

[toddle2u]

It could well be but it wouldn't stop them re-issuing in the correct court so would only delay matters IMHO

[BRIGADIER2JCS]

Once the paper work is completed the normal action if the case is defended

it will automatically be transferred to your local court.

The Northampton Court is just a bulk issuing centre.

[AnimalMagic]

Wasn't started in Northampton court, in an ordinary court, many miles from the property and nowhere near classed as 'local'.

[BRIGADIER2JCS]

Must have been the court local to the claimant the transfer to your local court will still happen,

if it ends up going to trial.

[AnimalMagic]

Nope, Claimant and their solicitor are even further away than defendant... and there have been three hearings so far, much costs for claimants solicitors. Nobody can figure why the claim was started there and not the local court. I think maybe there is a case for a costs claim... Any thoughts...?

[BRIGADIER2JCS]

Did you dispute the allocation of the court location prior to the hearings.

[queensclose]

is this a tenant eviction or mortgaged property

[AnimalMagic]

Defendant was unaware of the CPR requirement until a few days ago.

 

It's a mortgage repossession.

[BRIGADIER2JCS]

Which court was this issued from and where is the claimants HQ?

[AnimalMagic]

Not sure why that'd be relevant...? Claimant is long way away, as are solicitors. They have been sending solicitor/barrister from London. Claimant's local court is much closer to London than the court the claim has been initiated in and the hearings to date have been held. Defendant has been travelling across another county to attend, when local court is a few miles away.

[BRIGADIER2JCS]

I find it strange that this has not been moved to your local court,I think you

could challenge this on the fact of unreasonable costs involved, which of course you

may have to pay!

[AnimalMagic]

That was my thought.

 

Also killing repossession proceedings would mean defendant can make an offer to pay mortgage + something toward arrears and not have a suspend repo order hanging over them. If claimant starts a fresh claim in local court, then that would be unreasonable and breach of pre action protocol.