Reposession fight hsbc business loan

[Guest purplemushroomfairy2]

Hello,

my husband signed a mortgage in 2004 for a business loan against our property.

I was coerced into signing, (long story but 'prima facia' evidence).

 

At no time were either of us told about an 'all monies clause'.

 

Business liquidated in 2005, trying for five years to get a meeting with the bank to organise a payment plan.

 

they won't see us and want the house.

 

Credit is now 0 because of all of their defaults and demands for immediate full and final payment.

 

In court this week, their barrister made a big point of saying that HSBC had not sold on the debts, but they have.

Most are in default because no CCA.

I have CCJ and Charge for one because CAB told me to admit it!!!!!!!!!

 

Can the bank still have an 'all monies charge' if they have sold the debts on?

 

Where do we stand with the 'pre action protocol'

ie, our home is a residential property and, other than a few hiccups due to unemployment

we have been making overpayments on the mortgage for 18 months voluntarily.

 

We can now pay the debt off over about 15 years,

their solicitors are arguing that they will argue that the judge does not have jurisdiction

- does that mean that they do.

 

So messed up and confused,

can't get the legal insurance to pay up what do we do.

 

Mananged to get unitl next April.

 

thinking of just selling up and starting again.

[maroondevo52]

Hello and Welcome, purplemushroomfairy2.

 

I'm going to move this thread to our Reposessions Forum, I'll see if another Mod Ell-enn can help.

I'll send you a Private Message with a link to the moved thread, check your 'Notifications'.

 

Regards.

 

Scott.

[Guest purplemushroomfairy2]

Hello,

need some advice,

 

defences going in on 27th October.

I am finding it hard to get information on 'all monies clause',

I understand now, that the claimant can lump all personal debt together,

however, can they do that if the main debt is a buisness loan and the other debt is seperate?

 

Also, if someone in that organisation has sold off about 35K worth of personal debt to disreputable £$*****'s

(who cant prove they own the debt but succeed in messing up your life anyway with CCJ's etc)

can the claimant STILL caim all monies.

 

was rather hoping that it would 'null and void' the clause and we might be able to pay them back without becoming homeless!

 

Have had a delve in chitty but the court charges a fortune for photocopying!

 

Any guidance and references to chitty would be great, would love to wipe the smile of the smug £$$$%**'s face again!

[dpick]

Hi I am no expert they will be along later but I believe that a creditor cannot lump all debts together they have to prove that each debt can be legally enforced so if they did lump them together then you prove one debt unenforceable then to me the total debt would be unenforceable.

 

dpick

[AndyOrch]

A recent decision of the Court suggests a retention of title clause (commonly referred to as a ROT clause)

 

may be ineffective if its operation is inconsistent with the overall trading relationship between the parties.

This may include where such a clause is introduced in the context of an agreement to supply finished goods for immediate resale.

 

An "all monies" clause provides that the supplier retains ownership of all goods supplied until all monies owing to him by the purchaser,

however arising, have been paid.

 

However, where a party regularly purchases its stock in trade from a supplier in order to sell that stock to consumers,

it is very unlikely the parties intend for the purchaser to discharge "all monies" it owes to the supplier before selling the stock.

 

In this case, the relevant contract contained provisions that allowed the purchaser to on-sell the stock it had purchased

(without discharging its balance with the supplier), and to continue to do so even following the purchaser's insolvency.

 

The court found that these provisions overrode the "all monies" retention of title clause.

 

This case shows the importance of drafting a retention of title clause that is appropriate to the type of business being carried out,

and the need to ensure the rest of the contract is performed in a way consistent with the retention of title protection which the clause is designed to achieve.

 

While the retention of title clause in this case was validly incorporated in the contract, and was clear as to its own terms,

it did not fit with the fact that the relevant goods against which the right of retention was claimed were designed to be immediately on-sold by the purchaser.

 

The "all monies" nature of the retention of title clause conflicted with the revolving nature of the stock:

in reality it would have been scarcely practical for the purchaser to discharge "all monies" to the supplier before selling the stock to retail consumers

(against whom the supplier's rights of retention would have been extremely difficult, if not impossible, to enforce).

 

The decision of the court, and more importantly the rationale behind the decision,

suggests that it would be difficult to incorporate an effective "all monies" retention of title clause in an agreement dealing with "revolving stock";

where the intention of all parties is that the goods are on-sold immediately.

 

This case is also a reminder that effective retention of title rights simply entitle the supplier to the return of his goods

if they are not paid for: they are not effective "security" for any debt owed to the supplier.

 

A supplier with the benefit of retention of title cannot simply demand the value of the goods from the insolvency office holder

as some kind of priority debt on insolvency.

 

It remains incumbent on suppliers to monitor the delivery and payment processes for goods in which it claims rights of retention.

 

Although the moratorium that applies in an administration would, in this particular case, have prevented the claimant from attempting to repossess

the stock without the administrators' (or the court's) consent, there is little suggestion that the claimant ever viewed

the retention of title clause as imposing performance obligations on his part

(such as monitoring of items of stock delivered and making a formal demand for their return).

[Guest purplemushroomfairy2]

I appreciate that our situation is different to many and is complicated. We don't know what to do. My husband has offered £600 pcm in addition to £700 we already pay to mortgage. They refused, no reason.Court have now gone for directions and multi tracking andf we have to get the defence in next week. Apparently it's going to be hard, all we want to do is pay the ruddy debt! They have not adhered to any of the FSA guidelines and have only been interested ingetting the house. Feeling as though there is no way out now, was really hoping that someone could help.

[caro]

I've merged your 2 threads together so all information is together making it easier for others to follow your progress and offer advice.

 

As you say your story is not straightforward, so could you explain a little more please. Perhaps a sequence of events with bullet points of what's happened so far and what's happening now.

[Guest purplemushroomfairy2]

Ok:

2004: Husband attempts to get business loan from banks including HSBC. All refuse. He is rung by his 'premier manager' at HSBC Liverpool (we live in kent). She asks about his O/D currently 5K. He says he is trying to start a busines but can't get loan, even HSBC won't give him loan. She says, 'come up to Liverpool we will sort it out'

Meeting with DH and his 'friend' who will be Service Director.

 

Long story short, Bank managed to get us to sign as personal gurantors to the business debts without telling us, common practice apparently.

I have strong 'undue influence' case ( another story)

 

Business loan was organised by HSBC despite knowing that he had been turned down. They leant 100K for a new start up against my home to be paid back in 10 years!!!!

 

Buisness liquidated in Nov 2005. HSBC have refused to have any meetings with us and have pushed us from pillar to post, no support, no discussions no we can help you etc.

 

They started threatening repo in 2007 Jan, DH out of work. Put house on market for 18 months, global crisis no sale.

No contact for three years from HSBC, suddenly repo hearing. manged to put them off with dodgy defences but we want to have the terms of the original contract looked at again to extend the time to enable us to pay off.

Am also taking out a counter claim against the soloicitors that advised me badly.

 

I honestly feel like giving up, no one will help, we know that they have done wrong but it appears we are completely %$%&^&!

 

Any help, even kind words would be appreciated, I just want to have a life again.

[caro]

I'm trying to find you some help.

 

There's obviously a lot going on here. You say that you've managed to fight off the repo, so what are your priorities here?

 

You're clearly very stressed, and this isn't going to be sorted overnight, so I suggest you take one thing at a time. I'm a great believer in bite size pieces. Keep nibbling away at things and in time you'll get through everything.

 

One thing you could do to begin with is put in a complaint to the bank, if you haven't already done so, and if you don't get a satisfactory outcome, take it to the ombudsman to see if they can help.

[Guest purplemushroomfairy2]

Thanks for replying, we are still waiting for the bank to sort themselves out. They have agreed our offer, made last April (2011), have been to court to try to sort out related charging order but Judge said bank had to reclaim their debts in order to write them off!!!!

At present, hoping the remortgage will still happen.