mortgage repossession law and practice in Scotland - updates 2015

[pancake roll]

Hi,

I contacted SHELTER SCOTLAND regarding Calling up notice in Scotland and they gave me a very good information .Below i have paste the information from Shelter Scotland for fellow Scots who's been threathend Repossession by the Bank.

 

 

 

 

Dear ..............

 

 

Further to our telephone conversation I have the following information for you.

 

I note that you wish to challenge a Calling-up Notice on the basis that RBS have so far failed to provide you with a breakdown of the money due by you. There are two legal provisions to consider at this stage.

 

 

There are two legal provisions to consider at this stage.

 

Firstly, under Section 19(9) Feudal Conveyancing and Reform Act 1970, upon receipt of a Calling Up Notice, a debtor may request a ‘statement of the amount as finally determined.’ This must clearly be in response to the debtor having received the Notice, as opposed to a general request for information, Bank of Scotland v. Flett 1995 SCLR 591.

 

The creditor must respond within one month from the date of serving the Calling Up Notice (s19(9).

 

Should the creditor fail to comply with the request, the Calling Up is of no effect. Should they provide the statement as requested and within one month of service of the Calling Up, the notice will take effect. The debtor nevertheless has the opportunity to attend court or be represented, and she may have a Pre-Action Requirement defence as follows:-

 

It is also possible to raise court proceedings for suspension of a Calling up Notice, however this would be where the existence of the debt is disputed and not for a dispute as to the level of the debt, and the breakdown of the various component parts- interest, charges etc.

 

Secondly, under Section 24A(2) of the Feudal Conveyancing and Reform Act 1970 which covers the Pre-Action Requirements creditors are now required to provide the debtor with clear information about:-

 

(a)the terms of the standard security;

(b)the amount due to the creditor under the standard security, including any arrears and any charges in respect of late payment or redemption; and

©any other obligation under the standard security in respect of which the debtor is in default.

 

The Applications by Creditors (Pre-Action Requirements)(Scotland) Order 2010, Article 2 states that

 

(2) In providing the debtor with clear information for the purposes of section 5B(2) of the 1894 Act and section 24A(2) of the 1970 Act—

(a)information about the terms of the security must include a description of the nature and level of any charges that may be incurred by virtue of the contract to which the security relates if the default is not remedied; and

(b)information about the amount due to the creditor under the security, including any arrears and any charges in respect of late payment must be broken down so as to show—

(i)the total amount of the arrears; and

(ii)the total outstanding amount due including any charges already incurred.

(3) For the purposes of those sections “charges” do not include any expenses for which the debtor is personally liable to the creditor by virtue of paragraph 12 of Schedule 3 to the 1970 Act, as read with section 11 of that Act(1).

(4) The information required to be provided to the debtor by virtue of those sections must be provided as soon as is reasonably practicable upon the debtor entering into default.

 

It is not entirely clear whether this requirement to provide clear information applies both before expiry of the Calling up Notice and after expiry. In any event, it would be advisable for you write to RBS or their solicitors requesting this information before service and after expiry.

 

Should the creditor fail to comply with the Pre-Action Requirements the action would be incompetent.

 

If you receive court papers you should take legal advice as soon as possible.

 

 

 

Helpline Adviser

T: 0808 800 4444

 

 

Shelter Scotland

Glasgow Advice Service

1st Floor, Suite 2

Breckenridge House

274 Sauchiehall Street

Glasgow, G2 3EH

[pancake roll]

Hi,

I contacted SHELTER SCOTLAND regarding Calling up notice in Scotland and they gave me a very good information .Below i have paste the information from Shelter Scotland for fellow Scots who's been threathend Repossession by the Bank.

 

 

 

 

Dear ..............

 

 

Further to our telephone conversation I have the following information for you.

 

I note that you wish to challenge a Calling-up Notice on the basis that RBS have so far failed to provide you with a breakdown of the money due by you. There are two legal provisions to consider at this stage.

 

 

There are two legal provisions to consider at this stage.

 

Firstly, under Section 19(9) Feudal Conveyancing and Reform Act 1970, upon receipt of a Calling Up Notice, a debtor may request a ‘statement of the amount as finally determined.’ This must clearly be in response to the debtor having received the Notice, as opposed to a general request for information, Bank of Scotland v. Flett 1995 SCLR 591.

 

The creditor must respond within one month from the date of serving the Calling Up Notice (s19(9).

 

Should the creditor fail to comply with the request, the Calling Up is of no effect. Should they provide the statement as requested and within one month of service of the Calling Up, the notice will take effect. The debtor nevertheless has the opportunity to attend court or be represented, and she may have a Pre-Action Requirement defence as follows:-

 

It is also possible to raise court proceedings for suspension of a Calling up Notice, however this would be where the existence of the debt is disputed and not for a dispute as to the level of the debt, and the breakdown of the various component parts- interest, charges etc.

 

Secondly, under Section 24A(2) of the Feudal Conveyancing and Reform Act 1970 which covers the Pre-Action Requirements creditors are now required to provide the debtor with clear information about:-

 

(a)the terms of the standard security;

(b)the amount due to the creditor under the standard security, including any arrears and any charges in respect of late payment or redemption; and

©any other obligation under the standard security in respect of which the debtor is in default.

 

The Applications by Creditors (Pre-Action Requirements)(Scotland) Order 2010, Article 2 states that

 

(2) In providing the debtor with clear information for the purposes of section 5B(2) of the 1894 Act and section 24A(2) of the 1970 Act—

(a)information about the terms of the security must include a description of the nature and level of any charges that may be incurred by virtue of the contract to which the security relates if the default is not remedied; and

(b)information about the amount due to the creditor under the security, including any arrears and any charges in respect of late payment must be broken down so as to show—

(i)the total amount of the arrears; and

(ii)the total outstanding amount due including any charges already incurred.

(3) For the purposes of those sections “charges” do not include any expenses for which the debtor is personally liable to the creditor by virtue of paragraph 12 of Schedule 3 to the 1970 Act, as read with section 11 of that Act(1).

(4) The information required to be provided to the debtor by virtue of those sections must be provided as soon as is reasonably practicable upon the debtor entering into default.

 

It is not entirely clear whether this requirement to provide clear information applies both before expiry of the Calling up Notice and after expiry. In any event, it would be advisable for you write to RBS or their solicitors requesting this information before service and after expiry.

 

Should the creditor fail to comply with the Pre-Action Requirements the action would be incompetent.

 

If you receive court papers you should take legal advice as soon as possible.

 

 

 

Helpline Adviser

T: 0808 800 4444

 

 

Shelter Scotland

Glasgow Advice Service

1st Floor, Suite 2

Breckenridge House

274 Sauchiehall Street

Glasgow, G2 3EH

[citizenB]

pancake, can you please advise if this information is on Shelter's website ?

[pancake roll]

Hi CitizenB,

Yes, you can get this information on the Shelter Scotland website. They were very helpful to me over the phone and email. The information above was that i received from an advisor from Shelter Scotland and she replied to me direct by email.

[citizenB]

Righto, thanks for that

[pancake roll]

Hi,

 

Useful information for anyone lives in Scotland .

Information regarding repossession in Scotland.

 

The Article was written by GOVAN LAW CENTRE.

 

Security of your home

15 July 13

 

Since the 2010 Supreme Court ruling in Wilson, a number of sheriff court decisions have further clarified mortgage repossession law and practice in Scotland

 

by Govan Law Centre

The landscape of mortgage repossession procedure in Scotland has dramatically changed in recent years.

 

 

2010 saw the introduction of the Home Owner and Debtor Protection (Scotland) Act 2010,

as well as the crucial decision of the UK Supreme Court in Royal Bank of Scotland v Wilson [2010] UKSC 50.

 

The 2010 Act amended the legislative framework by strengthening the rights of home owners in repossession proceedings.

It stipulates that all such cases must call in court.

It sets down matters which a sheriff must have regard to, where a defence is stated.

 

 

These include the reasons for the default,

the likelihood of the debtor fulfilling their obligations under the security within a reasonable time,

any action taken by the lender to allow the debtor to fulfil these obligations,

whether the debtor is taking part in a debt arrangement scheme,

and whether the debtor and other residents will be able to source alternative accommodation on repossession.

 

Another significant element of the Act was the introduction of pre-action requirements (PAR),

through amendments to the Heritable Securities (Scotland) Act 1894

and the Conveyancing and Feudal Reform (Scotland) Act 1970.

 

 

The PAR (see panel) place responsibilities on lenders to carry out certain actions prior to commencing proceedings against a home owner,

thereby requiring lenders to demonstrate that they have considered reasonable alternatives to legal action.

A lender is only entitled to commence court action if they have complied with these requirements.

 

 

Accordingly, lenders have to provide evidence of PAR compliance in a Form 11C, which should be lodged with the court.

If a lender does not provide satisfactory documentation, the action may be rendered incompetent.

 

In November 2010, the Supreme Court in Wilson determined that calling-up notices are required in all cases

where lenders seek to instigate repossession proceedings for mortgage arrears.

 

This means that prior to raising an action,

a document giving two months’ notice to the borrower to repay the whole sum outstanding, including arrears, must be served.

The court held that a lender’s letter of default in this case did not satisfy the requirements of the 1894 Act.

This decision was revolutionary in clarifying the rights of debtors subject to repossession proceedings.

 

 

 

For the full article read.... http://www.journalonline.co.uk/magazine/58-7/1012824.aspx#VN8RRdlyGP9

 

 

 

Contributors to this article were Samantha Brown, Clare Burnie, Lynn Fraser, Christine McKellar and Laura Simpson of Govan Law Centre.

 

Govan Law Centre acted in the cases of Millar and McConnell, Doyle et al, Pervez and Gallacher.

 

Making PAR

 

Under the statutory pre-action requirements (PAR), lenders must:

 

 

1.Provide a homeowner with clear information about the terms of the loan,

and the total amount due, inclusive of any charges pertaining to late payment or early repayment.

Additionally the lender must provide the debtor with clear information about any other debt owed to them.

 

 

2.Make reasonable efforts to agree a repayment plan with the debtor.

 

 

3.Not commence court proceedings for repossession if the debtor is taking action to clear their arrears

or outstanding loan balance within a reasonable time; and

 

 

4.Provide the debtor with information on how to obtain advice about their debt management problems.

Edited February 17, 2015 by citizenB

[dx100uk]

I have taken the liberty of merging your two threads

and placing them as a perm sticky

 

 

that way they wont fall off

please continue to post updates here

 

 

these are VERY useful

 

 

dx

[oweny]

Just been told by SHELTER sarah their not taking any new legal cases on..