mortgage..calling up notice which has now passed. I have received the court papers and the hearing is on 21st September

[gemspan]

Are there any case histories about enforcing a Standard Security in Scotland when the loan arrangement has English & Welsh Terms and Conditions? I initially took legal advice through my insurance company and they gave me advice that while I had entered into an agreement with the lender, the English & Welsh T&Cs would mean that it couldn't be enforced. I did what they said and I received a letter advising me that as I signed the Standard Security the agreement was enforceable. The SS states that Scottish T&Cs will apply and have been explained to me. This was impossible because it was the English T&Cs that were issued. My original solicitor missed this and I signed where he told me to sign.

 

I have been told now that because I signed the SS then I have to adhere to the agreement. I have researched, however, and have found legal information stating that if a loan agreement is invalid then the Standard Security fails.

 

I have an interest only mortgage and any missed payments have been added to the whole amount and I have been paying a higher mortgage payment to cover this. they are asking for the missed payments to be repaid. I have asked them to capitalise them but htey have refused even although it will not prejudice the mortgage because the final sum is not paid until the end of the agreement. I don't think this is being reasonable! Also, as I am already paying interest on the missed payments...if they get me to pay them back they are receiving the benefit of interest twice. Is this fair or would it be covered under the banking regulations on fairness?

 

I want to take this all the way but I don't want to lose my house in the process. I figured that first of all any judge would have to decide whether the SS was actually enforceable with the English T&Cs and then look at repossession after that has been decided. I have been paying a lower amount as advised by the initial solicitor and that is interest payments on Bank of England base rate and have acknowledged to the lender I am doing this due to the dispute. they have issued a Calling Up Notice which recently expired....they have not contacted me and I assume they will have to go through the pre-action protocols. I think any judge would look unfavourably if the agreement was found to be legitimate, of my offer of capitalisation because I was already paying the interest payments on the whole amount.

 

I have to say I haven't been impressed with the standard of service I have received in relation to the fact that I have lost 7 weeks waiting firstly for an appointment at the Law Centre and then an additional 3 weeks to get the advice that didn't even cover all the questions I asked about the contract. They have now advised me to take it to a contract lawyer.

 

Don't know what to do now

[gemspan]

Is there anybody here who can help me please???????????????????????

[IdaInFife]

Hi Gem ill ask about

[IdaInFife]

no help im afraid - i would advise you to contact one of the Law Centres who may be able to help:

 

http://www.fifelawcentre.co.uk/contact

[caro]

Are there any case histories about enforcing a Standard Security in Scotland when the loan arrangement has English & Welsh Terms and Conditions? I initially took legal advice through my insurance company and they gave me advice that while I had entered into an agreement with the lender, the English & Welsh T&Cs would mean that it couldn't be enforced. I did what they said and I received a letter advising me that as I signed the Standard Security the agreement was enforceable. The SS states that Scottish T&Cs will apply and have been explained to me. This was impossible because it was the English T&Cs that were issued. My original solicitor missed this and I signed where he told me to sign.

 

I have been told now that because I signed the SS then I have to adhere to the agreement. I have researched, however, and have found legal information stating that if a loan agreement is invalid then the Standard Security fails.

 

I have an interest only mortgage and any missed payments have been added to the whole amount and I have been paying a higher mortgage payment to cover this. they are asking for the missed payments to be repaid. I have asked them to capitalise them but htey have refused even although it will not prejudice the mortgage because the final sum is not paid until the end of the agreement. I don't think this is being reasonable! Also, as I am already paying interest on the missed payments...if they get me to pay them back they are receiving the benefit of interest twice. Is this fair or would it be covered under the banking regulations on fairness?

 

I want to take this all the way but I don't want to lose my house in the process. I figured that first of all any judge would have to decide whether the SS was actually enforceable with the English T&Cs and then look at repossession after that has been decided. I have been paying a lower amount as advised by the initial solicitor and that is interest payments on Bank of England base rate and have acknowledged to the lender I am doing this due to the dispute. they have issued a Calling Up Notice which recently expired....they have not contacted me and I assume they will have to go through the pre-action protocols. I think any judge would look unfavourably if the agreement was found to be legitimate, of my offer of capitalisation because I was already paying the interest payments on the whole amount.

 

I have to say I haven't been impressed with the standard of service I have received in relation to the fact that I have lost 7 weeks waiting firstly for an appointment at the Law Centre and then an additional 3 weeks to get the advice that didn't even cover all the questions I asked about the contract. They have now advised me to take it to a contract lawyer.

 

Don't know what to do now

 

I think you'd have a hard slog trying to convince a judge that the loan was unenforceable. I believe that English T&Cs are normally accepted in Scotland. So many judges just want to know if you borrowed the money, and if the answer is yes, they'll say you have to pay it back.

 

You appear to have contradicted yourself about what you are paying, as I've highlighted in red and bold. I find it quite amazing that any solicitor would advise underpaying a mortgage, which is obviously a priority debt.

[gemspan]

Hi, the response I made to your post Caro appears to have gone AWOL.

 

I'm sorry I appear to be contradicting myself. Sometimes things just get lost when you are telling a story.

 

Until very recently I was paying the full mortgage payment. The missed mortgage payments were added to the total amount of the loan and so I was paying interest payments on the initial mortgage paid to me...and the interest on the arrears. I queried the amount of charges on the account and they sent me a copy of my T&Cs...only these weren't the T&Cs I had received. I had received English & Welsh T&Cs which fall under a completely different law to that in Scotland.

 

I contacted Shelter and they told me to seek legal advice. I have legal advice on my home insurance so I spoke to them and informed them of the position I was in. They told me that while I am not denying that the money was paid to me...I am querying the T&Cs as they are irrelevant to Scotland and therefore repossession cannot be undertaken in Scotland. Repossession cannot be taken in England and Wales because the property is in Scotland. They advised me to send them a letter pointing out all the payments I had made to date which totalled almost £18,000. I therefore placed the account formally in dispute and advised until negotiations were completed I would pay an interest only payment on the current Bank of England base rate of 0.05%. I have continued to make these payments.

 

I received a calling up notice which has now passed. I have received the court papers and the hearing is on 21st September. The mortgage company have failed to include a copy of the Agreement signed by me in their court papers...but have enclosed only a photocopy of their leaflet of Fees and Charges.

 

They have failed to enter into negotiations or accept any reasonable offer from me to try and sort this out and I therefore welcome my day in Court with them. They have not followed pre-action protocols; have failed to enter into any serious negotiations...and...have gone straight to court action. This is against the law in Scotland.

 

I have been informed that these companies routinely send English & Welsh T&Cs and solicitors require to send them back requesting Scottish T&Cs. If they are relying on English T&Cs it is a completely different law governing repossession.

 

During the time I have been in arrears I have paid off £1500 and until I received the T&Cs and spoke with a solicitor I was paying my full monthly payment. I am at a loss as to why it was sent to their solicitors...apart from the fact that I have seen that this mortgage company appears to be trying to repossess lots of properties at the moment.

 

The only details included with the served papers were that relating to the action...no forms were sent for me to defend the action. I believe these should have been included. Where do I get these from?

[caro]

I still find the advice not to pay the full amount worrying. In fact, if you are in a position to do so, I would suggest that you put the difference between the amount you're paying and the full payments into a separate account. At least that way you are in a position to pay off the difference if the court decide you should. Bear in mind that if you don't pay the full amount extra interest will be accruing.

 

Have you been in touch with a law centre as Ida suggested?

Edited August 22, 2012 by caro
typo

[gemspan]

Yes I have been in touch with the law centre and they were very unhelpful. I took my file with me and left it there. It took me 4 weeks to get an appointment and 5 weeks to hear back from them, and that was only because I contacted them. They said that because the Calling Up Notice had been served they would have to wait until this had run out. If I wanted to get in touch with then they would help. After waiting all that time they told me that they didn't have the expertise to deal with this and suggested I get in touch with a contract lawyer.

 

The DWP had me on the wrong benefits and I was unable to get assistance with my mortgage. I was using all my money to pay my mortgage, leaving me without food, and they sent my details to a solicitor. In light of the T&Cs being wrong I placed the account into dispute and said that I was happy to negotiate. They immediately issued a Calling Up Notice. This has now expired and despite me trying to negotiate repayment of the arrears they have refused all offers. I asked them to pay the arrears over the length of the mortgage using the Norgan caselaw. They refused and issued court proceedings.

 

I sent off the forms received from DWP to them. I have a letter waiting for me at the Post Office and I believe they have sent them back unsigned because the DWP have not received them. They just want to repossess my home. There is no doubt about that. They have failed in the pre-action protocols because if the payments were spread over the length of the mortgage they would be the same as I have been paying for the last 4 years so I can afford them. I believe they just want to keep getting interest on the arrears and to keep adding charges of £75 per month because I don't pay by direct debit and my payments may be a bit late due to the way the DWP pay the interest payments.

 

I'm at the stage now where I don't care if they take my home. It seems you are better off if you don't have a mortgage with these sub-prime mortgages and you just rent. I am so depressed about this all now and it is really affecting my heart condition. The mortgage provider know that I have been diagnosed with a heart condition and yet they will still not negotiate for all the above reasons.

 

I often wonder how my life got like this and wonder if it will ever change. It all started when I tried to reclaim back bank charges and got defaults on my files. I couldnt buy a home with a normal provider because of the defaults and had to find somewhere to live. Before I tried to claim charges my credit reference file was perfect. It seems like they can just put anything on to these agencies and get away with it. Sometimes it takes me all my time to get out of bed now....tbh.

[gemspan]

Life is just one long drag!!!!

[caro]

I don't understand how claiming bank charges caused you to get defaults.

 

I also believe that charged £75 a month for not paying by DD is unfair and you could use this as one of the arguments to fight your case.

 

Who is the lender?

[gemspan]

Claiming Bank Charges can most definitely get you defaults if the balance you are querying is all charges and you refuse to pay them. They register defaults against you. I got bank charges refunded but the default remained. That was the reason I had to use a sub-prime lender.

 

Yes, I sent a letter requesting the charges to be refunded and was told that they were legal. Funnily enough they have included only a tarrif of charges in the Initial Writ....they haven't included a copy of the mortgage agreement. I don't know if I can use it as one of my arguments, as the action relates to repossession using a specific Scottish Law and I have to respond to that. I can use the fact that they have refused to enter into any reasonable submissions to work out the problem. I have asked constantly for the arrears to be capitalised. Initially I was told no, but perhaps after 6 months of paying my mortgage. After 6 months, they said no because that wasn't what they did. I asked for a payment holiday initially...but they didn't do that either. All the time charging me every month for being in arrears and not paying by DD.

 

I have paid my mortgage consistently every month prior to the solicitors getting involved and and had paid off in excess of £1000 of the arrears but they have not reduced. I know I have a very strong case but, as I say, if I lose my home then so be it. If I do then the law is an ass. If they can't get their administration right then, just like any other contract, I can dispute its terms and its enforceability. I have never said I didn't get the money....I have only said that the Agreement is wrong and has to be renegotiated.

 

I hope this sets out things clearly. My day in court is 21st September 2012. The lender is Platform.

[gemspan]

Also, I was told by a solicitor that in order for a company to lend mortgages in Scotland, they must have a registered office in Scotland. Does anybody know if this is correct? If so, can you direct me to the literature or law that states this? Thank you.

[caro]

I'm afraid I don't have enough knowledge to help with your specific questions. I hope you may find some help here. http://www.govanlc.com/mortgage.htm