my Leasehold/Freehold property and it's issues.

[HP Mum]

Can anyone advise on such a TO:

 

 

"all further proceedings between the parties be stayed on terms set out in this schedule (confidential between parties and shall not be kept on court files) - with liberty to apply as to the enforcement of those terms without the need to start a new action...."

 

 

if defendant agrees not to disclose to any 3rd party the terms of the settlement - does this mean that if they sell the debt they wont disclose the TO to the 3rd party dca?

And if they do sell a debt on am I bound by confidentiality on discussing the settlement terms and cant reinstate my claim?

 

 

I have a current claim and am considering if to settle. But don't want to settle on any terms other than those suited to me....

[Guest]

if it sells, the tom order shld go with it as is and remain effective between the parties.

they might also have to tell the court that they are no longer the claimant.

[shamrocker]

Surely it's a Tomlin 'Order' - which is sealed by the court. Is the Claimant referring to the settlement terms as a TO or is it you who's calling it a TO?

 

Peronally, I'd prefer any settlement that appears to be 'like' a TO sealed by the Court.

 

Let's see what others have to say too.

[BazzaS]

 

The existence of a Tomlin Order (a type of Consent Order, often with a confidential Schedule) isn't in itself confidential. The Terms agreed under the TO (in a confidential Schedule, not filed with the court) are the potentially confidential part.

 

They could sell the debt (unless it is part of the agreed terms that they don't!, which you should consider...).

 

They can (and should!) inform anyone they sell it to that there is a Tomlin Order. They might say that there are confidential terms. They can't reveal those confidential terms without breaching the order, if they were agreed to be confidential.

 

I'd suggest making it explicitly part of the conditions that they can't sell the debt, or if they try to that they must reveal to any potential purchaser that there is a Tomlin Order with confidential terms, but can't reveal those terms ...... that should put off any potential purchaser!.

[HP Mum]

I am the claimant.

defendant trying to settle and a TO is part of the proposal. New to me - so just trying to ensure if I agree that I don't agree to anything that isn't in my best interests.

Thanks

 

So - if I retain the control that I have being a claimant, then I can add a clause into any settlement schedule that they cant sell the remaining debt??

[shamrocker]

But you just said you're the claimant, so it'll be you who would be selling any debt, not them.

 

Sorry, I didn't realise you were the claimant in your original post.

[Guest]

nor did i

[BazzaS]

Nor me too (well, three!)

[HP Mum]

I am the claimant - but only on a % of a larger debt. So even if the defendant agrees to 'reimburse' part of my claim a % of my debt remains. I am just looking to the future and wondering if the defendant could try to sell the rest of the debt....

[shamrocker]

Think about this for a minute.... how can someone possibly sell their own debt?

[BazzaS]

You've misunderstood.

 

HPMum owes X amount to "the company".

She had claimed for Y amount from the company, and they've agreed Z amount for the Tomlin order.

Both Y and Z are less than X.

 

Afterwards, she'll still owe them X-Z, a debt they are entitled to sell on.

[HP Mum]

Yes. I get that. Thanks.

I'm getting a bit confused as I have an issue with something else with the same defendant...

 

Yes Bazzas you are correct. That's how I was looking at it.

Plus - there is an extra element - the defendant added to my overall debt by buying another debt and packaging it under one hat.

They have never litigated on the bought-in debt. But they could sell it on and maybe sell the lot on - including the other remaining bit, part which may be settled with a TO.

 

Its not a major panic now. I just want to make sure that the TO as it is worded is OK? And if there is anything that I can add to ensure my interests remain secure

 

what does this bit mean?

with liberty to apply as to the enforcement of those terms without the need to start a new action

[shamrocker]

Ok, I get it now.....but surely there had to be an easier way to explain the situation.

[HP Mum]

Sorry.....

Fever/virus/lack of sleep... not articulate today

[BazzaS]

 

The original action gets 'stayed', by the TO.

the TO creates a NEW contract between the parties, on the terms of the Order.

 

So, if the terms are breached there are 2 potential ways it could be litigated:

1) re-starting the existing stayed action, or

2) a NEW action (not on the same PofC as the original claim, but instead for breach of contract, the TO being the new contract ....).

 

A court might choose to not allow the original action to be re-started, insisting on a new claim instead for any breach, but this is less likely if the "with liberty to apply" phrase is included in the TO terms.

[HP Mum]

A general legal question here:

 

I needed to refinance a property.

 

I had a valid recent surveyors valuation but the bank with whom discussing loan wanted a new valuation via a surveyor on their list.

 

I needed the loan so I was obliged to pay for a new report - at great expense - and upfront.

 

The surveyor attended the site. The bank advised the report would be done within 5 working days.

 

However,

the bank then decided that there was a different element to the report.

They advised that the full report and their loan was dependant on this different additional element and I thus needed to pay more.

I argued. But the bank had put me in a corner, so I paid the extra amount.

 

I had a deadline for completion on the loan.

The bank knew this.

So it was essential that the report was presented within the 5 working days the bank had advised.

 

The surveyor produced a Draft report within 12 days (7 working days).

But this Draft report did not contain the additional element that I had paid extra for.

 

Furthermore, the Draft was wrong

- the surveyor had measured the property incorrectly;

it was hundreds of square feet smaller.

 

 

Aside from the fact that all the property comparables were then not true size comparables, the lower measurement then meant that the loan to value was not high enough for the bank. And so the bank disappeared.

 

A month has now passed.

I have never received the full report,

never received the additional element part.

The bank told me I would have the full report within 5 working days.

 

I want to argue and I want to get my money back.

It is a lot of money and it really galls me to have paid for a 'professional' service and to never fully receive the report and for the draft to include wrong measurements too.

 

I know for a fact that the measurements are wrong as I previously had measurements/reports done with regards to the lease enfranchisement

- all the professional calculations were done based on higher sq ft measurements. Every other report has higher measurements.

 

Do I have strong legal argument to ask for my money back?

 

Fwiw - I did find a different bank

- successfully using the original valuation report with higher square feet measurements

- but at such short notice the rate was higher....

[dx100uk]

how did you pay for the ailed/useless survey

that they obviously spoofed you into doing

so that they could line the pockets of their 'preferred' surveyor

 

 

dx

[HP Mum]

I paid by bank transfer.

It would have been a regulated loan.

The surveyor is a well known company

[HP Mum]

fwiw I was in a corner. I was being told that I could not get the loan I needed unless I had a different survey/valuation done. I was very frustrated - but this bank seemed to be the only bank I could rely on. (famous last words).

I met them / they saw the property / they were keen to do the deal and could act fast...

That said - and being a cynic - they also knew if I did not get another loan I may lose the property. So, there was another angle for them to delay the report. They knew they may be able to buy the property off the receiver....

I had given them every possible information regarding the property, including development potential which would (will) make more money and valuable research that I had done myself regarding planning precedents. So they could have been analysing the benefit of not giving me the loan.

In hindsight and with the immediate panic of foreclosure gone, I am not really angry with what has gone on with this bank / broker....

Not sure how I tackle them...

[steampowered]

In principle, if you paid for a report which an 'additional element' but it did not contain that additional element, I'd think you should get a refund. Similarly if you paid for a report with completely wrong measurements I'd think you'd have a reasonable case for a refund.

 

I am not sure whether you should be complaining to the bank or the surveyor. I suppose it depends who your contract was with. Did you get any T&Cs?

[HP Mum]

morning.

The bank had a list of preferred surveyors. They chose and appointed the surveyor. My original surveyor (with a valid report) was not on their list. The surveyor was a high street, well-known, estate agent with a Rics section for such valuations.

The bank quoted receipt of full report within 5 working days to me. Then they changed the terms - they demanded a 2nd part to the report - and said that the 2 parts were a requirement of the valuation. They stated that the loan would only be given if this 2nd part was done. The bank did say they would refund the 2nd part - but only if the loan completed. Of course it didn't.

The broker only sent me a 'draft' which did not include the 2nd part. I complained to the broker and he said he would pass on my comments to the bank - of course I have heard nothing from the bank. I have yet to complain in writing to the surveyor. The bank appointed the surveyor yet I paid the surveyor directly into their bank.

To be clear - the measurements were about 500sqfeet short. This impacted hugely on the overall value and the comparables used in the report. It rendered the draft report useless. And the bank closed their shutters, never to be heard of again.

I am furious.

(as said before, I used my original report and found another bank to loan using that - so the whole exercise with this bank/surveyor was a complete waste of my time and money)

 

 

I have been busy working but wish to use the calm Christmas period to draft a complaint / request for refund.

I do not want to incur costs of lawyers. But could incur cost of small claims so am prepared to quote that in any complaint letter...

Any helpful words on how to deal with this would be most appreciated.

Happy Christmas

[HP Mum]

Help!

 

I have a loan/charge problem.

 

I was very silly a while ago.

I borrowed some money and allowed the lender to take a charge on a property.

I thought I would have the means to repay quickly.

But other things happened and I couldn't repay as quick as expected.

There was an agreed % on the loan - and the longer it took to repay the more I'd pay.

 

I have since offered to repay - in full - the original loan plus a profit return, but at a lower % than on the agreement - as that is all I have.

 

But the lender has refused to accept my offer.

They want a higher % profit return

- or they will act on their charge and repossess the property.

 

The property is valued much higher..

They also keep adding more high % interest on the original loan.

Worse, the lender called/has alternatively suggested that I let them sell the property;

that they know someone who will buy it!

 

 

Clearly this is less about repaying the loan and more about extreme profiteering and wanting the property.

No morals.

 

I have been trying to consider next best steps.

 

I know I need to put the verbals in writing.

Reiterating in writing what the lender suggested would not look good in court...

 

Next I am just wondering what would happen if I insisted on repaying the original loan;

just making that bank transfer, with a lawyers letter confirming the repayment?

 

Obviously it reduces the interest payable

but I am thinking that more importantly it makes the dispute about a smaller sum of money

- the amount of their profit.

Would this help me?

 

Can I force a lender to accept repayment of only the original loan sum?

And then we just argue about their profit.

Or does the legal charge make any challenge difficult?

 

Might a judge say I owe the full % the lender wants, less their deliberate delaying tactic period,

but - in my favour - allow the sum to be payable over a longer period of time and not subject to a repossession order....

 

Just wondering all this aloud...

 

Am I wrong?

I feel I should continue with the plan to repay the original loan,

because I can, and then let the dispute on their profit go to court?

 

Does anyone have any idea on how a judge may look upon this situation?

ie a lender refusing full repayment and a profit;

instead to deliberately waste time to gain more profit and an asset.

Stressful.

[dx100uk]

firstly stop talking around corners.

 

name the lender

tell us what type of loan it was

and for what value and interest rate.

 

the more exact info you give

the better advise we can give.

 

dx

[HP Mum]

Thanks dx

Like the straight talk!

it's not a bank, its small financial outfit, kind if loan shark. It was a regulated loan though.

Offhand I can't remember their exact terms - but I have offered full return of their original loan after 1y + 6% profit. They want apx 20% profit.

I'm not so comfy giving exact details on lender/loan right now. I hope that the info I do give will be enough for some assistance...

[fkofilee]

They have to go to court to force a repossess... If they do then they have to explain why a repossession is the only option. Youve already offered to pay them in full which would kill this dead IMHO.

Whats the charge amount and restriction type?

 

Is it regulated by the CCA 1974? If so there are rules in the CONC Sourcebook that enforce that a lender is NOT allowed to suggest borrowing or selling assets in order to repay debts (Whether in arrears or not)