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Overdraft on a mortgage - help needed urgently!!!!!!!!


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Hi, to be honest the judge's hands will be tied somewhat as the hearing will be to determine how the current arrears are to be paid. If you are unable to maintain the normal monthly payment then it is obvious that the arrears will increase rather than decrease. There is always the option of putting the property up for sale and asking for time to sell while making reduced payments, but you would have to show proof (estate agents contract) that it is indeed for sale.

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I think that's good advice from Ell-enn. If it seems inevitable that you can't stay in your home it is much better to try and sell it yourself, on your terms, and ensuring you get the best possible price. At the very least it buys you some time.

 

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Sounds like you have what is known as an all monies charge in your mortgage - which means any other lending the mortgagee (Woolich/Barclays) have given you is automatically secured against your house. Since overdrafts are usually payable on demand, if you fail to pay them when they ask for it, they will do exactly what they have done, go for possession.

 

The complexities surrounding an all monies charge aren't readily understood by many people - if it relates to an unsecured loan, a credit card or similar, then the court retains the power to suspend any possession order under s36 of the AJA1970 and s8 AJA1970 (there is more to this, but I am sticking to layman's terms). But where the money lent relates to an on demand overdraft secured by an all monies charge, then s36 and s8 do NOT apply. But, that said, the court retains the discretion to adjourn or suspend a possession claim if there is a likelihood of the overdraft being paid off in a reasonable period.

 

s8 AJA1973 specifically does not generally apply to an on demand overdraft, but the court can still exercise its discretion under s36 AJA1970. You need to check your agreement for the overdraft to see if there is reference to deferment of principal.

 

Your defence is going to be complicated in the sense that you will have to raise the above information to the judge, otherwise the otherside are going to push on the all monies charge issue.

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Thanks Lea...unfortunately, I am confused by this twist. They haven't provided the agreement despite many requests so it will be difficult to get anything done on that angle b4 tuesday. So I have pointed this out in my statement and will keep the ss.8 & 36 in my war chest.

 

I thought because the other lending was on a OD, the Coutts v. Seb case might come in useful? Do you have any thoughts on this?

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Thanks Lea...unfortunately, I am confused by this twist. They haven't provided the agreement despite many requests so it will be difficult to get anything done on that angle b4 tuesday. So I have pointed this out in my statement and will keep the ss.8 & 36 in my war chest.

 

If you use these sections you MUST understand what it is you are asking the judge to consider - it is for him to use his discretion to allow you time to repay the OD, even though it is an on demand repayment facility. You can gain an adjournment by informing the judge that you have requested sight of the agreement and have not yet received it yet. The judge will direct the other side to provide you with a copy.

 

I thought because the other lending was on a OD, the Coutts v. Seb case might come in useful? Do you have any thoughts on this?

 

It is impossible, without the full facts of your case, and sight of all the relevant paperwork (most notably whether this is in fact an all monies charge or not) to ascertain which case law may or may not be pertinent to your case.

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I have a book containing terms and conditions (far too big to copy & post on here) - any idea where I should be looking? Is there likely to be something stating 'all monies charge'?

 

Your mortgagee is OBLIGED to tell you, if you ask, whether there is an all monies charge clause in your mortgage agreement. Ask them. It would be difficult for me to tell you where in your booklet to look, or what wording to look out for, as it won't necessarily be the same for all mortgages. But, they do have to tell you, and they can tell you the exact paragraph it is contained in. If the wording is ambiguous, then you will obviously be able to claim that it is not readily understood and is therefore an unfair term - though this of course won't work if the wording makes it clear what it means (they usually do).

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