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I have a reposession hearing booked in April in ******* County Court. I had a suspended repo back in 2009 and that was stayed due to a counterclaim I put in and nothings happened since. I am on Pension Credits which pay £300 pm towards the mtg, but I am meant to pay £800 so there is a shrotfall and the solicitors wrote to me saying " If I don't provide proposals to settle the arrears they " anticipate their client will reinstate their possession claim"

 

"They anticipate" - that is not 'an instruction' from the bank, that's the solicitor saying their client 'might'

 

That was in November 2011. I hadn't heard a thing from anyone since 2009.

 

In December the solicitor sent a Notice of Application to reinstate procedings along with the Witness statement and wrote to the Council telling them they had applied for repossession - the Council wrote to me explaining how they could help. I phoned the court and they said I need send nothing just to turn up to the hearing.

 

I had been liaising with the solicitors for some time asking them questions over my mortgage as there were still a lot of unfished issues I had over further advances since 1990 when I took the mortgage out (another issue for another day), but the solicitors had been ignoring them so, I phoned the bank and they said they have not given instruction to their solicitors to reposess.

 

I'm looking at the Notice of hearing and Witness statement of their solicitors and the bank who I have the mortgage with is telling me they have NOT issued instruction since the stay in 2009 for repossession to take place.

 

So, it appears the solicitors have some kind of blanket contract to undertake litigation without intervention by the original creditor right through to repossession even if a time lapse of some 2 years has occurred.

 

I find that immoral if not illegal and I ask here what is covered by the solicitors code of conduct that allows an application to repossess to be made when NO consultation has been undertaken with the mortgage provider for the last 2 yrs at least and NO instruction given - not recently anyway?

 

I need to understand the severity of this solicitors actions because they are just about to take me into court and take my home (or they think they are) gloves are off.....

 

What would a Judge say now that I have transcripts from the 2 telephone converstations I've had with the bank which denies them giving instruction when I present this in court?

 

What trouble would the solicitor involved be in by way or breaches of the SRA code of conduct?

 

If the Judge stuck out their claim as a result what actually happens to the mortgage debt?

 

I need to know the severity of this action by this solicitor and the leverage I may have to negotiate a deal - any thoughts?

 

Thanks

spot.

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Solicitors are supposed to take instruction from their client - did you ask the lender to speak to their solicitors?

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Solicitors are supposed to take instruction from their client - did you ask the lender to speak to their solicitors?

 

No Ell-enn why would I?

 

I am in the mood to bring these people to book for what they have tried to do without instruction, I just need to know the severity of what they have done by not having been instructed to take action before doing so.

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Hi Spot

 

Heres some useful information to retain within your thread.:-

Solicitors Regulation Authority - Risk-based regulation

 

 

Solicitors’ duties to clients

 

In our legal system, the solicitor/client relationship has long been recognised as a fiduciary relationship. The term ‘fiduciary’ means trust, so in a fiduciary relationship one person (the client) places his or her confidence, good faith, reliance and trust in another (the solicitor), whose aid, advice or protection is sought in some matter.

What are the duties?

 

 

A fiduciary relationship creates many legal duties for the person in whom the trust has been placed. Generally this person must act in the best interests of the other. In relation to their clients, solicitors must:

  • act honestly and fairly in a client’s best interests
  • act with due skill and diligence, reasonable promptness and courtesy
  • maintain a client’s confidences
  • avoid conflicts of interest
  • communicate effectively and promptly with clients
  • follow a client’s instructions.

There are many different components to these duties. The major components are explained below.

Please note that solicitors also owe duties to the Courts and the profession, which sometimes may be at odds with their duties to clients. Whilst clients usually have priority, solicitors cannot act in way that compromises the integrity of the law.

Disclosure

 

Your solicitor must tell you in writing how much they will charge you and about other expenses before they start working for you. This is known as disclosure. Once you have agreed to use a particular solicitor, he or she should also send you regular bills for their services, setting out the work performed and the charges for each service.

Confidentiality

 

All conversations, correspondence and documentation between you and your solicitor are confidential and can only be revealed to someone with your permission or under an order from a Court. The nature and details of your case are also confidential and must not be revealed to anyone without your permission. Solicitors must also follow strict rules in the maintenance of client files.

Conflicts of interest

 

Your solicitor must not allow their own interests, or the interests of an associate, to conflict with those of a client. Your solicitor must not act for you if they have previously provided legal advice to a person you are in dispute with. They should make you aware of a potential conflict as soon as they become aware of it. If you believe that your solicitor may have a conflict you should raise this with them.

Following instructions

 

Your solicitor cannot make any decisions without your instructions. He or she must carry out your instructions as promptly and efficiently as possible in accordance with the law.

Clear communication

 

As the client, you are entitled to regular updates on the progress of your matter, preferably in writing. Your solicitor must provide advice about all your options, including the best course of action, which may be alternative forms of dispute resolution. Your solicitor must also treat you with respect, be polite, patient and assist in your understanding of the law.

Handling your money

 

Your solicitor may ask you to pay some of their fees in advance to cover any expenses they incur during their work for you. This money must be held in trust and cannot be paid to anybody for any expenses without your specific permission, which you may provide in your original costs agreement.

How duties are enforced

 

The fiduciary concept in the practice of law is now encapsulated in various pieces of legislation governing the legal profession and in a code of ethics.

All solicitors iobliged to follow these laws and ethical standards. Failure to do so entitles the client to make a complaint in certain circumstances, which can lead to the solicitor facing a range of disciplinary actions.

 

Regards

 

Andy

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I suspect that following your phone call the lender will contact the solicitors. Keep us updated with what they do next.

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Please consider making a donation, however small, if you have benefited from advice on the forums

 

 

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My advice is based on my opinion and experience only. It is not to be taken as legal advice - if you are unsure you should seek professional help.

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Depends entirely on who at the bank you spoke to on the two occasions you have transcripts for. If they were grunts on the phone, the system in front of them may not have contained details of the litigation. If, on the other hand, you spoke to someone in the bank's litigation department and were told categorically that they have not given further instructions to their solicitors, then there might be an issue. But only 'might'. Get the information in writing.

 

Your case may no longer be at local level - so ultimately you need to speak directly to the bank's litigation department (they should have someone that deals with default accounts), and in addition you should check the court papers to see who the claimant is.

 

Solicitors cannot, and would not normally, act without written instructions from their client. The issue should be cleared up quite quickly by speaking to the right people, if the bank writes to you indicating they have not given instructions, then the case will be either struck out or adjourned to ascertain what has occurred.

 

In the interim, it may be useful for you to follow up with the assistance that the local authority can offer you (probably mortgage rescue scheme), as even if the bank haven't issued proceedings at this point, it cannot be long until they do with a shortfall of 500 quid per month since 2009 (and arrears prior to that point too, given that they issued proceedings). Do you know the value of your potential counter-claim?

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Well I spoke to the collections and recoveries team so I would have thought it unlikely they wouldn't know. You do however have a point and my letter to them has requested information I would be surprised would not have been referred to their litigation team for answering. The Claimant is the bank - who else were you expecting it might be?

 

I have not got arrears since 2009, it equates to approximately one year and the counterclaim was settled as a full and final on my claim in 2009. Hopefully once I have the written response I can update.

 

Thus far I have requested the solicitor be kept unaware of my inquiry to the bank as I stated I did not wish to make accusations before getting my facts right. My contract is with the bank so I'm hoping they will respect that confidentiality.I'm treading carefully, but planning my complaints to FOS/SRA/Legal Ombudsman and FSA just in case.

 

Will keep you posted, and thanks again for all your input folks, much appreciated - this is unusual and may get tricky.

 

spot

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Well I spoke to the collections and recoveries team so I would have thought it unlikely they wouldn't know. You do however have a point and my letter to them has requested information I would be surprised would not have been referred to their litigation team for answering. The Claimant is the bank - who else were you expecting it might be?

 

I asked re Claimant because you had categorically stated the bank had not given the solicitors instructions - if the solicitors had made an error and placed their own name as Claimants, then it would have been an easy strike out.

 

I have not got arrears since 2009, it equates to approximately one year and the counterclaim was settled as a full and final on my claim in 2009. Hopefully once I have the written response I can update.

 

One year of arrears is more than enough to achieve a successful repossession, particularly when affordability is at the crux of the matter. I really would urge you to explore the MRS with the local authority - as you are on pension credit you may well qualify for the scheme.

 

Thus far I have requested the solicitor be kept unaware of my inquiry to the bank as I stated I did not wish to make accusations before getting my facts right. My contract is with the bank so I'm hoping they will respect that confidentiality.I'm treading carefully, but planning my complaints to FOS/SRA/Legal Ombudsman and FSA just in case.

 

The bank is the solicitor's client - and the bank may or may not be taking action against you - don't be too surprised if they have picked up the phone and immediately double-checked what is going on. They owe you no confidentiality when the discussion is taking place between them and their solicitors - that has privilege. There is also the possibility of retrospective instructions being given.

 

Will keep you posted, and thanks again for all your input folks, much appreciated - this is unusual and may get tricky.

 

spot

 

It's a fairly straightforward thing to sort out - whether or not there is a letter (or other form) of instruction from bank to solicitors. If the answer is yes, the court proceedings are correct, if the answer is no, then the solicitors have a little bit of a problem. They may actually simply be acting on prior instructions.

 

Just pointing these things out to make you aware of potential pitfalls with this sort of issue. The bank are highly unlikely to sell out their solicitors for one client.

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I am appreciative of all comments good and bad, unless we know the pitfalls where things can be 'fixed' by the opposing party we cannot plan. It's very useful knowing your views so please don't hold back on saying how things are rather than avoiding hurting feelings...

 

The prior instructions would have been over a year old probably nearer two years old - one would have thought that a more recent instruction given any change in circumstances (I have never been asked) would have been sought rather than just going ahead with the action.

 

However, whilst accepting the bank are hardly likely to sell out their solicitors, I have asked that the letter be answered as a statement of truth and I will make it quite clear I may ask that person who writes this to swear under oath too.

 

I will check out the MRS scheme - thanks..

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Just had confirmed (from the horses mouth) this department would be fully aware of anything in litigation and would have it on their system.

 

Good news - are they prepared to put it in writing that they have not given the solicitors instructions to proceed to a hearing?

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I have it in the transcripts from the phone calls already - I have the disc with the recordings on, but I have asked in my letter to them to inform me as a statement of truth, when the last instruction was either requested by the solicitors or was given to the solicitors by the bank. If they lie - off with their heads!

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I have it in the transcripts from the phone calls already - I have the disc with the recordings on, but I have asked in my letter to them to inform me as a statement of truth, when the last instruction was either requested by the solicitors or was given to the solicitors by the bank. If they lie - off with their heads!

 

I understood you had the transcripts of the actual conversations.

 

You seem to have it covered if you are requesting that they provide you with a statement of truth as regards the last instructions to the solicitors. I'm not convinced they will provide you with that, or that they are obliged to, but it's a case of wait and see what the response letter states.

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I have received one transcript typed up by the bank of one of the conversations, that in itself would be enough - although there are a few parts which they say is 'muffled' and not declared in the transcribed document. The second call just adds to their woe's . Needless to say I have what I need in the unmuffled transcript. I then requested the CD so I can decipher it myself and I have that which apparently contains both conversations, but the encryption code does not work and I am awaiting their techi to call me tomorrow with why.

 

I think with the term " Treating Customers Fairly" waiving about they might find it somewhat difficult not to confirm this as I have made it clear that if they won't keep things simple and supply it I will ask the Judge for full disclosure (it's my house they're after after all) which may get their legal priviledge kicked into touch along with it.

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I have received one transcript typed up by the bank of one of the conversations, that in itself would be enough

 

That's the bit I'm not so sure about - I don't think it would be enough. If I were in their situation I would think it extremely easy to say that the information was not available in full detail to the person(s) you spoke to, therefore whilst it is agreed that they did in fact give you that information, it was wrong information...and then an apology for giving you incorrect information will follow, thereby ending the whole issue. Not saying that WILL happen, but certainly using a bit of insight, I could see how it would be perfectly easy for things to transpire that way.

 

- although there are a few parts which they say is 'muffled' and not declared in the transcribed document. The second call just adds to their woe's . Needless to say I have what I need in the unmuffled transcript. I then requested the CD so I can decipher it myself and I have that which apparently contains both conversations, but the encryption code does not work and I am awaiting their techi to call me tomorrow with why.

 

If it all works out, that is excellent. Just don't want you to set store by any of this when the potential pitfalls can be identified quite readily even at this stage.

 

I think with the term " Treating Customers Fairly" waiving about they might find it somewhat difficult not to confirm this as I have made it clear that if they won't keep things simple and supply it I will ask the Judge for full disclosure (it's my house they're after after all) which may get their legal priviledge kicked into touch along with it.

 

I think they could argue that waiting a full year before issuing further proceedings was not 'unfair' per se. Plus it doesn't seem like they are unwilling to accept that you were told what you were told. The issue arises in what was actually said to the solicitors. Unless the bank are willing to waive their legal professional privilege with their solicitors, it is doubtful in circumstances such as these whether the judge would be able to order disclosure. Of course, that would depend on whether the subject matter itself was subject to legal professional privilege (I'd expect instructions to be covered).

 

It'll be very interesting to see what response you get.

 

All that aside - ongoing, in order to ensure you stay in your house, it seems like MRS might be a good thing to investigate now, especially since your hearing isn't until April, plenty of time for the local authority to start an application assessment.

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  • 2 weeks later...

Just to repeat what Lea has said, whilst you believe that the solicitors might have been instructed in error, once the bank are notified it will be rectified between them and the solicitors.

A DJ or a regulatory body would be a bit miffed at this miscommunication, if that's what occurred, but I think you need to be realistic about any complaint you make. At best you will get an apology letter and possibly a small payment as a gesture of goodwill. You'll still owe the bank the same amount of money, you can't afford the property, and the bank and solicitors will simply recommence action as they are perfectly entitled to do so.

I understand their actions have annoyed you, but really this is a very minor issue compared to your financial situation, and your energy would be far better served dealing with that.

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Just to repeat what Lea has said, whilst you believe that the solicitors might have been instructed in error, .

 

Thank you for your contribution Rorschach, it is much appreciated. If I may, just to make this clear... I do not believe the solicitors "might have been instructed in error"

 

What I believe is that the solicitors had instruction some two years ago over another matter and nothing has happened since between them and the bank and the bank have confirmed to me that they were unaware the solicitors were putting in an Application to reinstate a suspended repossession at this time. So why did the solicitor act in November when the bank had not issued instruction? Nothing to do with issuing instruction in error, this is about solicitors acting on their own initiative (if you call that initiative).

 

once the bank are notified it will be rectified between them and the solicitors..

 

What they are doing now is trying to cover butts since I have raised this..

 

A DJ or a regulatory body would be a bit miffed at this miscommunication, if that's what occurred,..

 

I only deal with facts and the law, Rules and Regulations - I am not concerned about people being miffed, it's what the Rules and Regs say that count, so long as I can show those in court then they will have to answer to the court not to me.

 

but I think you need to be realistic about any complaint you make. At best you will get an apology letter and possibly a small payment as a gesture of goodwill.. You'll still owe the bank the same amount of money, you can't afford the property, and the bank and solicitors will simply recommence action as they are perfectly entitled to do so.

I understand their actions have annoyed you, but really this is a very minor issue compared to your financial situation, and your energy would be far better served dealing with that [/Quote]

 

 

I was being realistic when I made countless requests for information from these solcitors only to be told that they will not answer them as a result of legal privilege (when the questions were not covered by legal privilege) and they will not answer to save costs - those costs of course being at my expense not theirs because if they shut the door on communication as they have then they get their repossession all costs will fall on my account, not theirs.

 

I am also realistic enough to have put my property onto the market and there is more than 3 times the equity in the property than what I owe in total to all creditors combined so nobody's security is threatened, it's an abuse of process and a waste of court time. Another 3 months would not have had a hapeth of difference whilst a sale goes through. It is not in an undesireable area either, quite the contrary.

 

Tell me the rules which allow them to do this

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i'm sorry you have missed my point.

You may be right in all of the above, you may be successful. But that will only delay matters by a few months.

After which, you will still owe the bank money, they will by law be entitled to repossess your house (even if they have instructed their solicitors incorrectly now, they will just start proceedings again).

By all means, fight the could fight on this technicality you have an issue with.

But the bottom line is if you can't pay your mortgage, you will be repossessed

Would you rather be victorious in this minor admin technicality, which it is though you don't see it that way, or address your long term future?

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I fully appreciate the " Don't pay and they will repossess", that thankfully has never escaped my attention, but can be resolved. I am used to dealing with realities, but thanks for reminding me.

 

It may be a small technicality on the face of it, but is it? - They have a stayed suspended Order and have not answered a whole swathe of other questions which need answering before I hand over any keys and if it means splitting hairs then so be it.

 

I appreciate what you say and will keep focussed on trying to recover the shortfall so that this action will become uneccessary, but there are people telling untruths and as I said to one of them, if they make a false statement and I lose my house over it, I will take action against them personally. Too many people in these places do this and think nothing of it - well they'll learn if they do.

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Im not trying to comment on whether they can take action under the situation you have raised.

But even if they have done wrong, if you owe them money they can take you to court - they will sort out the problems.

You cant defend the fact you cant afford the mortgage on the basis they made an admin error. At best youll spend a few months putting them on the back foot due to it.

But if you cant pay, you will be repossessed. Errors don't matter it will get there.

What are you doing about the fact you cant afford payments? Or would you rather focus on a minor error which might delay matters for a week or two?

Ell-Enn can you help me focus him on the right thing?

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I have already spoken to Ell-enn thanks Rorschach and I know exactly what you are saying and I am totally focussed on the reality worry not. I thank you for pointing it out so vehemently and it is not falling on deaf ears believe me. The message you relate is an extremely important one and I totally accept what you are saying and will act accordingly.

 

But Errors do matter and there are many of them as well as the issue of money and affordability. I have been here before so this is not uncommon ground for me. I'll keep you posted on events as they unfold. Gonna be an interesting one and I may well have the shortfall to pay on the day, so all is not lost yet.

 

Thanks for your support and for pointing out these things, your thoughts are very valuable in taking on board all scenarios.

 

spot.

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  • 4 weeks later...

Andy,

 

Been to court.

 

I have a mtg going back to 89. Had various f/adv's and capitialisations of arrears. In 2004 I had a conversion mtg of 5 separately documented loans accumilated over a long peirod into a discounted rate mtg. All this seems to be secured by the one title deed from the off.

 

In 2006 I did a deal with the bank and they wrote of 2 of the loans over a counterclaim I made. Settled by way of a Tomlin order. The counterclaim I made was against those 2 loans. I won.

 

In the Tomlin they showed the current balance and in their schedule of the deal broke down what the deal related to. "The sum represents the further adv amount of £x's plus interest less payments" and then showed the mtg balance as a figure representing the recorded balance before deal and the balance remaining after deal.

 

I received a letter attached to the Tomlin stating: we enclose a revised Tomlin order which has been amended to confirm that our client's offer is made in full and final settlement of our clients claim and your counterclaim. Notwithstanding this, our client concedes that the Tomlin Order is not in full and final settlement of all claims arising between the parties"

 

Now, in court they tried to say that the balance both before and after the deal had been crystalised and the judge bought it. Stating that I cannot 'go behind the amount I had agreed to pay back. That was not the deal, my counterclaim was against 2 of the 5 listed loans.

 

Given the issues I have relate to one of the initial loans being a CCA regulated loan rather than a 1st mtg I find that a little annoying.

 

My question is:

 

Does a Tomlin Order overrule Statute?, because according to this and the judge I cannot go back and exercise any rights I might have found to be questionable over the administration of the loans back when they were established. I have to be held to account under their 2004 t & c's and the 2009 so called conversion package (to a discounted rate) but I cannot go back myself.

 

I am trying to establish exactly who regulates this account now as I have nothing expressly advising me this has been secured or who regulates it/them (They are always listed on statements as 5 loans (now 3) all on the one document... They will not supply me with the T & C's of the older loans either and they have just secured their application to reinstate an old suspended order that had been superceded by a Stay which I got when I did this previous deal in 2009. Since defaulted and they are calling in their loan/mtg.

 

I can get out of it I expect, but the tricks these people get up to (allegedly) knows no bounds.

 

Tomlin over rule Statute?

 

Thanks..

spot

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Once a consent order (Tomlin order) is signed, there is no appeal process and the dispute can only be re-opened if there is some allegation of fraud or impropriety by one or other of the parties involved in the consent order, which would vitiate the consent.

 

The court still has supervisory powers over the order, but only in respect of carrying into effect the terms contained therein.

 

If you are stating they have materially changed the terms of the Tomlin order without your consent, then you will need the assistance of a solicitor.

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Once a consent order (Tomlin order) is signed, there is no appeal process and the dispute can only be re-opened if there is some allegation of fraud or impropriety by one or other of the parties involved in the consent order, which would vitiate the consent.

 

The court still has supervisory powers over the order, but only in respect of carrying into effect the terms contained therein.

 

If you are stating they have materially changed the terms of the Tomlin order without your consent, then you will need the assistance of a solicitor.

 

 

By quoting the before and after balances they are saying that the money I owe has crystalised the balance after the deal secured in the Tomlin.

 

I'm sturggling with a number of things here.

 

The conversion package as they call it set up in 2004 is made up of those 5 loans, all documented as separate loans which were further advances since '89 on the 1st mtg loan.

 

The Tomlin deal reduced it to 3 in 2009.

 

I spent a long time negotiating a counterclaim on those 2 loans now gone and at least one of the remaining 3 should/could be cca regulated. That said, nothing in any of my paperwork tells me what or who regulates my loans. It certainly doesn't say the loan is secured by the 1st mtg deed in any 'express' way.

 

If, in 2009 when the consent order was constructed by the banks solicitor they happened to word it in such a way to imply that I was freezing all previous questions, which I might add had been raised before this deal was struck, then they would have not included that paragraph:

 

" we enclose a revised Tomlin order which has been amended to confirm that our client's offer is made in Full and final settlement of our clients claim and your counterclaim. Notwithstanding this, our client concedes that the Tomlin Order is not in full and final settlement of all claims arising between the parties"

 

What am I to think?

 

1) Is the balance they deemed to be the crystalised (now reduced) balance create a new loan with it's own set of terms and conditions?

 

2) Does the balance just represent a reduced amount of the previous 2004 conversion package with a line drawn under all the RMC/ CCA statutes or rules and regs protections for the consumer for which I cannot rely upon any longer?

 

3) Should I have had a new set of terms and conditions?

 

This new figure and the crystalisation of it surely cannot cut off from the statute protections and offer me no protections, recourse on Unfair Terms, nothing and if they are applying for repossession then under what terms are they using? - the 2004 terms or just that I defaulted on the consent order agreement? Enforcing using terms I cannot rely upon myself?

 

I can't imagine they can just say " Mrs you have now agreed you owe us £x's because that was the balance shown on the consent order after we removed the write off deal and you have no protections under the law on any of those previous loans, no recourse on any unlawful aspects of those loans or their construction unless that is now being treated like some new consolidation loan which has brand new t & c's?

 

This is all a little untidy for my liking, the solicitors who constructed this Tomlin/consent order are pulling a fast one if that is what they have done and let's assume that this crystalisation is hard and fast - how does that effect the loan t & c's?

 

Should it expressly state this is secured upon the mtg deed/title in the Consent Order? It's like an unfinished agreement somehow with a totally one sided set of rules and regs in favour of the lender who seem to be able to do as they like.

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