Britannia Mortgage Court 18 March Possession CCA or MCOB or BCOB

[feistycow]

Moderator - Please help, we're desperate.

We have Possession case date for a week's time. 

Seems not entitled to Legal Aid & no money to pay solicitor.

Working on getting someone from shelter or elsewhere to help / speak for us.

I'd like to clarify some points, as I've tried to read up on the laws but so much has changed I've information overload.

Clmt has, over the last few years:  repeatedly denied receipt of  &/or not answered letters, &/or nor provided clarifications requested,

not provided details relating to DWP mortgage support pymts - when received / what period meant to cover / how applied to our account / whether specifically they have applied interest against those DWP payments for being "late" (DWP generally pay lender fortnightly not calendar monthly)

- apparently lenders Not supposed to disadvantage people in that i.e as a result of lender using that scheme; 

autumn 2017 they wrote to say the extended (post-May 2017) agreement had lapsed when it hadn't (twice did this), causing extra unnecessary stress to both of us despite knowing we were both ill with longterm depression & anxiety problems

- recklessly exaserbating our health problems

- directly adversly affecting our ability to deal with the situation and to get the house on the market (intended for spring 2018); 

horrendous phone call with person who didn't know what she was talking about, thereafter dealt only in writing with them; misleading info etc etc.
Submitted Subject Access Request under DPA 2018 & GDPR as they were still with-holding information - they are are now in breach of that.

When mortgage taken out in June 1992 for £58,500, the firm was a Building Society but since then became part of Co-op Bank August 2009. 

Am I right to rely upon MCOB - as it's a mortgage, or BCOB as Co-op is a bank, or whether I should concentrate on CCA 1974. 

Most of that mortgage was Interest Only, with smaller a/m covered with endowment (later cashed in).

Refused our requests for payment holiday / capitalisation of arrears.

From June 2006 we had to claim DWP support for mortgage interest which DWP paid direct to the lender.  

I've tried to list every point that may be relevant, and I believe I've read things correctly in that:

1.  At June 1992 Britannia was a mutual Building Society & so not authorised or regulated by FSA/FCA.  It seems Britannia BS was Regulated but by Prudential (PRA). So whatever laws in relation to financial business pre-FSMA applied.
2. The mortgage (First Charge) was Unregulated - no reference to CCA on the mortgage paperwork.
3. The mortgage term was due to end 17 May 2017, but until recently there were "unofficial" extensions - according to them & quoted in their letters, but not considered so by me & quoted in a letter from me.
4. FCA website says, Britannia BS listed as Authorised & and Regulated by FCA  from 1 Dec 2001 to 4 Aug 2009. It also states that prior to that, they "were regulated by PRA/FSA".   From Aug 2009 "Britannia"  comes under Co-op Bank as a trading name. Co-op Bank showing as auth & regl by FCA. (plus one of Britannia letters or leaflets from about 2012, quotes that they subscribe to Lending Code & FOS & licenced by Offc of Fair Trading).
    
5. FSMA 2000 - which order?- referred to Regulated Mortgage Contracts (so FSMA 2000); Regulated Mortgage Agreements (so CCA 1974, part 9?); and Mortgages not subject to statutory regulation (so Access to Justice AJA court powers in AJA 1970 S36);
6. FSMA 2000 - which order? -on regulatory treatment of First charge mortgages entered into prior to 31 Oct 2004 and Regulated under CCA 1974 & CONC.  References to "Legacy Mortgages" but Regulated ones only? 
7. Also FSMA 2000 - which order? -  that mortgages entered into prior to Oct 2004 to be Regulated under CCA/CONC provided the a/m did not exceed the financial threshold in place at the time the mortgage was taken out - which ours would have done. So mortgage still treated as Unregulated?
8. But later changed - which order? - to remove the restriction about the financial threshold.  As, at the time taken out, the mortgage was from lender to individual + money given to be paid back (credit) + was for our dwelling,  that brings our mortgage into scope as a Regulated Mort Cont (from its start).
    
9. Then  from 1 April 2014 powers under CCA 1974 Part 9 (incl Time Orders . & open up the credit agreement) applied to Regulated Mortgage Contracts, Financial Services Act with new rules on Mortgages taking effect from April 2014. So that would make ours Regulated & subject to CCA 1974 Pt 9 & CONC.

10. Then from 21 March 2016 ref unregulated Pre-Oct 2004 mortgages becoming Regulated - scope changed to cover any mortgage regardless of when made, but only comes into affect when affected loans become regulated mortgage contracts on 17 March 2017 - unless the firm in question takes steps to apply the relevant rules before that date.  

11. References to case of Barnes vs          , that discretion under CCA S136 in order to mitigate the impact of interest charged on the unpaid installments under the mortgage, to reduce the monthly rate of interest by almost half during the suspension - for "short term difficulties".  Read somewhere that period could mean up to 5 years?

12.  If mortgage was not, but is now to be considered as a Regulated Credit Agreement, can the test for Unfair Relationships 2006 be used? and retrospectively to the start of the mortgage - & therefore be able to claim back all payments we made?.
     
13. Thinking about Disability Discrimination Act - both long term ill, affecting normal day-to-day activities.
     
14. Also about individual's Rights of Action when breach of a Conc or BCOB rule when treated unfairly - FSMA 2000 ref 138D of act.

Hells bells, I know it's down to the wire if not too late unless we can ask for more time, or query something on their POC / asking for more info.    

Thank you for any clarification you can offer.

  

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[honeybee13]

HI.

I'll move your thread to the Repossessions forum for more specialist advice and will flag your thread for the site team.

HB

[dx100uk]

lots of drivel nothing that tells us..

Why are they going for repo?

what payments should you make [CMI]

and what are your arrears

[BankFodder]

Yes, I think that the story is rather garbled and we don't really understand the situation at all.

I'm afraid that you will have to laid out rather more carefully in a bullet pointed chronology. Explain the loans that you have had and why they have run into problems and the way that you have been treated unfairly.

If these are mortgage issues that you have been treated unfairly then MCOBS is what you need – but you really haven't made it clear what is the basis of the unfair treatment.

Also, I see that you have referred to a breach of the data protection act. You need to tell us more about this SAR, when was it made and has there been any response to it at all. Maybe you could post up what you sent by way of an SAR.

I have a sense that if this hearing is coming up next week then you are going to have to get an adjournment. If you want to bring an action for breach of the Data Protection Act then you will certainly need a bit more time. I don't think you can introduce this action at the last moment. Similarly for a breach of MCOBS.

I don't want to add to your woes but you've been here since 2007 and you have only come here now with a week to spare. In not giving anybody much of a chance – especially not yourselves.

[Ell-enn]

Hi,  can you please set out some details fairly briefly:

 

How many months payments have you missed ?

How long is left on the mortgage ?

What was the reason for missing payments ?

Have you completed any of the court forms yet?

Have you made any offer to make payments towards the arrears each month either in writing or on the phone ?

[feistycow]

OK thank you all.  I'll will try again.

[feistycow]

Can I ask , please,

 

1.  for opinions on whether this mortgage contract is likely to be adjudged as Regulated or Unregulated. It was an unregulated mortgage agreement at the start. Britannia BS was a member of the Building Societies Assn, the Council of Mortgage Lenders at that point.

 

I believe that the mortgage became a Regulated mortgage due to the agreement extensions, but not entirely clear.

No new contract terms were issued, but should CCA 1974 rules apply?

 

2. Yes, we will need to ask for  more time to get legal advice and to provide a better defence ( we responded to the Claim in a basic way saying that Clmt treated us unfairly, with-held information, failed to respond to issues raised (in writing), failed to comply with Pre-ac-Pro . 

Additionally,
we each sent a SAR to Co-op asking for all data from the pre-contract stage

- whether computerised or clerical incl third party for example DWP;

 

also requested spreadsheets,  breakdown of interest incl number of days & period for which interest charged, also referred them back to previous letters asking for details on the DWP payments they received

- what period each payment covered, and what date each was applied to the account,

and if any interest was charged in relation to a DWP payment,

how many days & how much was charged; 

also requested activity logs; and sound files for the previous 3 years; 

stated they need not provide copies of letters of a purely sales nature. 

 

Despite making it very clear the SAQ related to a Britannia mortgage account, co-op wrote back to say they couldn't find anything on record & could we provide bank account account details.

 

After complaining by email, we eventually received some data but no where near what they actually held, and no explanatory notes provided with what they did send to enable us to desipher it.

Further email complaint sent, but no further data or response provided. 

Their prescribed period ended 8th Feb.

 

Do I prepare a request to have an Order from the judge to require compliance with the SAR

- otherwise how can they legitimately sue for default / possession based on incorrect / possibly mis-sold MIG/ incorrectly applied DWP SMI payments & interest.

 

We strongly suspect that they have not applied the DWP payments correctly, and therefore have overcharged us on the interest.

 

There is a massive gap between the principle £58,500 originally borrowed and the £65, 000 they now claim is the principle. 

That's why we need the oustanding data.

It's Also needed in order to complain via FOS.

Is there anything we can use in our defence about obstructing access to justice?

 

3. In the lead up to the extended agreement & in Autum 2017, Britannia refused payment holiday, or to capitalise the interest, even though we told them we needed to accrue some funds to pay for accomodation, storage, removals etc once house sold.

 

4. They also ignored the fact that we both have anxiety & depression and pestered us with letters saying the extended agreement had failed when it hadn't, and sent a number of letters saying there were shortfalls (of strange & differing amounts)  when we'd paid exactly what they had asked.

 

Any advice appreciated, thank you.

 

June 1992 for £58,500, re-mortgage taken out with Britannia Building Society by myself & husband.

This mortgage replaced a mortgage we held with a different firm.

The new mortgage took over as the First charge mortgage.

Interest only with an endowment policy.
25 years ending May 2017.

 

The mortgage was set up to run on a dual account basis because Britannia required a one-off payment as security for the lower a/m - the mortgage was more than they would normally lend, apparently, and this was arranged by them with an insurance firm, Sun Alliance, from their approved board of insurers ( & was part of the same parent company I now know)).

One monthly mortgage payment (CMI) required. MIRAS tax relief applied.

£58,500 total mortgage split into 2 a/cs - £43,000 and £15,500

 

The one-off insurance payment (I believe is referred to as MIG), of £465 (approx) was taken out of the balance between what we borrowed from Britannia BS, and what was paid out to discharge the original mortgage.

 

Buildings Insurance policy was required as part of the deal and had to be taken out through them.

 

Endowment policy set up at the same time as the mortgage, with Britannia Life who became Alba Life & then Phoenix Life.

This was cashed in around 2003.

Later complained to FOS about mis-selling & obtained payment from Phoenix for that.

 

1 Dec 2001 Became regulated & authorised by FSA

August 2009 Britannia BS became part of Co-op Bank – T/A Britannia.

May 2017 Mortgage term end date, but "unofficial" agreements have been in place up to end 2018.
Britannia has always referred to these as unofficial agreements & reiterated that the mortgage ended May 2017.

[feistycow]

Hi

Yes this went badly.  Lender got possession order & we are supposed to leave by 6/5.

BUT

1.  However, we unexpectedly found our original contract paperwork and proves the lender did not provide us & court with the complete/correct agreement Ts&Cs.  I'm unsure how much of this new documentation to provide with an N244 to persuade the judge to allow a new hearing & a replacement defence.  Will the request be copied to the lender before the judge makes a decision? in which case perhaps some documents should be with-held?:

 

The lender provided front page only of the Offer of Advance, signed by lender, dated 8 Apr 1992 , together with a scan/copy
of mortgage Ts&Cs leaflet mentioned on the front of the Deed document. We signed that page, dated 15 May 1992 (by lawyer),  & the 5th of 6 points listed was to say we had received this leaflet - but we did not receive it, nor did we receive a copy of the Deed.  

What we have now found amongst other things is:

* the Mortgage Application Form which incl page of "notes & terms", and declaration signed by us, dated 18 Mar 1992;

* the 3 page agreement of the Offer of Advance (Conditions, Special conditions, & Rider) dated 8 Apr;

* letter from them to say that all the monthly figures quoted on Offer of Advance were incorrect & to provide the new figures, this signed by a branch manager, dated 15 Apr.

 

2. SARs were sent & have not been complied with: sent 4 Feb 2019 by 1st class signed-for mail, receipt there Tues 5 Feb, data due by 7 Mar.  Small a/m of data received, nothing to what they have, virtually nothing we asked for. Emails back & forth during this time - nothing but excuses.     Complaints sent to ICO.

 

Any thoughts or useful comments much appreciated.

[BazzaS]

Sadly you haven’t replied to / followed the advice in BF’s post #4 and Ell-enn’s post #5.

This, and the fact that the lender already has a Posession Order now is going to make it difficult to help you.

 

If it hadn’t already reached that stage, one of the key questions would be : if you cashed in the endowment policy in 2003, (and got compensation for mIs-selling), what other measures did you take to repay the £58,500 due in May 2017?

[feistycow]

Ok BazzaS,  thanks anyway.

It was too much to research and understand in the time-frame

- agreements; regulated or unregulated mortgages;

whether or not an extention to the mort term was unofficial or not;

possession rules; other CPR rules; SYST / MCOB etc;

 

finding out legal aid rules had changed & having checked with CLA told we do not qualify (& not informed of Exceptional case funding - found this out only a few days ago);

no money, as long term sick, to pay for our own solicitor; 

long-term sufferer of anxiety & clinical depression;

lender with-holding detail about how interest applied to the account etc;

so possession order based on fictitious sums. 

 

Just couldn't cope, and crashed-out as the hearing approached,

hence "lots of drivel" splurged out above, and now trying to dig us out of this hole. 

thanks

[BazzaS]

Yet again you post a “stream of consciousness”, but haven’t replied about BF’s and Ell-enn’s posts #4 and #5.

 

you also haven’t replied about the key question of what action you took between 2003 (after cashing in the endowment and getting compensated for its mis-selling) and 2017. You must have known the capital sum was due on expiry of the interest-only mortgage?

 

if you keep ignoring the replies given & questions asked : how do you expect people to help you?

 

 

Edited April 5, 2019 by BazzaS

[feistycow]

On 08/03/2019 at 15:29, honeybee13 said:

HI.

I'll move your thread to the Repossessions forum for more specialist advice and will flag your thread for the site team.

HB

 

Thanks for doing this.  I'm sorry if I didn't get back to you before but my health problems overtook me. Also In March I couldn't see how to respond directly to individual posts.

[feistycow]

Hi there.  I'm sorry I didn't respond to your post. I was too unwell at the time, it all got on top of me.

 

Everything has moved on, but for completeness:  

The mortgage term end date was May 2017, with unoffficial extentions to Dec 2018;

3 months interest missed;

 

after DWP mortgage support interest scheme ended we found we couldn't qualify for the new loan scheme as the mortgage term had ended May 2017.

 

We paid for as long as we could; 

At this stage the lender has an order for possession, and next week can apply for the eviction warrant. Yes, we wrote to the lender but have not yet received a reply. 

 

I'm currently trying to complete a court form to get a stay & to have a new hearing

- have found original mortgage docs, previously thought lost/destroyed.

 

Docs submitted by Claimant as the contract were incomplete (so misleading).  

Claimant continues to with-hold the data we requested.   

 

Second reason for application is that we could not get any legal help ,  we completed the initial defence form as best we could at the time, but completely crashed mentally the week before the hearing so incapable of providing a complete defence.     Thanks for your time.

 

I'm sorry I haven't responded before My health problems got the better of me

- as my posts show I was heading for a complete crash.

I think tht finding out we couldn't get legal aid was the last straw.

 

Things have moved on. Lender has the possession order and can apply for the warrant to evict next week.

 

For completeness: after 2003 recurring illness resulted in the end of employment.

The hoped for health improvement never came  and family crisis followed family crisis. 

 

In readiness for selling up we sought to establish the state of the mortgage / account but repeated requests for clarification & info were not satisfied

- that's continued since 2015, adding to pressures.

 

The mortgage was unofficially extended beyond June 2017, on the basis that we'd continue to pay the interest and that the lender would leave us alone to alleviate the pressure, but they didn't.  

 

I've provided a bit more info in response to those earlier posts, if you're interested. 

And I'm currently trying to work out what lender should/ should not have done in light of the unregulated agreement becoming regulated March 2016.   Thanks for your help.

 

THe last straw was finding out we wouldn't qualify for legal aid due to a change in rules, even though we have no money to pay for a solicitor.  Complete crash resulted in an incomplete defence.  

 

I'm working my way through the other posts, although things have moved on.  Lender has the possession order and can apply for the warrant to evict next week.

 

I'm currently trying to complete a court form to get a stay & to have a new hearing - have found original mortgage docs, previously thought lost/destroyed. The docs submitted by Claimant as being the contract were incomplete & misleading. 

 

Claimant continues to with-hold the data we requested, but also has not responded to a request for details of the destruction of the data (if indeed it has been destroyed).    

 

Second reason for application is that we could not get any legal help , 

we completed the initial defence form as best we could at the time, but completely crashed mentally the week before the hearing so incapable of providing a complete defence. 

 

I'll ask if the DPA action can be incorporated with the possession case, along with the info about health issues affecting day-to-day ability to deal with finances & stresses, and actions by the lender, as they are all have a bearing on the possession case.   Worth a try in the interests of justice & access to justice. 

Thanks for your time.

[BazzaS]

What outcome are you looking for?

 

If you get a stay / rehearing : mortgage lender is likely to argue that you are merely delaying the inevitable : that you have had since 2003 to plan to repay the capital sum in May 2017 (later extended to Dec 2018), and have no realistic prospect of doing so now.

 

So, unless your financial situation has changed massively : what realistic proposal will you put forward?

 

What is to stop them arguing that any discussion of regulated vs. unregulated is a ‘red herring’ : even once disposed of, you won’t be in a position to settle the outstanding mortgage.

 

The fact that you have had health issues is likely to get you latitude from the court around filing dates and procedural issues. It won’t change the fact that the capital sum needs to be repaid, and even if they say “we have considered the issue you have raised and taken a few thousand off the sum owed” : how will you show you can repay the reduced sum?