DCA and old mortgage debt

[give_me_it_back]

Have now heard back from Irwin Mitchell. They say the Halifax are satisfied that they have now sent all that they need to, and have responded to all my points. They have sent copies of documents etc, so I think we have probably reached the end of the line now... They ask me to submit my proposals within 7 days. What should I now do?

[alanfromderby]

Assuming that you are happy that the information is complete, the next issue would be to find out what the average process were for similar properties in the same area, at the time the property was sold. I understand that there are sites that give that sort of information but not sure where off the top of my head.

 

All charges and fees are statute barred after six years - only the capital is twelve years.

 

You can use all that information to get a much reduced settlement - the main thing is not to let them push you into anything. If a settlement is not reached they would have to prove their case in court.

[give_me_it_back]

Thanks, Alan. Is there a template letter anywhere for the response?

[alanfromderby]

I very much doubt it as your situation is becoming specific to your circumstances. You could maybe adapt one of the letters in the DCA stickies.

[twaddle]

Any update on your case?

[give_me_it_back]

Have now heard back. They have enclosed a form for me to fill out with income and expenditure. Do I have to do this, or can I simply make an offer of payment?

 

They also say that, as the action was raised in Scotland, and my point about fees not being recoverable is an English law, tough! I need to pay them!

 

That doesn't sound right with me....

 

Thanks for help!

[PriorityOne]

Crikey... this has been going on forever !!

 

Did you get info. back through your SAR ? Have you had confirmation of how the pre-6 year stuff was disposed of ? If they've disposed of it, upon what basis is anyone coming after you now ?....

 

[sillygirl1]

If it is in Scotland then recovery on mortgage shortfall interest is frozen after five years... they are playing with you now - another point is if they send a 'Without Prejudice' letter its best ignored or replied with a negative as this can't be shown in court and is their way of threatening things they cant do...

[give_me_it_back]

How should I best proceed now...?

[PriorityOne]

Can you answer post #82 first ?

 

If they've sent you a form requesting income/expenditure details, then it sounds as if they're assessing whether it's worth their while going any further with it.

[sillygirl1]

You are under no legal obligation to do an Income and Expenditure form... I wouldn't fill it in but send them a letter reminding them of the facts and that they are not complying with your requests.

[give_me_it_back]

I believe they have given me all they are going to, and it's clear they're not going to give any more. I am too stressed to fight any more. I just want to set up payments.

 

What wording should I use/laws should I quote when telling them I am under no legal obligation to fill out the income and expenditure form, and also to prove that they cannot come after me for fees?

[sillygirl1]

That is just where they want you to be - tell them you cannot provide them with any more information as they have not complied with your requests for information and that you now want a copy of their complaints procedure.

 

That will put the ball back in their court rather than a dead ball in your court. You need to serve them aces in this game rather than play along with their shots.

 

Don't feel downhearted too long, the last thing you need to do is quote laws at them as they can quote them back - remember you DO NOT have the legal backing they have and cannot possibly know this stuff - and any judge would be rather suspicious if you quoted all sorts of legislation at them without knowing the references they came from and the original court documents.

[PriorityOne]

I believe they have given me all they are going to, and it's clear they're not going to give any more. I am too stressed to fight any more. I just want to set up payments.

 

What wording should I use/laws should I quote when telling them I am under no legal obligation to fill out the income and expenditure form, and also to prove that they cannot come after me for fees?

 

As said earlier, if it's clear that they've given you all that they're going to... or in other words, all that they have....upon what basis are they trying to pursue this ?

 

Unless they comply with your legal request for info., then they have no business asking you to complete an income/expenditure form. They can't have this both ways... it's a no deal. It also begs the question.... what exactly are you paying them for ?... how much and for how long ? Without the proper paperwork, this could potentially go on for the rest of your life. Is this really what you want ?

 

Sometimes the biggest victories are the ones we have to fight the hardest.... so don't start caving in now, when you've got this far.

 

[give_me_it_back]

The problem is, I'm not really sure what I am looking for and if what they have sent is the right thing at all. They keep saying it is, but I don't know how to prove it because I have never seen it before... I really don't know what to do...

[give_me_it_back]

Right! I've had a re-think, gone through the mountains of paperwork, and decided not just to roll over! If I don't understand it, it's because it's not clear!

 

I have written this letter... Comments/suggestions gratefully received:

 

Thank you for your letter dated 28th February enclosing an income and expenditure form. I am under no legal obligation to complete this.

 

I have taken advice.

 

You have still not answered my queries, to which I am legally entitled. The information which I have been sent is not clear, and it is also not complete. Until such time as I am in possession of all the facts, this case is still in dispute. I need the answers to the following questions, and this must be laid out in a simple to understand, and legal form:

 

 

• I was never issued with a default notice. Please provide this.

 

• I was also never informed of the sale. Please provide this also.

 

• When did arrears begin?

 

• When was the Possession Order given?

 

• What valuations were made on the property before the sale?

 

• With a total advance of £58k and a sale price of only £33.5k, I question that this property was undersold.

 

• In a previous letter, you tell me that only £111 was spent on maintenance. I cannot see that there was any effort made to secure the best price.

 

• How was the house sold? If it was at auction, was this the first effort made? I need to see copies of particulars and adverts placed which prove that, as the FSA states, the Halifax abided by their duty of care and obtained the “best price which can be reasonably obtained”

 

• Has a claim been made against the indemnity insurance and how much was recovered?

 

• How has interest been calculated from the start to arrears?

• What penalty fees, charges, and litigation fees were added to the account prior, and since, the sale of the property?

 

 

I was also informed that Halifax have “mislaid my file” Under Schedule 1 of the Data Protection Act 1998, the Key Principles of processing Personal Data put a duty of care on companies, and the loss of this file is a serious matter, and clear breach of those principles.

 

Seeing as Halifax have said that they have destroyed all pre-6 year records, then on what grounds have they instructed you?

 

If my file has been destroyed, I need to know how this was disposed of.

 

It is still not clear to me that you have the authority to be collecting any debt, as I have yet to see authorisation. A photocopied letter from Halifax is not enough. I need to see proof of title.

 

You say that, as the action was raised under Scottish Law, English rules cannot be applied.

 

In Scotland, recovery on mortgage shortfall interest is frozen after five years.

 

 

Until I have all the information to which I am entitled, and all my questions have been answered in a clear, easy to understand, concise and legal form, I cannot correspond with you any further.

[PriorityOne]

Nice to see the return of your fighting spirit !!

 

Here you go.... this should keep them occupied. Send by recorded delivery and keep the receipt.

 

 

Dear xxxxx

 

Your Ref : xxxx

 

Thank you for your letter dated 28th February, the content of which has been noted.

 

To date however, you have not fully complied with my legal request under the Data Protection Act, 1998; a Subject Access Request received by yourselves on xx/xx/xx. Therefore, until such times as I am in possession of all transactional data and/or otherwise, I will not be entering into any discussions regarding income/expenditure.

 

For your information, I still require the following :

 

A copy of a any Default Notice issued against my name;

 

Full details of how any alleged arrears were calculated and the date they commenced;

 

Full details pertaining to any Possession Order and when it was granted;

 

Full details of all valuations obtained for the property prior to its sale;

 

Full details pertaining to the apparent sale price of 33.5K, including a full breakdown of how/why this figure was accepted.

 

A full breakdown of all charges applied to the account, including all “maintenance” charges and/or otherwise, penalty fees, litigation charges and so on, including all charges/fees that may have been applied by yourselves and the justification for these.

 

A full breakdown of all interest applied for the entire duration of the account,

 

Full details/information pertaining to the sale of the property; not limited to but including, full details of the precise manner in which the property was sold in line with regulations set down by the FSA; i.e, copies and/or particulars of all adverts placed, where they were placed, dates they were placed and so on.

 

Full details of any claims made against the Mortgage Indemnity Insurance or, if no claim was made, your written confirmation by return.

 

 

Since I have already been informed by Halifax plc that they “mislaid my file” some time ago and, that all pre-6 year records have also been destroyed, then I am a little confused over the precise nature of their/your claim anyway. I will therefore also require a full written explanation as to the precise nature of your/their claim and upon what legal basis they have instructed you to pursue this matter, along with the documentary evidence detailed above.

 

I have noted your comments that legal action was raised under Scottish Law and therefore, English rules cannot be applied. However, in Scotland, recovery on mortgage shortfall interest is frozen after five years.

 

I trust that the contents of this letter are self-explanatory. If you are unable to supply this data however, then I require written confirmation by return within the next 14 days.

 

Should you decide to pursue this matter without addressing your full obligations under The Data Protection Act, 1998 then I shall seek a Court order obliging your full compliance, together with damages at the discretion of the Court.

 

Yours sincerely,

[give_me_it_back]

Brilliant! Thanks VERY much!

[give_me_it_back]

Ok... here's a toughie... I have a small business now, which is currently with Royal Bank of Scotland. I want to now move to a local bank and re-finance the business. Bearing in mind that this old debt is mortgage debt, due to the Halifax, is it wise to go to HBOS (Halifax/Bank of Scotland) to ask them to fund the business... Will they be able to see the old debt (or is it a totally separate issue/department), and will me discussing the personal situation of the business with them reflect in any way with the old mortgage debt...?

 

Thanks everyone

[PriorityOne]

Oh Crikey !! I'd keep this one well away from RBS !! The less they know about you, the better.... and in light of the old mortgage account, the less influence they have over your business finance, the better.

 

They may decide to try and offset some of your business funds against the amount they allege that you owe them on the old mortgage.... and whether this turns out to be legal or not, it would still give you a fresh headache to deal with on top of everything else.

[give_me_it_back]

Good advice! I will investigate other options!

[give_me_it_back]

Ok. EVENTUALLY heard back....

 

"As previously advised, our client has been unable to locate their sale in possession file and thus, we are unable to provide you with the original valuations or copies of the possession order. However, we would advise you that there is no legal requirement for our client to keep such files for this length of time and given that the repossession and sale dates back to 1991, it would be unrealistic for our client to be expected to retain such records for such a period. In any event, should it be neccessary, our client shall seek to rely on witness evidence in relation to the valuations and the calculation of the shortfall itself"....

 

IS THIS ROLLOX?

 

They go on to say that I have made payments in the past, so.. come on - give us more...

 

They are asking me to fill out income and expenditure and make a payment offer (or monthly payments).

 

What should I do now.... Make the offer of minimal payments, or tell them that I DO need to see the documents requested?

 

Thanks all!

[give_me_it_back]

Bump... please..?

[cat100]

They still haven't supplied the information you have requested,I would keep on going.

[PriorityOne]

Yep.... they really need to feck off now. Nice of them to tell you that they have no paperwork.... Unfortunately (for them) they will need something more substantial to go to court with than witness statements about an alleged shortfall.

 

So.... I would write back and express your surprise at the attempts of their "client" to secure payments on an alleged debt that cannot be substantiated by any form of legal paperwork at all..... because their "client" appears to have destroyed it.....and as already stated in previous correspondence, unless/until such times as this alleged debt can be substantiated, no payments will be forthcoming to anyone.

 

Something like that.... by rec. delivery.