Advice re Charge on Property

[Cindyneedshelp]

This may be the wrong forum to post but looking for some advice:

 

 

I’m looking for some advice on how to deal with this matter. My girlfriend received out of the blue a demand from HSBC in respect of a charge on a property she shares with her ex-husband. She recollects at some point in the past counter signing a document in respect of a £40K business loan for her ex-husband, however the demand she received is for £96K.

 

At no point up until the demand for the £96K as she received any documentation, ie statements or letters etc.

 

When she received the demand she went back to HSBC asking for copies of the agreement and copies of statements, as yet they have not provided her with these, but they continue to send her letters asking her to provide a statement of means otherwise this matter with be dealt with through their legal department and a debt collection agency.

 

How should we proceed ?

[rebel11]

Hi Cindy

 

Welcome to CAG

 

You've come to the right place, the guys will advise shortly.

 

The best thing to do might be to send a SAR Request with a postal order of £10, they then have 40 days to respond.

If they don't respond report them to ICO. They will send you all the data they hold on you including agreements and

statements.

 

I've moved the thread to the Legal Issues forum.

[patrickq1]

When did you co sign the document ,what document if you can remember was it, i gather it was for a business loan, your ex i take it you are formally divorced ,

firstly you need to send a SUBJECT TO ACCESS REQUEST you will find this in the help files, send it registered post keep all letters you have had to date from the bank and also all your reply's ,make a file with just hsbc filename....

where did you sign the documents was it at the place of business or was it at the bank or in your home,

you need to write notes as much as can be remembered dates and times and any correspondance from the date of signing, did the company go bust ,were there circumstances surrounding the failure of the loan payments ,

had you received any defaults if so when

what other notifications have you received from the bank,

12 years deeds of assignment are statute barred , loans on properties are staute barred after 12 years provided you have not made any payments during this time and preferably you have not had any contact

patrickq1

[debbbbsy]

My girlfriend received out of the blue a demand from HSBC in respect of a charge on a property she shares with her ex-husband.

In order to get a charge on her share of the property, HSBC must first obtain a CCJ against her for the sum being claimed. Have they instigated court proceedings ?

 

a £40K business loan for her ex-husband, however the demand she received is for £96K.

If she is jointly liable, she must recieve statements. Take a look at the 2006 CCA amendments, which relates to the enforcability of a claim were statements have not been sent.

 

Do the SAR, they have 40 days to respond.

[Cindyneedshelp]

She hasn't received anything from HSBC other than out of the blue a demand for the £96K to be paid within 28 days.

 

I will get her to send a SAR. But where does she go from there ?

 

What happens if there were letters sent but in their joint name and he ex as not shown them to her ?

 

When you send a SAR do you send it to the registered office ?

[Cindyneedshelp]

Does any one have a link to a template for a SAR letter in respect of the charges on the mortgage ?

[debbbbsy]

I will get her to send aSAR. But where does she go from there ?

 

They have 40 days to respond to her request. It should reveal exactly what has been going on with this account in terms of interest & charges applied to the account. It will only reveal how the debt has risen, and the statements will show who has been recieving them.

 

What happens if there were letters sent but in their joint name and he ex as not shown them to her ?

 

This is a tricky one. They may argue that she should have contacted them. But if she can prove that she was at a different address, the fact remains, she was not aware of any problems.

 

When you send a SAR do you send it to the registered office ?

 

You need to address it to the Data Controller.

 

Before acknowledging anything, she must also do a CCA request.(This costs £1,use a postal order or cheque with someone elses signature) Send this directly to whoever has demanded the money. They have 12+ 2 days to respond. ( It is also worthwhile enclosing a copy of your SAR)

If they respond within this time, produce a legible copy of the agreement with her signature, then atleast she will know what the claim is for, how much she is liable for. We will take it from there, then look at various options.

If they don't comply, she will send the Debt in Dispute letter. The 'Burden of Proof' is on them to provide documentation that proves she is liable for this debt.

 

I would send the CCA special delivery, this guarantees next day, Recorded doesn't.

[Cindyneedshelp]

We emailed them a letter asking them for the address that we could send the SAR and CCA to, this is what they wrote back:

 

"Please note that the information you wish to obtain cannot be obtained without the a disclosure order against the Bank being obtained by yourselves, or issuing a pre-action letter requesting Disclosure as the information is confidential internal information which cannot be disclosed without a court order.

 

Please find a copy of the documents pertaining to our charge"

 

All that they sent was copies of unsigned letters that they sent before via email, demanding the settlement of the money and for her to provide a statement of means. None of these letters as she received physically through the post before. Currently she is only getting email correspondence.

 

After investigating further she is adamant that she as never signed a charge on the property.

 

 

 

Any advice on the next steps please

[patrickq1]

SAR go here ,

http://www.consumeractiongroup.co.uk/forum/content.php?552-Data-Protection

 

send to registered office hsbc ATTENTION OF THE Data controller// ALONG WITH 10 .00 POSTAL ORDER OR CHECK SEND REGISTERED

they then have 40 DAYS IN WHICH TO REPLY

patrickq1

[Cindyneedshelp]

Sent the two letters a SAR and CCA, 14 days ago registered post. Just received an email saying they will forward the information requested.

 

Will keep you posted on what we receive.

[Cindyneedshelp]

Received some boxes, checked through them, it appears that there are two charges on the property.

 

However there is no details of what makes up the balance and who the payments were to and for what. It appears that these charges where made in respect of the ex-husbands debts. There's some photocopies of the agreement which was held at the land registry, but no bank copies provided. The first was for £25K, no copy of the agreement, the other, the second had and agreement which was very open ended.

 

 

Extract of the wording:

 

HSBC Bank will hold this Mortgage as security for the debts (subject to the limitation as set out in this Mortgage) and/or the other liabilities to HSBC Bank as set out in this Mortgage. The amount of the debts but not the other liabilities shall be limited as set out in clause 2. What this means is that both present and future indebtedness up this amount, together with the other liabilities in that clause, are secured by this Mortgage.

 

The debts may include overdrafts, loans or money due under any other facilities that HSBC Bank has granted to the Borrower or grants to the Borrower in the future, whether on not you know about or agree to them. Normally, HSBC will not inform you of existing or future debts or liabilities of the Borrower.

 

Clause 2

The debt is:

a) all money and liabilities whatever, whenever and however incurred, whether with or without your knowledge or consent and whether now or in the future due, or becoming due, from the Borrower to the Bank.

This includes, but is not limited to (whether as originally given or subsequently varied, extended or increased in any way)

i) overdrafts, personal and other loans or facilities and further advances of money,

ii) guarantees and indemnities to the Bank and any of the Borrower's other contingent liabilities,

iii) Interest on the total amount mentioned below in accordance with any agreement between the Borrower and the Bank.....

 

The total amount of the money and liabilities referred to in a (i) and (ii) above that the Bank can recover from you under this Mortgage shall be limited to £75,000.

 

Why on earth would this be signed, no independent legal advice was given. And apparently both of the charges are outside of the CCA.

 

Where do we go from here ?

[Gaston Grimsdyke]

Either they have a charge over just the husband's interest in the property or she did execute a charge in which case her interest is also charged to the bank. If the former, her financial interest in the property is not affected but the bank could force a sale of the property. If the latter, she would do well to seek legal advice because there could be issues of undue influence which could mean the charge is unenforceable as against her. She can obtain a copy of any charge over the property from the Land Registry quite cheaply which would reveal whether she has executed it or not.

[Cindyneedshelp]

Can you recommend any good lawyers in London ?

 

It looks like she did sign the second charge, as yet not able to confirm the first.

 

HSBC did not require independent legal advice from her, she says she can't remember signing the 2nd charge, but a signature that looks like hers is on the documents, and she says if it been explained to her the extent of the charge and the implications then she would not have signed it.

Edited April 29, 2011 by Cindyneedshelp

[patrickq1]

how old is the charge ,after 12 years it is nonrecoverable, if their are children the Bank would be unlikely to force possession of property ,provided you can come to some sort of affordable repayment system that is ,that is affordable by you so you should seek to negotiate ,if she has not signed the second charge and cannot recall this being so then you need to seek some sort of proof that you were not available ie in another part of the counrty or abroad then you can contest this signature,if no repayment has been made then how long ago was this

patrickq1