2nd Charge RBS Business OD (Guarantor) – Call Up Notice Received (Scotland)

[tigercub]

I have an overdraft which is secured against my house with a 2nd charge against my property,

 

recently had to close my business due to now work coming in and

 

I am now left with a whopping £34k due back to the bank from my secured overdraft.

 

Can I follow the same procedure as credit card requesting a copy of the CCA and see if it enforceable or am I not in luck as it is a secured overdraft?

[rory32]

Even if it wasn't secured you would not be able to use the Act, e.g. requesting a copy of the agreement, in the same way as a credit card. Overdrafts have part V (form and content) exemption from the Act which would mean that the copy of the agreement would simply be a letter from the bank stating the amount of the overdraft, etc.

 

The fact that the overdraft is secured would mean that it can be easily enforced anyway even if overdrafts didn't have this exemption.

 

Are there any charges on the account that you could claim back?

 

Is this a personal overdraft or a business one?

[tigercub]

Hi sorry for not getting back sooner been away.

 

It's a business overdraft with a personal guarantee, 2nd charge against my house which is a nightmare as they could if necessary take the house even though I have written to them 4 times in the last 8 weeks with no response at all from them!!

 

They seem to be dragging there heals for whatever reason.......

 

Any help greatly received....

[tigercub]

When I moved house a few years back there was NO dead of postponement put in place

with regards to an outstanding secured overdraft facility that I had with the bank.

The week before moving the solicitor explained that I would have to pay back the outstanding balance

with any equity that remained in the property before he could settle my new mortgage.

I subsequently phoned my bank manager who spoke to the solicitor

and said don’t worry we will sort it this end and you wont have to pay it back.

 

Now a few years down the line my business has gone bellyup and the bank are calling up the debt via the secured overdraft.

I have several areas of concern and various arguments with the bank however wanted to concentrate on this point.

When the mortgages were changed over there should have been a deed ofpostponement put in place which didn’t happen.

Is it a legal requirement to do it?

 

Obviously the bank cannot locate the deed of postponement which I have requested because it doesn’t exist

but I wanted to know the legalities of them not having done it?

 

Any thoughts?

[tigercub]

Morning,Ill try and keep this simple and to the point.

 

I am joint guarantor for a business loan from Bank of Scotland that was called up in Jan 2009 (Almost 5 years ago)

 

The call up had the incorrect address, namely the postcode and my wife’s name was also completely wrong.

 

I have managed to fight it so far over the last 4 years and ten months.

 

However I have just received a Calling Up Notice from there solicitor

demanding payment within 2 months or they will pursue repossession of the property.

 

They have always contacted me and not my wife who is also down as Guarantor.

 

The calling up notice is in my name and I have also had a letter from the local authority regarding potentially being made homeless.

 

Now my question is as the Bank already sent me a ‘call up’ 4 years and 10 months ago

can they call up the loan again?

 

They are essentially calling up the loan twice?

 

I was under the impression that the loan would become time barred in January of 2014 as when we reached 5 years it would be staturte barred

 

however as the loan is not governed by the CCA its actually 12 years!

 

The Bank cant produce or are withholding some paperwork that I have asked for,

namely the valuation report for the house (Which they don’t have) in order to work out

how they can provide a loan higher than the value of the equity within the property

at the time resulting in me filing a case of “Unfair Relationship”

[IdaInFife]

It depends, as you state you have fought the original notice.....how did you do this on what basis

 

It sounds as though the original notice was invalidated and they have started the process again

 

Shelter may be your best option for sound advice

 

http://scotland.shelter.org.uk/get_advice/advice_topics/repossession_of_your_home/repossession_procedures/calling_up_notice

[tigercub]

Thanks Ida,

 

I believe the initial calling up notice received 19th Jan 2009 is about to expire.....

 

In line with the Conveyancing and Feudal Reform (Scotland) Act 1970 I believe that under section 19- Calling up on standard security paragraph 11 states:

 

(11) A calling-up notice shall cease to have effect for the purpose of a sale in the exercise of any power conferred by the security on the expiration of a period of five years, which period shall run-

 

(a) in the case where subjects of the security, or any part thereof, have not been offered for or exposed to sale, from the date of notice

 

(b) in the case where there has been such an offer or exposure, from the date of the last offer or exposure

 

However the calling up notice should be in conformity with Form A of schedule 6 to this act. I am not sure if this is the case? The notice we have from Jan 2009 also has the incorrect post code and my wifes name is spelt incorrectly, so in my opinion is invalid and unenforceable anyway. They refer to the call up in there core banking data which they have also sent me and in this document; which is some sort of system for them keeping notes, they even refer to the property at the wrong address.

 

The new calling up notice they have sent me (Can they issue a second one if the first one hasn’t expired?) is dated 5th November and states we must pay within 2 months. I am sure then that this will take us up to Sunday 5th January 2014. Exactly 14 days before the initial calling up notice is due to expire and render it unenforceable.

 

If this is the case the new calling up notice runs over the festive period where there is approx two weeks of down time where nothing can be done and in fact will hinder the process and not give me a full two months? Not sure if I can argue this? Does this mean that I can ask to have them extend this by two weeks up until 19th Jan 2014?

[IdaInFife]

I am sure they can send another calling up notice if they feel the original was incorrect - if anything is wrong or the first one is agrues etc then they have to start from the beginning again.

 

The 2 months is 2 months irrespective of holidays.

 

Did you call Shelter?

[tigercub]

Thanks Ida,

 

I am awaiting an appointment with the original solicitor I used 8 years ago when the overdraft was created.

 

We received a letter from the local authority as well. Shelter is next on the list to contact

[IdaInFife]

[tigercub]

Question Ref Calling Up Notice as stated above:

It has come to light that the call up notice that was served in November 2013 was invalid

due to the fact that the Bank failed to follow the pre action protocol before issuing the notice.

 

With this in mind the original Call Up issued in Jan 2009 has well expired

and as the 2nd call up issued November 2013 is invalid

 

there has been a period of more than five years since the original paperwork was received.

 

Does this mean that they can still pursue the debt or does this become extingushed?

Can they issue another call up notice even though 5 years has since passed?

 

Any help greatly appreciated

[tigercub]

I received a call up notice over 5 years ago which expired in January 2014.

 

In line with the Conveyancing and Feudal Reform (Scotland)Act 1970 I believe that under section 19- Calling up on standard securityparagraph 11 states:

 

(11) A calling-up notice shall cease to have effect for thepurpose of a sale in the exercise of any power conferred by the security on theexpiration of a period of five years, which period shall run-

 

(a) in the case where subjects of the security, or any partthereof, have not been offered for or exposed to sale, from the date of notice

 

(b) in the case where there has been such an offer orexposure, from the date of the last offer or exposure

 

With this in mind and the fact that the original notice has expired & There has been communication between the bank and myself in the 5 year period – does this render the debt extinguished or can they simply just re-issue a new call up notice?

[citizenB]

I will alert those on the Site team who might be able to help with this.

[citizenB]

I have just googled and found this on Shelter Scotland..

 

 

Calling-up notice has expired

 

If you have been served with a calling-up notice and this has expired your lender can take you to court to repossess your home once they have complied with the pre-action requirements.

 

 

There is a lot more, so if you scroll down to the section that I have quoted above, you can then read more.

 

You might want to speak to Shelter Scotland to see if they can offer further advice.

 

 

 

 

Phone Shelter Scotland's free housing advice helpline on 0808 800 4444.

 

http://scotland.shelter.org.uk/get_advice/advice_topics/repossession_of_your_home/repossession_procedures/overview_of_the_repossession_process

[citizenB]

http://www.legislation.gov.uk/ukpga/1970/35/section/19

 

And this from andyorch

[tigercub]

Thanks for the feedback. The call up notice gave me two months to pay before they could take action however this was five years ago. The call up notice has expired and is now null and void.

 

The lender needs to comply with pre action protocol before issuing a call up notice or starting repossession proceedings.

 

My question is still now that the call up notice has expired after 5 years can they then by law start the clock ticking again by issuing a second call up notice?

 

I will contact shelter but from a point of view of law I can't see how they can just issue another notice if they failed to act on the first one issued in 2009

[tigercub]

[F6Subject to subsection (12) below,] a calling-up notice shall cease to have effect for the purpose of a sale in the exercise of any power conferred by the security on the expiration of a period of five years, which period shall run—

 

(a)in the case where the subjects of the security, or any part thereof, have not been offered for or exposed to sale, from the date of the notice,

 

(b)in the case where there has been such an offer or exposure, from the date of the last offer or exposure.

 

[F7(12)A calling-up notice calling up a standard security over land or a real right in land used to any extent for residential purposes ceases to have effect on the expiration of a period of 5 years from the date of the notice.]

 

I think this basically says the notice ceases to have affect after five years but can they restart the clock by re issuing another notice?

[citizenB]

I think perhaps Shelter might be able to answer your question as to whether they can start the clock again. It would be appreciated, if you could let us know the answer if you do contact them

 

Obviously we would hope that they are not permitted to simply reissue and start all over, they have after all, had 5 years to get their act together.

[tigercub]

Just off the phone with Shelter - Essentially they are saying that the lender can issue as many call up notices as they like and can continue to do so until they eventually take me to court ;-(

 

They have seen some Lenders issue several call up notices before eventually taking people to court and repossessing the property.

[IdaInFife]

i am afraid that is correct..............they can issue as many as they want but can only act on correctly issues one

[pancake roll]

Hi Tigercub,

Any update with your thread. I have been reading with interest. Just received my Calling Notice Today.

PK