Mortgage, CreditAgricole ,BirminghamMidshires, Halifa x, HBOS, CurtisSolicitors

[TideTurner]

Very interested in point that they cant go for shortfall if they dont have a money judgement please clarify

 

Hi Bona, they cannot gain possession, then sell your house, then claim that any amount outstanding is due without going back to Court and getting a MONETARY JUDGEMENT, ie clarification that any claim made afterwards for a shortfall is justified. At this point you can contact the Land Registry and confirm that the property has been sold for its real worth via your postcode.

 

This provides you with the oppertunity to dispute the sale price, and therefore any alleged shortfall. They must then show that they obtained the best price possible for the property. There are lots of nods and winks, none of which can be proved. In my case it was a local builder who has links to the manager of the Estate Agent. The manager of the Estate Agent has gone underground, probably because he has upset more people than just myself. When an easy picking (like a repo) comes up, the sharks can smell blood in the water, and a quick deal is done.

 

It is common knowledge that repossessed properties are sold for less than they're worth, just like the assets of a business that has gone into liquidation.

 

This was heard in the Mercantile but has now been transferred to the County Court. The only reason it was transferred to the Mercantile initially was because Company procedure was questioned (the methods of repossession, sale etc).

 

Tide

 

PS Now going after all the sharks

Edited June 7, 2008 by TideTurner

[jody123]

Hi Tide,

 

nuts - my subscribed threads can't be working as it didn't show your thread updated....

 

But seriously well done....it is a victory that they aren't chasing you for the shortfall.

 

Is there any way of finding out whether a money order judgement has been obtained even if it was over six years ago?

 

Well done, and I look forward to round 3!

 

Jody

[TideTurner]

Jody,

 

Thanks for the PM. I agree that there are Trolls out there, employed by the banks to monitor sites like this. Anyone identified should be flagged straight away.

 

Have you contacted the Court and asked them for a copy of the Order or Judgement? It is impossible to obtain a monetary judgement on possession unless the property has been sold. Forget the 6 years as these are not subject to the Limitation Act 1980.

 

Any claim made by the Mortgagor is simply that - a claim. Unless they justify any supposed debt they cannot reclaim it.

 

The main point I am trying to make is that they must obtain a monetary judgement following possession.

 

The Trolls will also get this message.

 

"The gloves are off".

 

Being monitored has its advantages as well as disadvantages, which is why my PM box is full.

 

Tide

[jody123]

Hi Tide,

 

as far as we know there was no money judgement order....according to the sols the house was repo'd in 1999 and sold - they contacted in 2007 saying "pay this shortfall debt or we make you bankrupt"

 

Not altogether clear on what relevance the money judgement order has - just that they have now issued a claim for the shortfall - would that be the money judgement order? Or is a money judgement order something different?

 

Jody

[TideTurner]

Jody,

 

How did they contact you? Was it by phone or in writing? Was it the Mortgagor or a firm who has purchased the debt in the hope they can recover something?

 

With it being outside of the Limitations Act 1980, do they have a claim anyway?

 

Can they prove their claim without a counterclaim made for any charges / verification that the best price was achieved for the property etc?

 

Tide

[jody123]

hi Tide,

 

they contacted by letter, firm of sols, initially just asking for shortfall payment and then eventually saying they were acting on behalf of halifax. Not sure is statute barred as not yet 12 years since they say was repo'd - although considering defence of Estoppel by Representation as they are signators to the cml code of conduct - and certainly time barred for the MIG as it paid the costs of recovery, not the mortgage itself!!!

 

Without going to court and proving underselling - which is was by 12K - we made a "without prejudice offer" in full and final without liability offer to settle based on what they could potentially win, if the Defence of Estoppel by Representation failed, but they didn't even have the courtesy to acknowledge - so....we are going to court and will now put up defence as above...we cannot afford the 23k they are demanding anyway, so have nothing to lose really. I believe this will be the first case where the 6 year cml signature is questioned, so we may yet set a precedent if the judge agrees that they can't claim - which would be fantastic news for all other people that are in similar boats...

 

Jody

[jody123]

n.b. we haven't put up the 6 year estoppel defence yet, as I've only just found out about it....anyone know how we amend a defence as we originally defended on a "prove it" basis as we didn't have any details of the underselling etc - which we only found out about through a SAR...

[Bona]

Ask the other side if they agree to you amending your defence if they say no you will have to make an application have you had a directions hearing if not wait for the date of that then apply to amend your defence having the amended defence served with the application

[TideTurner]

and certainly time barred for the MIG as it paid the costs of recovery, not the mortgage itself!!!

Jody, the defence attempted to have my case thrown out on the grounds that it was statute barred under the Limitation Act, but the Judge dismissed their application, as I argued that the limitation period starts from the date of discovery. You would therefore have 6 years from the date you discovered any wrongdoing.

 

Also, I thought the whole purpose of a MIG was to insure the mortgage (protection in case of unemployment or sickness). If this has been used to pay costs, then you haven't had the benefit of it.

[jody123]

hhhmmmmm - there is a box on the application that says sickness and unemployment cover for £200 per month - but don't know whether this is the so called MIG, or whether that is the Xtra Cover...

 

As my mate didn't know the house had been repo'd then he presumably has 6 years from when they told him of the shortfall debt...guess I'm just going to have to start collecting case law for shortfall, caselaw for Estoppel. At least if it establishes or clarifies the cml's code of conduct "if we have not begun action within 6 years" of exactly what "action" means....as I would have thought that action would be court - not just a ruddy letter than anyone can type up and say was delivered!

 

Jody

[TideTurner]

Yes, this is legal action, but the 6 year clock starts from the time of discovery. Limitation Act 1980

Edited June 8, 2008 by TideTurner

[steven4064]

What you need to define is the 'cause of action', ie the event that gave rise to the court case. For a debt, it is the date at which the next payment was due after the last payment the debtor actually made. For each case, there will be an 'event' like that.

[jansus]

I can only tell you from my past experience - and I am not up to date on these matters but the Mortgage guarantee/ indemnity premium used to be a one off payment at the begining of the mortgage to cover anything that way borrowed over 80% of the valuation of the property at the time of buying . these monies would be paid to the BS not to the borrower form the insurance company.So if you purchased for £100000 and borrowed £90000 you would need a mortgage gtee for £10000

 

So in other words th borrower was paying for the fact that the BS was risking the property prices falling and there being no equity. I know in the past borrowers were confused and thought the money would go to them. This was not the case.The monies go to the BS

 

However if there is insurance to protect against unemployment sickness etc - this could be arranged through the BS or independently and this would be payable to the borrower - but usually only for 12 months.

 

£200 per month seems high for this - it is normally a percentage of the amount you want to cover - so for say £1000 per month cover for 12 months I would GUESS about £90.00 per month cost for the term of the mortgage. Sometimes it seems now they charge as a one off huge premium at the start of the loan/mortgage -

 

Obviously I dont have to point out baout mis-selling and checking whether you are to pay interest on these premiums.

 

the monies would be paid out from the insurance company to the borrower to pay the mortgage and to give them some breathing space

[PriorityOne]

Yes... the MIG is insurance for the lender. I was refused a mortgage of over 75% some years ago because the lender needed a MIG for a mortgage over that percentage.... and the insurers would not provide a MIG because I was not working at the time. I therefore had to accept a 75% offer without a MIG and raise the rest myself.

 

IMO, if the lender has already claimed from the MIG, then on what basis are they now coming after you for shortfall payments ? Surely it would be down to the insurer to come after you to recover monies paid out to the lender under the MIG..... and not up to the lender to effectively recover these monies for themselves twice.... if you catch my drift.

[jody123]

From my understanding a lender claims on behalf of an insurer as they have the same rights as the lender - and then pays any money back - although it is my contention that this MIG was insurance to cover costs associated with recovery of the property - not any captial or interest as according to the statements the MIG paid out the difference between the "loss on the account" and the amount owed i.e. 15 owed, 10, loss, 5 associated costs - 5 paid out on MIG - hence why I believe that this is subject to 6 year limitation rule and not 12 for mortgages....

 

If the judge does not rule out the claim on Estoppel and I prove the underselling and the MIG as a standard contract then the lender will end up owing my mate 2.5K plus interest - plus the 2k worth of shares that they didn't bother to tell him he was entitled to due to his mortgage account being in arrears when the shares were issued - plus all the associated dividends for the last 11 years!!

 

Jody

[TideTurner]

Interesting BBC article on different mortgage types

 

BBC NEWS | Business | Understanding different mortgage types

[jody123]

Hi Tide

 

Trolls indeed - just had call from sols about my mates offer - amongst other things....they are definitely reading these pages....

 

Question - did you ask for a transcript of your case - or is there anywhere I could get a copy of it to cite for my mates defence?

 

Jody

Edited June 9, 2008 by jody123
spelling mistake!

[TideTurner]

Hi Jody, I've PM'd you.

[jody123]

Hi Tide,

 

I've replied...sorry - was a long rant too!

 

Jody

[TideTurner]

Can anybody provide any advice with respect to fixtures and fittings? In particular, whether they form part of the property, and should they remain or be removed prior to repossession? I'm talking about Kitchen, Bathroom, Alarm System etc. - all of which add value to the bricks and mortar, and could be transferred.

[steven4064]

I'm sure that normally they are considered part of the property. I'm not sure where the line is. I'm sure that someone buying a house is entitled to assume that the bathroom suite and fitted kitchen form part of the property. THat may not be the case for light fittings (eg). In that case, I think you can specifically exclude them (although youwould probably have to provide a replacement such as pendant fitting from B&Q)

[Bona]

Fixtures and fittings are those things that are fixed Ie all Kitchen cupboards ect hob builtin cooker Arga Bathroom suites light fittings curtain rails poles fitted wardrobes fitted carpets anything that is free standing is not counted rgs freestanding wardrobes standard lamps table lamps ect

[andrew1]

The guy next door to me had his house repossessed some years ago and he stripped the burglar alarm out saying it cost him too much to leave in and wasn't a 'fixture'. I think anything that as Bona say's is 'fixed' to a wall or piping - like a bathroom suite is in fact fixtures and fittings. So long as the property is not left in a dangerous situation. So light fittings can be removed as long as there is a replacement part which leaves no wires bare and can be used without being a danger to anyone coming in. I guess a free standing cooker, washing machine, dishwasher could be taken as long as left safe. People do that all the time.

[MilkTrayMan]

...I guess a free standing cooker, washing machine, dishwasher could be taken...People do that all the time.

Don't forget to take the garden shed/greenhouse, plants, turf......lightbulbs + toilet roll...

...

[Bona]

not the toilett roll holder unless its free standing