gullyver v HSBC and their attitude to bank charges & complaints

[Gullyver]

]This is a very interesting post.

 

Well dear friends consider me in as I have a mountian of problems with HSBC. The bank is acting as a bunch of pirate of the worst kind.

 

My problem with HSBC begun last March 2013 when they send me a letter stating that they would add £20,000 to pay for service charges claimed by that fraudster of the freeholder.

 

these the steps I took so far:

 

1) Asked the bank to show me the lawful evidence which should authorise their enforcement of the Mortgage Deed terms and conditions with 3 Letters of Conditional Agreement (e.g. I agree to pay if you show me the evidence)

 

2) The bank refused to show me the evidence I asked them.

 

3) I sent them a letter of Data Access Request letter (plus £10 cheque and proof of identity) and now waiting for their reply

 

This is the brief background of the story:

Lenders + Freeholder vs Leaseholder

- In 2013 HSBC have been approached**by the freeholder informing them of a 2012 LVTribunal determination to pay for service charges arrears (which we still dispute) amounting to almost £12,000.

 

- The Tribunal determined we had to pay for £12k plus some of the freeholder legal costs. To that bill the freeholder added a bill of almost £100.000 to cover his costs awarded against the leaseholders increasing our service charge bill to almost 20k per flat.

 

- We presented two appeals in 2012 (to the LVT and to the Upper Tribunal) both rejected with great surprise given the evidence available. I must add that there is no county court injunction to back up the tribunal determination and I have never received a section 146 Notice from the freeholder.

 

- I contested the services charges bill explaining to the lenders all the reasons why we dispute the service charge bill and I informed the lenders that they were refused the authorisation to pay the freeholder's bill explaining also stating that the case is still in dispute as a judicial review case was going to be filed (it is filed now).

 

- In March 2013, surprisingly for us, the lenders decided to pay anyway adding the sum to my mortgage with interests**to protect 'its security' as they claimed that they were presented with a section 146 Notice by the freeholder.

 

- In the last four months I asked the lenders to provide the lawful evidence authorising them to pay on my behalf and against my will. So far, no replies from them after nearly 4 months and 7 letters. I also added that I would sue the bank if they pay the sum.*

 

- A week ago' a sent a letter with a formal notice of Data Access Request letter (plus £10 cheque and proof of identity) asking the bank to provide every document including my name and surname in relation with the mortgage account and with the unlawful payment they added to my mortgage

 

UNANSWERED QUESTIONS:

How is it possible that HSBC took the responsibility to pay on my behalf without a successful County Court Injunction determination and without me receiving a section 146 Notice by the freeholder?

 

I am aware that if the alleged breach relates to arrears, you cannot serve a valid section 146 notice where the amount of service charges, administration charges or ground rent owed (or a combination of all of these) total less than £350, or have been outstanding for less than three years.* In actual fact not only the £12k bill issued in summer 2012 is not more than 3 years old but also the legal costs (7k) were added by the freeholder only in late in 2012.

 

Given the FSO bad reputation for handling cases against consumers I decided that it is better to start legal proceedings against the lenders because I do not believe that they could act in a such way without having and providing us with the lawful evidence necessary?

 

Thanks in advance for any opinion if you have any, in the meantime I will keep you informed as soon as the bank will reply to my Data Access Request letter.

 

tired Gullyver

[citizenB]

Right, well they have 40 calendar days to comply with your request. Did you send it by a tracked method.. recorded or special delivery ? If so, then you need to check the Royal Mail Website to make sure it has been signed for.

 

I will send out an S.O.S for you to those who have some experience in these service charges.

[stu007]

Hi Gullyver

 

To get better advice on your issue could you possibly give a link to the LVT Decision as it will give a better understanding of issues.

 

Are there any clauses in the Mortgage documents about the freeholder?

 

Are there any clauses in the Title Deeds for the Property to do with the freeholder?

Edited July 8, 2013 by stu007

[Gullyver]

-QUOTE-.....Are there any clauses in the mortgage documents about the freeholder?

 

Are there any clauses in the Title Deeds for the Property to do with the freeholder? -QUOTE-

 

Dear friend, I went through the documents and I cant see any particular clause about the freeholder.

 

In brief my conveyance solicitor confirmed in 2013 that response to my conveyance survey in 2005 was mentioning that 'no major works' were planned at the property so I was told that there was nothing outstanding to pay for repairs.

 

As soon as I moved in 2005 I was left under a defective roof with heavy leaks for almost 6 years.

 

However, I have recently found evidence that the freeholder demanded a large sum 5 years before my conveyance in 2000 to repair the roof and the building but he never carried out those repairs until 2010. Hence fraudulent misrepresentation in 2005.

 

After that he kept the property in a total disrepair for almost 6 years and in 2012 then asked almost £20,000.00 (to each flat) for repairs in 2012.

 

In 2013 the bank received a forfeiture notice 146 by the freeholder (I did not receive this notice) and force me to pay under duress by adding the sum to my mortgage.

 

In addition my flat's lease has a missing page (confirmed also by the Land Registry few days ago'). So how was it possible for the bank to grant a mortgage in 2005 without a complete lease? and why my conveyance solicitor did not report this to me before my purchase?

 

Who do I need to take to court: the bank, the freeholder or my conveyance solicitor?

 

Please help as I am now in arrears with my mortgage repayments.

 

Any advise or opinion is appreciated

 

Disheartened:-( Gullyver

Edited July 16, 2013 by Gullyver

[caro]

Have you seen copies of the invoices for the roof repairs and the freeholders legal costs?

 

How many flats are in the block?

[Gullyver]

Have you seen copies of the invoices for the roof repairs and the freeholders legal costs?

 

How many flats are in the block?

 

Dear Caro, there are 8 flats in the block.

 

The bills were sent with letters rather than invoices. There is no wet signature and no personal names, just the name of the company of solicitors used (and owned) by the freeholder.

 

I contested the bill and refused to pay as the £20,000.00 was the result of a scandalous LVT's determination plus £96,000.00 legal fees added by the freeholder for a 1 day hearing just to get a scandalous decision against the victims of 15 years of disrepair.

 

There are clear indications that the joint expert appointed by the LVT and by the RICS was either bribed and/or pressurised by the legal firm of the freeholder. For example, in 2009 he wrote a 1st structural report stating clearly all the damages caused by the prolonged negligence of the freeholder and stating that in his view the roof was old and in those conditions for at least 10-20 years.

 

But in 2012 the joint expert then made a gigantic U-turn providing a second report (given only 2 days before the hearing and out of any deadline fixed by the tribunal so we had no time to make cross-analysis) stating that the leaseholders were liable to pay 95% of the total repair bill without any explanation and without reporting all the other expert opinions and reports available in complete breach of Part 35 - Witnesses and Assessors Rules. Any tribunal and court I went after was pointed out all these crucial details.

 

Both Upper Tribunal and High Court of Justice were given ample evidence of the several frauds of which 8 families are victims but closed their eyes.

 

In February 2013 - The defrauder (freeholder) sent a 146 Notice (forfeiture) to the mortgage lenders who ended up paying. I never received such notice. So suddenly my mortgage repayments went up and I am unable (and unwilling) to pay the increase. Hence I am now 5 months in arrears.

Edited July 17, 2013 by Gullyver

[steampowered]

You say that you have "Judicial Review" proceedings against the freeholder. Judicial Review cases can generally only be filed against public authorities. What kind of government entity is the freeholder in this case, and what stage is the litigation at?

[Gullyver]

Dear friend,

 

JR has been rejected, and yes, you are correct the claim was against the tribunal which rejected previous appeal.

 

I am left with loads of unpaid damages and the hefty bill to repair the building after over 10 years of disrepair,

 

The summary of the story is in this post above.

 

Really disheartened and disappointed

[caro]

I believe that as a leaseholder you could ask to see a breakdown of how the invoices were calculated. It seems its the legal costs that are an issue. You could phone the SRA for advice as to whether you can challenge the costs.

[steampowered]

Without knowing the details of your case or what it is about, it sounds like you appealed it to the Upper Tribunal and then to the High Court but your appeal was rejected both times. With this in mind it will now be very difficult if not impossible to challenge the determination made by the LVT. The LVT is a statutory tribunal which issues legally binding decisions and does not need a county court injunction to back it up. I would think HSBC are entitled to pay the freeholder where there is a legally binding judgment and where there is a risk that your lease would be forefeit if the money is not paid.

 

The costs sound rather excessive - do I understand correctly you are looking at more than 90k for a one day hearing relating to a 20k claim? What were you actually ordered to pay, who ordered it and were the costs ever assessed?

[Gullyver]

Without knowing the details of your case or what it is about, it sounds like you appealed it to the Upper Tribunal and then to the High Court but your appeal was rejected both times. With this in mind it will now be very difficult if not impossible to challenge the determination made by the LVT. The LVT is a statutory tribunal which issues legally binding decisions and does not need a county court injunction to back it up. I would think HSBC are entitled to pay the freeholder where there is a legally binding judgment and where there is a risk that your lease would be forefeit if the money is not paid.

 

The costs sound rather excessive - do I understand correctly you are looking at more than 90k for a one day hearing relating to a 20k claim? What were you actually ordered to pay, who ordered it and were the costs ever assessed?

 

You are correct dear friend,

 

the cost were not assessed and what's the point to come back for the legal expenses against the same tribunal (LVT) who awarded the cost against the victims and refused to reconsider the case by rejecting the appeal?

 

the repair bill (outrageously) reversed over the victims of the disrepair was roughly £85,000.00 but then as if the injustice was not enough, the LVT added the freeholder legal expenses to pay as well simply because we wrote 'too many times' after we were left with a defective building in disrepair for over ten years......so the legal fees bill for the LVT's claimed by the freeholder's legal firm added £96,000.00 bill and each leaseholder was charged almost £20,000.00.

 

Not only the person who kept in disrepair the building for more than 10 years was not punished for that

but he even managed to make profit for his own legal firm by puttingn his pocket almost £150,000.00.

 

Where is justice in this?

[Gullyver]

Without knowing the details of your case or what it is about, it sounds like you appealed it to the Upper Tribunal and then to the High Court but your appeal was rejected both times. With this in mind it will now be very difficult if not impossible to challenge the determination made by the LVT. The LVT is a statutory tribunal which issues legally binding decisions and does not need a county court injunction to back it up. I would think HSBC are entitled to pay the freeholder where there is a legally binding judgment and where there is a risk that your lease would be forefeit if the money is not paid.

 

The costs sound rather excessive - do I understand correctly you are looking at more than 90k for a one day hearing relating to a 20k claim? What were you actually ordered to pay, who ordered it and were the costs ever assessed?

 

Dear friend,

 

In relation to the above, when someone receives a forfeiture notice (also known as 146 notice) should him be given the opportunity of a remedy to either pay or contest the alleged charges?

 

Please note that:

A) I have never received any forfeiture notice and this was sent directly to my mortgage lenders who paid against my authorization.

Question: Shouldn't I receive the 146 notice as it will affect me, why the notice was sent to the bank? Also, a 146 notice must be a VALID notice which mean it must be served correctly. As far as I know the arrears must be older than 3 years to serve such notice. Has anyone any information about this point?

 

B) the case of disrepair and unfair service charges about the property was already debated and dealt with successfully in the LVT 3 times and also in the High Court of Justice and in the County Court. In each case the the freeholder was found liable for a prolonged disrepair. I reported those cases to the court but they were ignored. So how is it possible that someone who has been found guilty for disrepair which lasted for over 10 years is then entitled to ask money for repairs from the victims who endured the consequences of six years of leaks, damp and loads of unpaid damages? in 2011 even the building insurance refused to pay as according to them the property was left in disrepair and so it was wear and tear excuse for them to not pay our damages.

 

C) Yes you are correct, in October 2012 I received the service charges bill by the freeholder to which he added our share of a £96,000.00 for legal expenses (the LVT ordered us to pay 50% of his legal fees) and so our bill rocketed up to almost £20,000.00. In October 2012 I received no invoices, no wet signatures, no names on the letter just the name of the freeholder legal firm on the letter requesting the sum.

[steampowered]

Hi Gullyver,

 

I understand this must have been incredibly frustrating. I am very reluctant to comment and start giving clear advice on a complicated issue like this as I do not know the full details and have not seen the documents.

 

My understanding is that the LVT/County Court/High Court have already set the charges. If so I assume there is now an LVT decision setting out the charges each leaseholder must pay. It will be very difficult to challenge this amount now because the litigation has already concluded and you have already had your appeal.

 

I am not an expert in landlord/tenant matters so welcome comments from anyone more knowledgeable. Section 146 itself only talks of a "reasonable time" for remedying breach of the lease. I do not think you right to say that the arrears must be older than 3 years old. A s146 notice should be served on you, but a copy would normally go to the bank, as the bank is protected by entry of a restriction on the register for your property.

 

I am not sure what has happened with legal fees. I am a little surprised that the LVT ordered anything as my understanding was that it does not have the power to award legal costs (see http://www.tanfieldchambers.co.uk/Asp/uploadedFiles/File/Recovery%20of%20costs%20in%20service%20charge%20disputes%20in%20the%20LVT.pdf). If you mean legal costs were recovered through the LVT adjudicating on a contractual provision as part of the service charge, which the LVT does have authority to adjudicate on, then you would need to check whether that 96k is indeed 50% of the landlord's costs. If that is the case, then the landlord is 96k out of pocket so has not escaped unpunished.

 

My personal view is that you need to think "long-term" here. Remember that the service charge has been adjudicated by the LVT. You would therefore have no grounds to resist a properly served s146 notice. If the bank didn't pay, the landlord would be entitled to forfeit the lease and have you evicted from the property. I assume this is not the result you are looking for. I do not doubt that the bank was legally entitled to the pay the service charge under your loan agreement in light of the risk of forfeiture of the lease and in light of the fact that the service charge had been adjudicated by the LVT. It may be best to direct your energies towards this 96k charge rather than towards the bank.

[Gullyver]

Thank you dear friend,

 

However the LVT determination is based on a complete disregard of the evidence presented and on the expert opinion 100% biased on one side. Where there is an alleged tort, there is an alleged liability and where there is liability there should be a remedy. I was denied the remedy and a 146 Notice must be valid. The notice served to the lender is undated, unsigned and it was never served to me. it was a (big) mistake of the lenders who took the responsibility to pay without consent and without investigating the matter (plus the incomplete lease and misrepresentation of the property to the conveyance solicitor)