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

[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.

[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

[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?

[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