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    • The court will probably tell you to submit an application.....but that involves a fee of £100...its their error so you shouldn't be required to. Because your DQ has not been processed ...its simply been overlooked and placed at the claimants venue.....which is incorrect..speak to the court.
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Property possessed by Nat West, sold at a loss, balance required.


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I've just been reading through an old thread on here regarding Carmel Butler's Memorandum

to the House of Commons Treasury regarding mortgage securitization,

which I have referred to in my skeleton argument for my defence in a possession hearing I have tomorrow.

 

Does anyone such as supersleuth or enoughisenough or Smarterchick have any updates on how they got on,

 

as the other thread seems to have dried up?

 

If anyone can tag/link them in here as I don't have enough posts yet, that would be very good of you.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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The Judge adjourned the case in order that I can file a full formal defence as I only submitted a skeleton argument.

 

The difficulty I have now is that it is not a mortgage but rather is a Flexible Business Loan payable on demand and not covered by the CCA.

 

Does anyone here know if it is likely that the legal title has been sold on to an SPV

and if so where can I find evidence of this?

 

Also is there an alternative to an SAR that I could use to get the info from the lender?

 

In Lak'ech

 

Simon

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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CPR 31.14 or CPR 18 ?

 

Andy

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Thanks Andy, I'll have to check if I can use either of those.

 

 

It was contended by Rat's Nest's solicitor that because this is not a standard repayment mortgage

but is a mortgage payable on demand the court could only use "section 36 of the Administration of Justice Act alone",

so not sure what that's all about, although the Judge did say "that was an accurate statement of the law.".

 

 

I'm still not sure how I ended up without them getting a possession order really,

luckily the Judge was at least sympathetic that I had put in a defence of some sort.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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We could do with some help from you.

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Interesting, he has adjourned the case in order that I file a full formal defence though, which is not what S36 is for.

 

 

It's looking like I might be able to get Legal Aid/CLA specialist adviser's help if they decide to take the case on.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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Unfortunately I missed a call from the specialist adviser and am having difficulty getting them to ring again :(

 

 

As far as I can see, part of what I need to do is to serve a notice under CPR 32.19 that I wish the flexible business loan/mortgage document to be proved at trial.

 

 

I suppose I'll have to do a S31 request first but which part for requesting documents concerning any dealings concerning the loan agreement with any and all 3rd parties, such as SPVs?

 

I must admit I'm at a bit of a loss as to how to compose my defence in the best way as there are so many factors involved.

 

 

They have previously tried to bankrupt me back in 2009, which they eventually withdrew from,

 

 

then obtained a judgement against me behind my back by writing to my old address,

which I managed to get set aside.

 

 

So I do think it was their fault that they have already wrongly brought two cases against me and there should therefore not be any further charges added to the amount claimed.

 

Also I have already tried to tender a payment via the Court Funds Office back in 2009, which according to the Bills of Exchange Act 1882 was accepted.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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sent off a CPR 31.14 request letter which was signed for on 21/4/2015 but have now

 

 

received a court order to file a fully pleaded defence by 1/5/2015 so there will not be enough time for the Claimant to comply and not enough time for me to uncover evidence of any transaction with an SPV/SPE,

looks like I'll have to file an embarrassed defence.

 

 

No joy from Civil Legal Advisor Specialist as they say it's too complicated for them to take on and can only suggest I need a Solicitor.

 

 

I'm a bit unsure as to whether this means I am eligible for Legal Aid or not and if not whether Pro Bono might be of any help but time is not on my side it seems.

 

Just wondering if I can now tag people who have researched some of this such as Smarterchick, supersleuth and enoughisenough :smokin:

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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Just wondering if I can now tag people who have researched some of this such as Smarterchick, supersleuth and enoughisenough :smokin:

 

As it's over 2 years since any of these people have been on CAG I wouldn't hold my breath.

 

I don't think you'll find this line of argument particularly helpful,

and that you'd probably do better to concentrate on the more successful arguments used to prevent repossession.

 

Have you read Ell-enn's sticky at the top of the forum?

 

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The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Thanks caro, I'll go have a read of that then.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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How does this look?

 

My address

 

Date

 

In the XXXXXX County Court

Claim number XXXXXX

 

Between National Westminster Bank PLC – Claimant

and

Mr XXXXXXXX & Mrs XXXXXXXX- Defendants

 

Defence

 

1) The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence.

I have made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules (see EXHIBIT J), to the Claimant to allow me to properly respond to the claim. Which was received by them on 21st April 2015, so the 7 days allowed for response will not enable me to receive them in time to comply with the court’s order to file a fully pleaded defence by 1st May 2015.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

2) The Claimant may have no contractual rights that the court can enforce against the Defendant on the grounds that

(a) the Claimant is not in contractual privity with the Defendant because the Claimant has sold or mortgaged the mortgage to another company which means that only the new lender is in contractual privity with the Defendant and only the new lender can assert a contractual claim against the Defendant; and

 

 

(b) because the Claimant has sold the mortgage to another company, it has been paid in full for the mortgage and therefore the Claimant has suffered no loss and therefore there is no loss on which the court can be called upon to remedy.

 

3) The mortgage by deed/flexible business loan may be void as the precedent set in the high court, BOS v Waugh & Others [2014] by HHJ Behrens for a mortgage by deed failing to comply with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989, in that the signatures of the mortgagors were not witnessed at the moment the deed was executed, which was also not on the day it was dated; and void ab initio under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, in accordance with United Bank of Kuwait v Sahib, Murray v Guinness, Lloyds v Bryant and Keay v Morris Homes; as well as the principles laid down by Neuberger MR in Helden v Strathmore; namely, that a contract for the granting or mortgages in the future is caught by section 2.

4) District Judge P Evans ordered the original agreement to be produced by the bank or their agents, see EXHIBIT A. Prior to eventually withdrawing the bankruptcy petition Green & Co Solicitors agreed to produce the original agreement to the Court. See EXHIBIT B.

 

5) An offer was made by Alistair Beat of Tenon Recovery to settle the loan at a reduced price of around £36,000, a letter now in the archives of Shelter but again should be amongst the documents requested in my CPR 31.14 request. This could also point to the possibility of the Claimant having a defective title.

 

6) The alleged debt has already been discharged. Legal specie of payment pursuant to the Bills of Exchange Act 1882 has already been lawfully tendered for presentment, accepted by the Court Funds Office on 30th November 2009 and evidenced by electronic signature. Pursuant to the aforementioned Act non-acceptance of that payment should have resulted in any and all liability being discharged. See EXHIBITS C, D, E, F, G, H & I.

 

7) I put the claimant to strict proof that any default notice sent to me was valid.

I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

 

 

The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

8) Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

9) Ownership of the property was transferred into the sole ownership of Simon Robert Elder on 28th August 2008 (see EXHIBITS G & H already supplied). This was a formal transfer not an informal one as suggested by the Claimant’s solicitor at the hearing. Admittedly this should have been registered with the Land Registry. However I consider the fact that the Claimant only petitioned Mr XXXXXXXX for bankruptcy and not my then wife and Business Partner Mrs XXXXXXXX to be indicative that the alleged debt is solely my responsibility as they were informed of the transfer at the time.

 

10) I reserve the right to set off any charges or costs unduly incurred since the initial withdrawn Bankruptcy Petition of 2008/9 and the subsequent Set Aside Judgement of XXXXXXXX County Court Claim Number XXXXXXX of 2011 as all delays in have been the fault of National Westminster Bank PLC or their agents.

 

Statement of Truth

 

I XXXXXXXX, believe the above statement to be true and factual

 

Signed .....................

Edited by Zaniwhoop

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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I'm not a legal expert, but I fear that a lot of what you have put does not hold water, although you really need to post the POC. Have you addressed the issues in that?

 

Are you in a position to make payments going forward, and can you pay anything off the arrears? Have you completed a budget sheet with your income and outgoings?

 

I notice that you've only just sent off the CPR request when andyorch advised that on 13th so a lot of the time that you had has been wasted, so I'm dubious that you'd be given leave to amend it without a proper application and the necessary fee.

 

I will see if I can get someone more knowledgeable than me to look in on this and hopefully give more specific advice.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Whether I am in a position to make payments going forward is irrelevant as the loan is apparently 'payable on demand' and is not a regular repayment mortgage. No, I have not completed a budget sheet either.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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Whether I am in a position to make payments going forward is irrelevant as the loan is apparently 'payable on demand' and is not a regular repayment mortgage. No, I have not completed a budget sheet either.

 

Ok, so let's look at this another way.

 

Given that it isn't a normal mortgage, have you had to make any payments previously?

 

When did you anticipate that it would need to be paid and how did you expect to pay it?

 

Why do you think they are now demanding payment?

 

What action did Nat West take, if any, to try to avoid repossession?

 

I realise that you are looking for alternative ways of avoiding repossession, but don't overlook the more obvious either.

 

I don't mean to be rude, but you haven't really provided a lot of information about how it's come to this which makes it rather hard for anyone to advise on your suggested defence.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Business loans are not protected by consumer legislation

- so any reference to that in your defence is a waste of time as it will be VERY easily debunked by the claimant's solicitor/counsel.

 

You are far better off doing as Caro suggested

- income and expenditure and coming up with an affordable offer for repayment within a reasonable time.

 

 

The judge, whilst technically bound by s36

- and therefore should be inclined to give outright possession

- is quite likely to entertain a reasonable payment plan in respect of this,

given that the business loan is secured on a residential property,

which appears to be the home of others, not just the person who defaulted on the loan.

 

Highly unlikely any lawyer will take this on pro bono (I wouldn't),

as there isn't a solid argument to be made out of the limited facts provided.

 

 

The main facts, as provided

- that it's a business loan and payable on demand, indicate a PO is very likely,

sans an offer that the judge may consider reasonable,

and an argument towards the fact that it is a residential home,

and the home of someone other than just the debtor.

 

Since you are fighting for your residence, legal aid may be available,

but you have left it seriously late to get an assessment for that in.

 

 

..plus don't expect them to go with your line of argument

(or to do it for free - they'll get a charge against your house).

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Thanks caro,

the loan was originally taken out in 2005 to partly fund buying the shop and flat above and was for scheduled regular monthly payments, which were initially paid regularly.

 

 

I then sent them a notice requesting they send me the original agreement as it had come to my attention that fraud in the factum may have occurred and I suspected they had sold the agreement or deed on etc.

 

"What action did Nat West take, if any, to try to avoid repossession?"

They sent some final demand letters demanding the full amount of the mortgage arrears

(interesting as they recently stated the amount didn't include any arrears)

or phone them to arrange a mutually agreeable repayment plan.

 

 

I originally expected to make the monthly payments from the profits of the shop.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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I've had a response from Shoosmiths about the CPR 31.14 request

but they say their client is not obliged to entertain my requests for disclosure

as the court has not ordered them to complete a disclosure exercise at this stage

and apparently my requests will incur unnecessary costs and are superfluous.

 

 

So presumably the next step is an N244 form?

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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N244 application for what ?

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To get the court to order the Claimant to disclose and produce the documents requested via the CPR 31.14 request,

which are needed for me to compose a full defence rather than an embarrassed one.

 

 

Specifically the original loan agreement and mortgage deed

and any information regarding transactions with SPVs or SPEs directly connected with such.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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Be careful.....costs wise ...disclosure follows the defence at a later process...courts tend to view defendants that cant write a defence before disclosure as defendants looking for loopholes.

We could do with some help from you.

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  • 1 year later...

Hi there,

 

I recently had my shop and flat possessed by Nat West, due to a secured business loan (payable on demand), not a mortgage.

 

They have marketed and sold the property at a significant loss, much below the likely market value

and at around half the amount of the outstanding debt and are now after me for the remainder.

 

I do have evidence of an offer I received to buy the property a few years earlier for much closer to the actual market value.

(the sale unfortunately fell through) and neighbouring properties in the same terrace show similar market values.

 

If anyone has any suggestions as to the likeliest ways to deal with this I would be most grateful.

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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Hi Zaniwhoop

 

I'm sorry to hear of your current circumstances....if you could give details of the initial loan and the possession and what they are currently doing and threatening with regard to the balance to enable further advice.

 

I assume the Buisness loan was secured on the property...did you attend court and present any argument to the possession ?

 

Regards

 

Andy

We could do with some help from you.

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Hi Andy,

 

Thanks for the quick reply, sorry but I had gone to bed after posting.

 

To give a bit more background then,

the initial loan was to enable us to part-buy the shop with a flat above.

Without giving exact figures let's say it was around £65K back around July 2005.

 

 

A year or two into the loan I came across various articles regarding

Freeman-on-the-Land and Lawful Rebellion and the like

and realised that fraud may well have occurred with what I was seeing as a mortgage,

 

 

long story short,

I withheld payments and demanded to see or have them send me the original suite of mortgage paperwork including the deeds.

They did not comply with this and eventually they issued a statutory demand.

 

They then petitioned for my bankruptcy, which I managed to defend,

pointing out they had the property as security and there was more than enough equity in it to cover the outstanding.

 

 

The Judge did also order Nat West to bring the original mortgage documents into court

which they agreed to do but then withdrew the petition.

 

Then there was a year or two gap and they then went for a possession order.

Which I did defend

 

 

I then sent them a cheque from WeRe Bank for the full outstanding amount,

which they failed to present correctly as prescribed for clearance,

even though WeRe bank's manager wrote the court a letter assuring them the funds were available,

he even tried to step in and assume the debt

 

 

the Judge was having none of that and gave them a possession order

and said he wouldn't give his permission if I wanted to appeal.

 

What they are currently doing is they have sent us letters saying that they have sold the property at a loss (around £30K)

and they want the balance of around £30K paying

and we need to contact them within 7 days or they'll pass it on to debt collectors with all the additional legal cost involved therein.

 

Warm regards

 

Si

"Modern 'currency' is known as 'fiat money': it is artificially created, has no value in itself and the basis for use in exchange is typically a government edict." Paul Morran, Information Rights Unit of Her Majesty's Treasury.

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So let them pass it on to a DCA...nothing they can do except harass you..if you let them...until NW issue a court claim for the balance..there is very little you can do.

 

Have you considered mounting your claim for all the unfair charges and interest...I bet there is plenty to recoup given the above circumstances ?

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