my Leasehold/Freehold property and its issues.

[aesmith]

In that case I don't think you'd have any grounds for a claim against the receiver, short of anything actually criminal. The receiver was appointed by the lender so any claim you make should be aginst them.

How much equity do you reckon there was when they took possession? Realistic value less outstanding balance (including arrears). 

This messing around makes me wonder even more if the property was wildly over valued. Normally a lender would sell and not really care if they got the best price so long as they covered the balance plus their costs. 

[HP Mum]

thanks ae - yes  I understand the claims are between me and the lender.  But with regards to the order for sale the judge specifically said it is the receiver who is appointed to sell - and he hasn't/ and isn't - which is why I am asking if I can apply to the court v the receiver for an order for sale right now?   

The receiver is not part of the current proceedings heading to trial.  But he is responsible for selling the property - and he has consistently rejected offers over >5y.   This is specifically why I would like to understand if I can apply to the court to enforce the sale by the receiver???

As above - The judge has said otherwise the order for sale v the lender has to be dealt with via the trial.  Which they have deliberately delayed via the adjournment.

Valuation is an issue.

The lender chose the valuer.  I paid but his report belongs to and is referred to by the lender.  He did a prof valuation without doing a site visit.  He had done a site visit 5 months earlier for different potential lender.  The 1st valuation he erroneously wrote in his report as fh.  He just did a re-write 5m later - but wrote in his report that the value was the same for lh.

I had a great offer on the table from a niche buyer which would have cleared the loan and given me a lot of £s.  But the lender rushed through the repo and the buyer got spooked and ran.  The lender then slashed the price by 30%+ from their valuation (fire sale price?). 

As you suggest - they fully expected potential buyers to quickly grab the property at such a discount.  But it turned out they couldn't.  The market had dropped anyway. Then covid hit.  Every potential buyer was questioning the valuation (which clearly was wrong but the lender had accepted). 

The lender and receivers actions have eroded the equity.  This wouldn't make sense to any normal lender.  99.9% would have just sold to the 1st buyer willing to transact.  The lender/ receiver had such a willing buyer on day 1 of marketing.  But they spent 15months trying not to sell to them. 

As I said, disclosure shows the ceo wanted (wants?) to keep it for himself - so common sense didn't (doesn't) prevail.   The lender has made a £ Claim v me.  I am disputing it because I maintain it is their actions that has caused the erosion of equity/ a debt to accrue.

The lender's problem now is that they have spent so much money and added so much interest over 5y that they cannot sell the property for what they need/ want.  They are trying to blame me for this.  But it is their fault; not mine - because I am not in possession or in charge of selling it.

As I also said above - if there is some legal reason why I cannot make an application to the court for an order for the receiver to sell - then can I ask the other entity which has a charging order and threatened to do so ???  I will contact this other entity only if I can't make an app to sell v the receiver

 

 

[aesmith]

Other entity? Does another creditor have security on the property?

Edited April 18 by aesmith

[HP Mum]

see post #425 above:

I borrowed £s from a completely separate entity 6y ago. It was personal and unsecured. I was going to repay upon sale of the property. But then repo and I couldn't.  Eventually they applied and got a charging order on the property.  Their lawyers wrote that if I didn't repay they may apply for an order for sale ...   could I alternatively ask this separate entity with a c.o to carry out their threat and actually make an application to court for an order for sale v the receiver instead?

It would certainly side swipe the lender and receiver if this other entity did this

Edited April 18 by HP Mum

[aesmith]

A second charge holder isn't going to do that at this stage. "Lender" would get first dibs on the proceeds of sale probably leaving nothing for "Entity".

[HP Mum]

Maybe. But 2nd charge holder doesn't know the situation 

Can a 2nd charge holder apply to the court asking for an order for sale when the property is under a receiver? 

Edited April 18 by HP Mum

[aesmith]

It may be vaguely possible Entity could apply citing the fact that Lender is not exercising their own right. But they won't. As a second charge holder they will be aware they only get the crumbs at the very best, and that a property that's been in arrears for so long probably won't even cover Lender's costs and balance leaving nothing for them.

They may also take the view that others have been unable to sell over several years, so why would they have any more success.

[HP Mum]

This other entity doesn't know what's going on.  To be clear I had huge equity.  No-one would ever expect a lender to erode all my equity. 

The question is - if anyone knows the legal answer - on the basis they have a charging order - could they make an application for an order for sale?  

I spoke to a pro-bono entity this afternoon.  They advise I must initiate a claim in the court v the receiver if I want to then file an application for an order for sale.  I must have a claim/ proceedings to be able to force a sale.

The judge in the current proceedings  has told me that I cannot force the lender to sell and the lender cannot interfere either.   If the receiver isn't acting correctly and isn't selling - this means I must make a claim against the receiver

I could initiate a claim. Or much quicker  - the other entity - with a charge already - could use that to make an application for an order for sale.

Just out of curiosity aesmith - are you a lawyer?

[aesmith]

No I'm not. Even if I was then comments on this forum wouldn't constitute legal advice in the formal sense.

Now you've engaged a lawyer directly can I just make couple of final suggestions? Firstly make sure he is fully aware of the facts. And don't mix and match by taking his advice on one aspect while ploughing your own furrow on others. 

Let us know how you get on now you have a solicitor acting for you.

[HP Mum]

Aesmith

- Thank you for your recent interest in my issues. 

Input on people's topics can be most useful from specialised experts or those that have similar experiences. 

Some people really struggle with knowing what to do (I certainly do) - so it is most useful and helpful and reassuring when solid sensible advice is offered. 

I have found there to be some very kind, helpful, supportive and legally knowledgeable people here on cag over the years - who give sound legal advice for people to roll up their sleeves and follow up on.

   Of course, sometimes it can be quite challenging sifting the wheat from the chaff. 

I don't have lawyer or barrister. 

I sometimes attend pro-bono legal clinics for help. 

And sometimes have access to barristers via a pro-bono service called Advocate.

  Both ad-hoc

. Pro-bono means 'free'

[HP Mum]

To which official body does one make a formal complaint about a LPA fixed charge receiver?

Does one make a complaint first to the company employing the appointed individuals?    Or can one complain immediately to an official body, such as nara?   

I've tried researching but there doesn't seem a very clear route on how to legally hold them to account for wrongful behaviour.  It seems frustratingly complicated because they are considered to be officers of the court and held in high esteem - and the borrower is deemed liable for their actions.  Yet what does the borrower do when disclosure shows clear evidence of wrong-doing?

Does anyone have any pointers please?

[aesmith]

If you're set on pursuing the receiver then a complaint to his governing body (if any) might be a sensible low risk first step. You need to confirm what qualifications he actually has. I don't believe an LPA Receiver necessarily needs to be a licensed insolvency practioner, although he may be. Or he may a chartered surveyor.

I note you say "LPA" and "fixed charge" receiver, but aren't those two different appointments with different remits? What relevant powers are given in the mortgage terms and security? Or if that's unclear then how was the appointment described to you?

Ducking back to the comment I made earlier, you consulted a solicitor who advised a claim against the receiver. How did he advise that you do so?

Quote

And don't mix and match by taking his advice on one aspect while ploughing your own furrow on others. 

 

Some background reading (accepting it's from 2013 and you may be working off more recent preceded overturning this) ..

LPA receivers owe very limited duty to borrowers; a reminder

WWW.WRIGHTHASSALL.CO.UK

---

As lenders rely more and more on their powers to appoint an LPA Receiver, a recent case has clarified the Receiver’s obligations, both to the lender and its borrower.

 

Edited Friday at 06:54 by aesmith

[HP Mum]

Just to clarify - I make use of evening legal clinics. It is not always possible to see a lawyer (they have limited time and days/week).  This means questions one has may never get answered or there's weeks between follow-ups.   To be really clear - I am representing myself; I am playing at being lawyer/ barrister - which means I take help wherever I can get it (and then research it thoroughly).

Ae - a judge in a recent hearing pointed out the receiver is not part of my current proceedings - and suggested I have a separate claim v the receiver.

Disclosure has presented damning evidence v the receiver 

The receiver against whom I have a complaint is not part of the receiver governing body.   The receivership is in 2 names - a joint one.  My complaint is directed at whom I was told is the lead receiver.  The other named receiver IS a member of the governing body.  But he has now left the company.  And the lead receiver has retired - but is still a working consultant on my case.   All the evidence shows it was the 'lead' receiver who was doing all the  work/ the misbehaviour.   But if the appointment was 'joint' would I make a complaint against them both?    I am sure that wouldn't go down well with the other receiver who is at the beginning of his career.

The law is very much against borrowers.   But the evidence against this receivership is crystal clear.   I just don't know how and to whom to complain.   The places I've tried so far don't offer much transparency 

 

 

 

[aesmith]

Did you ever think of walking away? Become bankrupt and in 12 months it'll all be behind you. My feeling is that you may well get nothing from the sale of the property anyway. Going by the date this thread started it looks like eight years of arrears, lender's costs and receiver’s fees on top.

[HP Mum]

No

[BazzaS]

I suggested consideration of bankruptcy some years ago.

It was not well received.

[HP Mum]

Thanks for jumping in Bazza. 

I understand that some people would suggest this.  But no.

The moot point is that there should not be any debt.  There shouldn't be any reason for me to be made B.  The lender / receiver are responsible for the property not selling in a timely manner.  Whoever heard of a (well-located nice) property not selling in >5y?    They have no reasons.  

Disclosure has subsequently offered staggering evidence which corroborates lender bad behaviour, bribery, and collusion/ interference with the receiver.  I am holding them to account for this.  It is clear they don't want this evidence in the public domain - it will shred their reputation.   (One also has to understand that the ceo - with collusion and conflict of interest (using same lawyers as lender) and receiver - tried to get the property cheap for his own use)

They now want to agree a settlement. 

I have separately reported a lawyer for negligence to the LO and SRA. I want to report the receiver as soon as I understand how to.

I also would like to find some legal means of getting the property sold.

Also: due to my fight

a) in court I got the debt capped to a point years ago

b) evidence has since shown the receiver told lender to 'stop' interest - which appears to defeat any claim for further interest - and not to incur any significant other costs. 

 I don't know where this will end. 

But I believe it is worth the fight

Edited Friday at 12:14 by HP Mum

[lolerz]

I've had a quick (well, quick for a thread of this length),  read of this thread and to be honest I'm struggling to make heads nor tails of the actual crux of the issue here.

You seem awfully convinced that whatever is going on is worth the fight and the odds are in your favour but with how the thread has gone it seems that one trail goes cold so you simply move on to another in an attempt to delay the inevitable. All it does is end up digging holes and confusing others and yourself which means any advice given to you is completely pointless.

I note that for the life of this thread there has not been any documentation or correspondence uploaded for people to have a look. Have you got any that you'd be willing to redact and upload for members to assist you? Right now, it seems people are shooting out advice while being in the dark because it's starting to become very difficult for people who weren't here at the start of this (including myself) to follow along.

Right now, this whole thread is just hypothetical "He said, she said" and is going nowhere fast. Nothing more than basic advice can be given which, as you've sought out some legal advice, is likely not sufficient to actually come to any sort of conclusion.

I, personally, am starting to agree with others that it may be best to consider bankruptcy and put the matter behind you.

 

[aesmith]

2 hours ago, HP Mum said:

 Whoever heard of a (well-located nice) property not selling in >5y?

Post #415 you said you were unable to sell it yourself. Earlier I believe you said there had been expressions of interest, but only if the buyer could acquire the freehold title.

I wonder if the situation with the existing freeholders is such that the property is really unattractive, in ways possibly not obvious to someone who also has an interest in and acts for the freeholders.

[HP Mum]

Ae - as I said, the property was under offer and due to exchange 5y ago.  

 

 

[aesmith]

I was referring to #415 where you wrote "I was forced to try to sell - and couldn't." .

And nearer the start in #79 ..

"I couldn't sell.  I had an incredibly valuable asset. Huge equity.  But the interest accrued / the property market suffered and I couldn't find a buyer even at a level just to clear the debt."

In #194 you said you'd tried to sell for four years. 

The reason for these points is that a lot of the claims against for example your surveyor, solicitor, broker, the lender and now the receiver are mainly founded in a belief that they should have been able to do something but did not. Things that might seem self evident to you but not necessarily to others. Pressing these claims may well need a bit more hard evidence, rather than an appeal to common sense. Can you show evidence of similar properties, with similar freehold issues, selling readily? And solid reasons why the lender should have been able to sell when you couldn't.

Edited Friday at 17:23 by aesmith

[HP Mum]

I understand confusion with this thread.  I tried to keep threads separate because there have been so many angles.    But a team member merged them all.  This is why it's hard to keep track.

This forum exists to help little people fight injustice - however big or small.  Im here to try get a decent resolution. Not to give in to the ' big boys'.

My "matter' became complicated 'matters' simply because a lender refused to sell a property.

What can I say?  I'll try in a nutshell to give an overview:

There's a long lease property. I originally bought it short lease with a s.146 on it from original freeholder.  I had no concerns. So lender should have been able to sell a well-maintained lovely long lease property.  The property was great. The issue is not the property.  Economy, sdlt increases, elections, brexit, covid, interest hikes etc didn't help.  The issue is simple - the lender wanted to keep it.   House or Flat?

Before repo I offered to clear my loan.  I was a bit short and lender refused.  They said (recorded) they thought the property was worth much more and they were happy to keep accruing interest (in their benefit) until it reached a point where they felt they could repo and still easily quickly sell to get their £s back.  This was a mistake.  The market was (and is) tough.   2y later the lender ceo bid the same sum to buy the property for himself. He'd rejected higher offers in the intervening period whilst accruing interest. Lenders have a legal obligation to sell the property for the best price they can get. If they feel the offer is low they won't sell it, because it's likely the borrower will say the same.

I had the property under offer to a fantastic niche buyer but lender rushed to repo and buyer got spooked and walked.  It had taken a long time to find such a lucrative buyer.  A sale which would have resulted in £s and another asset for me.

Post repo lender had 1 offer immediately.  But dragged out the process for >1y - allegedly trying to get other offers. But disclosure shows there was only one valid buyer. Again, points as above.

Lender appointed receiver (after 4 months) - simply to try acquire the freehold.  He used his powers as receiver to use me, as leaseholder, to serve notice on freeholders.  Legally that failed.

Meanwhile lender failed to secure property - and squatters got in (3 times).  And they failed to maintain it.  So freeholders served a dilapidations notice (external) - on me as leaseholder (cc-ed to lender).   (That's how it works legally) Why serve a delapidations notice? If it's in the terms of the lease to maintain the property to a good standard, then serve an S146 notice instead as it's a clear breach of the lease.

I don't own the freehold.  But I am a trustee and have to do right by the freeholders.  This is where matters got/ get complicated.  And probably lose most caggers.   Lawyers got involved for the freeholders to firstly void the receiver enfranchisement notice. Secondly, to serve the dilapidations notice.  The lack of maintenance was in breach of lease and had to be served to protect fh asset. Enfranchisement isn't something that can be "voided", it's in the Leasehold Reform Act 1967 that leaseholders have the right to buy the freehold of the property. It's normal, whether it is a "normal" leaseholder or a repossession with a leasehold house, to claim this right of enfranchisement and sell the property with said rights attached and the purchase price of the freehold included in the final completion price. That's likely what the mortgage provider wished to do.

The lender did no repairs. They said a buyer would undertake them. Which was probably correct. If they had sold.

After 1y lender finally agreed to sell to the 1st offeror and contracts went with lawyers.  Within 1 month lender reneged.  Lender tried to suggest buyer walked. Evidence shows he/ his lawyers continued trying to exchange (cash) for 4 months.  Evidence shows lender and receiver strategy had been to renege and for ceo to take control.   I still think that's their plan. Redact and scan said evidence up for others to look at?

Lender then stupidly chose to pretty much bulldoze the property. 

Other stuff was going on in the background.

After repo I was in touch by phone and email and lender knew post got to me.   Despite this, after about 10 months (before and then during covid), they deliberately sent SDs and eventually a B petition to an incorrect address and an obscure small court.  They never served me properly.  (In hindsight I understand they hoped to get a backdoor B - so they could keep the property that way.)  Eventually the random court told them to email me by way of service.  At this point their ruse to make me B failed.  I got a lawyer (friend paid). The B petition was struck out. They’d failed to include the property as an asset. They were in breach of insolvency rules. So this is dealt with then.

Simultaneously the receiver again appointed lawyers to act on my behalf as leaseholder. This time to serve notice on the freeholders for a lease extension.  He had hoped to try and vary the strict lease. Evidence shows the already long length of lease wasn't an issue.  The lender obviously hoped to get round their lack of permission to do works (which they were already doing) by hoping to remove the strict clauses that prevent leaseholder doing alterations.  You wouldn't vary a lease through a lease extension. You'd need a Deed of Variation for that. This may be done at the same time but the lease has already been extended once and that's all they have a right to.

The extension created a new legal angle for me to deal with.  I had to act as trustee for freeholders against me as leaseholder/ the receiver.  Inconsistencies and incompetence by receiver lawyers dragged this out 3y.  It still isn't properly resolved. The lease has already been extended once so they have no right to another extension. It seems pretty easy to just get the lawyer to say no and stick by those terms as the law is on your side there.

Meanwhile - going back to the the works the lender undertook. The works were consciously in breach of lease.  The lender hadn't remedied the breaches listed in the dilapidations notice.  They destroyed the property.  The trustees compiled all evidence.  The freeholders lawyers then served a forfeiture notice. This notice started a different legal battle. I was acting for the freeholders against what the lender had done on my behalf as leaseholder.  This legal battle took 3y to resolve. Again, order them to revert it as they didn't have permission to do the works, or else serve an S146 notice for breach of the lease.

The simple exit would have been for lender to sell. A simple agreement to remedy the breaches and recompense the freeholders in compensation - and there's have been clean title to sell.  That option was proposed to them.  

This happened by way of mediation for all parties 2y ago.  A resolution option was put forward and in principle agreed.  But immediately after the lender lawyers failed to engage.  A hard lesson to learn - mediation cannot be referred to in court. It's considered w/o prejudice.

The steps they took have made no difference to their ability to sell the property.  Almost 3y since they finished works they still haven't sold. **

** I followed up some leads myself.  A qualified cash buyer offered me a substantial sum.  The lender and receiver both refused it.   I found another offer in disclosure.  6 months later someone had apparently offered a substantial sum via an agent.  The receiver again rejected it.  The problem of course was that the agent had inflated the market price to get the business. But no-one was or is ever going to offer their list price.  Yet the receiver wanted/wants to hold out for the list price.  Which means 1y later not only has it not sold - disclosure shows few viewings and zero interest.  It's transparently over-priced.  And tarnished.

For those asking why I don't give up - I couldn't/ can't.  Firstly I have fiduciary duties as a trustee. Secondly, legal advice indicates I (as leaseholder) could succeed with a large compensation claim v the lender.  Also - I started a claim v my old lawyer and the firm immediately reimbursed some £s. That was encouraging.  And a sign to continue.  So I'm going for compensation.  I had finance in place (via friend) to do a deal and take the property back off the lender - and that lawyer messed up bad.   He should have done a deal.  Instead further years have been wasted.   Maybe I only get back my lost savings - but that will be a result.   If I can add some kind of complaint/ claim v the receiver's conscious impropriety I will do so.   I have been left with nothing - so fighting for something is worth it.

The lender wants to talk re a form of settlement.  Similar to my proposal 2y ago.  I have a pretty clear idea of what that means to me.  This is exactly why I do not give up.  And why I continue to ask for snippets of advice/ pointers on cag.

 

Edited Friday at 18:23 by lolerz
Comments in orange.

[lolerz]

Please see my comments in orange within your post.

[aesmith]

1 hour ago, HP Mum said:

 This is where matters got/ get complicated.  And probably lose most caggers.  

Why ask for advice if you think it's too complex for the forum members to understand?

You'd be better engaging a lawyer. Make sure he has understood all the implications. Stick with his advice. If it doesn't conform to your preconceived opinion then pause and consider whether maybe he's right.

[HP Mum]

 Lenders have a legal obligation to sell the property for the best price they can get. If they feel the offer is low they won't sell it, because it's likely the borrower will say the same.   Yes.  But every interested buyer was offering within a range - based on local market sales evidence.  Shelter site says a lender is not allowed to wait for the market to improve.

Why serve a dilapidations notice? If it's in the terms of the lease to maintain the property to a good standard, then serve an S146 notice instead as it's a clear breach of the lease.   The dilapidations notice was a legal first step.  Freeholders have to give time to leaseholders to remedy.  Lender lawyers advised the property was going to be sold and the new buyer would undertake the work.  Their missive came shortly before contracts were given to buyer.  The buyer lawyer and freehold lawyers were then in contact.  The issue of dilapidations remedy was discussed..  But then lender reneged.  There was a few months where neither I nor freeholders were sure what was going on.  Then suddenly demolition works started.   Before one issues a s146 one has to issue a LBA.  That is eventually what happened.

...legal battle took 3y to resolve. Again, order them to revert it as they didn't have permission to do the works, or else serve an S146 notice for breach of the lease   A s146 was served.  It took 3y but the parties came to a settlement.   (They couldn't revert as they had ripped out irreplaceable historical features).

The lease has already been extended once so they have no right to another extension. It seems pretty easy to just get the lawyer to say no and stick by those terms as the law is on your side there.  That's not the case   One can ask for another extension.  In this instance the freeholders eventually agreed with a proviso for the receiver not to serve another.

You wouldn't vary a lease through a lease extension.  Correct.  But receiver lawyer was an idiot.   He made so many errors.  No idea why the receiver instructed him?  He used to work for lender lawyers. I belatedly discovered he was sacked for dishonesty and fined a huge sum by the sra  (though kept his licence).  He eventually joined another firm and the receiver bizarrely chose him to handle the extension.  Again he messed up - which is why the matter still hasn't been properly concluded.   In reality, its quite clear the lender/ receiver were just trying to overwhelm me (as trustee and leaseholder) with work (and costs) due to so many legal  issues.  Also they tried to twist things (as lawyers sometimes do).  They tried to create a situation where the freeholders would get a wasted costs order - the intent was to bankrupt the freeholders so they could grab the fh that way.   That didn't happen.  They are still trying though.  They owe the freeholders legal costs (s60) and are refusing to pay.  They are trying to get the freeholders to refer the matter to the tribunal - simply to incur more costs (the freeholders don't want and cant's afford to incur)

 Enfranchisement isn't something that can be "voided", it's in the Leasehold Reform Act 1967 that leaseholders have the right to.... The property does not qualify under 67 Act.  Their notice was invalid and voided.

B petition was struck out. So this is dealt with then.  That action was dealt with yes.   But they then issued a new claim out of a different random court - which I'm still dealing with alone.  This is where I have issues with my old lawyer. He failed to read important legal docs  (which I kept emailing and asking if he was dealing with) and  also didn't deal with something crucial I pointed out.  This lawyer had the lender in a corner and he did not act.

Evidence shows lender and receiver strategy had been ....  Redact and scan said evidence up for others to look at?   I could.  But the evidence is clear cut.  Receiver email to lender and lender lawyer: "our strategy for many months  has been for ceo to get the property".  A lender is not allowed to influence the receivership.   They clearly were.  And the law firm were complicit.  The same firm representing the lender and the ceo in his personal capacity - conflict of interest?   I  also have evidence of the lender trying to pay a buyer to walk.  I was never supposed to know about this.  But I was given copies of messages from the receiver "I need to see you face to face, these things are best not put in writing".  No need to divulge all here.  But in hindsight it's clear the lender/ receiver tried - via 2 meetings - to get rid of this buyer (pay large £s) to clear the path for the ceo.   One thing I need to clarify - if a receiver tells a lender to do - or not to do - something should the lender comply? 

Edited Friday at 20:02 by HP Mum
typo