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    • Hmm, so.. basically have to rely on the default notice not containing all that it should and the claimant misleading the court for the reason for the application.. and judge lottery : /
    • Which would require a hearing....so the fee would be £255.00
    • When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:   a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?   It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.   The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act. The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):   1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974 2.     Name and address of the debtor 3.     Name and address of the creditor 4.     Cancellation clause applicable to the executed agreement.   All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.   The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.   In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.   Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?   A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.   Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form? The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.     If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?   If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.     As your agreement is post April 2007  Section 61(1)(a) and 127(3)   Consumer Credit Act 1974 would not apply.   Andy
    • well start a new thread for the court claim.   as for this one i'd await the letter of claim  
    • Useful information...   And....   https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55
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Markpc007

Mortgage Express and LPA problems

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Please help!!!

I have two properties in my name. One was my personal property that I used to live in and now let, the other a buy to let with joint owners, both financed with Mortgage Express .

Mortgage Express were offering no penalties for early redemption when I spoke with them in early January so I decided to sell my personal "buy to let" property and reinvest the money.

Tuesday 20th November 2012 was the completion date for selling my personal property. Three hours before I was due to complete I received an Email from my Solicitor with a letter attached from Mortgage Express sent to them on 24th September. The Email said there was no balance to pay into my account and to refer to the letter. This letter I had never seen before. It was titled "Right to Consolidate". The letter stated that Mortgage Express would not apply their "Right to Consolidate" but went on to say that they require all sale proceeds of the property to go to them of which they would put reduce the balance of the mortgage of the second property that I joint own with three other people.

 

So three hours before completion that this nice lump sum that I thought was coming to me would be taken away.

Over the next two days I was seeking advice, Emailing my Solicitor, faxing Mortgage Express, phoning them, which was very hard getting through to the right person, but to no avail and then be told they were looking to reduce the loan to value on the other property. So basically they were applying their "Right to Consolidate" but in a roundabout way.

 

All the other examples I have read of this is where landlords etc are in arrears. None of these accounts are in arrears and all have been managed impeccably. I thought that the "Right to Consolidate" was only if there was an outstanding debt?

I mentioned this to Mortgage Express and they answered by saying the fact that the other property still has a mortgage and they want to reduce the loan to value counts as an outstanding debt in their terms and conditions.

With four joint owners on the other property it is going to make things very tricky.

Are Mortgage within their rights of their terms and conditions to do this on an up to date account?

Can anyone please help???

Mark

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Hello there.

 

I'm sorry you haven't had any replies yet. I'll move this to the mortgages forum to see if anyone there has advice for you.

 

My best, HB


Illegitimi non carborundum

 

 

 

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Sorry I dont know the answer, the only thing I can think of is what does the contract say re loan to value

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markpc007... sorry mate, there is nothing you can do. MX have been doing all sorts of stuff to borrowers for the best part of the last 4 years and nobody would take notice. I had a friend who lost 34 properties in one hit but noone cared because it was him and not anyone of us. Last year another friend lost 27 properties die to consolidation! I have 50 plus properties and I am also under their new terms with over payments. I was screaming at the top pf my voice last year when I asked for a group of victims to join forces and make small escrow payments into a law firm to start a class action against UKAr / MX. Surprise, surprise the momentum died. Large institutions will keep up this kind of bullying tactics on consumers because they know that we are not united. It's a case of no one cares for the sick until they have that illness. You have just become another statistic. You cannot even sue the broker for selling you that mortgage because buy to lets are unregulated! My advise is to work harder, save money and do not trust banks.

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My case is similar in some respects. In 2012, I had to go into an IVA as I was unable to pay some of my personal creditors due to a Company going bankrupt owing me a large amount of money. At the time I had a portfolio of 30 properties which were not and never had been in arrears. I advised all the mortgagees of the properties that my only solution was to go into an IVA regarding my personal debts and that the mortgages would be continued to be paid.

 

 

Within 3 weeks of the IVA being completed, Mortgage Express called in the mortgage loans on 15 of the properties I held with them and a week later (even after I had paid all of the mortgage payments for that month on the due date) they appointed LPA Receivers.

 

 

The LPA Receivers wrote to my tenants and even told those tenants that queried their requests, that this was because I was 2 or more months in arrears with my mortgage payments - which was totally untrue! Within the first month of their appointment, I lost 9 of the 15 tenants and those properties were then sold at ridiculously low prices. There are just 3 properties remaining which are tenanted.

 

 

Mortgage Express have confirmed that had I not gone into an IVA, they would not have been able to appoint LPAR and that it was their opportunity to reduce their mortgage book by 15 properties in one go.

 

 

The most disappointing aspect in all of this is that my partner who was also on the mortgages but not involved in the IVA, has now had her credit rating destroyed due to the LPAR paying the rent from the tenants at their own pace and not on the due mortgage date. My partner had a perfect credit rating prior to the LPAR being involved and we have begged them to change the late payments and defaults on her file as she was not responsible for these late/non payments following receivership but they say that it is not their fault as they are not responsible for the actions of the LPAR.

 

 

Not only have we lost £1,500,000 in the properties that were repossessed but an income of £11,000 per month. My partner cannot get a small car loan to replace her 13 year old car which has finally given up and without a car she will lose her job.

 

 

The remaining properties with other lenders are all on a high interest rates and cannot be re-mortgaged due to our credit ratings. They have all been managed impecably with mortgage payments being made on time each month.

 

 

Is there any advice available regarding this situation?

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