my Leasehold/Freehold property and its issues.

[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!.

[BazzaS]

Nor me too (well, three!)

[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.

[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.

[BazzaS]

“The lender appointed agents.  One of which is also marketing an almost identical property - bit smaller, less outside space and no nice views, but fresher refurb - in same tiny street - 45% more expensive!”

 

“Marketing” doesn’t mean it will sell for that, and they may have to wait to get any interest / a sale.

 

What is most likely key is the way it was sold;

a) if auctioned (unless the auction wasn’t advertised!) they’ll claim it sold at “market rate” : the rate an auction attracted!

b) if not auctioned and the comparable (less desirable?) property goes for a higher value soon : much easier to claim sale at an undervalue. Expect them to claim the refurb made all the difference, though.

 

[BazzaS]

Is the other property (that you are using as a price comparator) freehold or leasehold?

 

if leasehold : are the terms (duration remaining) of the 2 leases identical?

[BazzaS]

HP Mum, are you (Or the person you are posting on behalf of) the LH, or FH?

[BazzaS]

Well, then, clearly you (you say you are the rep. For the FH : do you have authority to act as their agent?) are aware of the lender’s actions. Are you / the FH trying to make themselves unavailable? (see your other thread about service of notice!).

Are you in contact with the FH ?

 

Simplest resolution for the FH (or you,?if you have their authority to act) : contact the lender, remind them they have repossessed the lease (only) ......

Edited September 30, 2019 by BazzaS

[BazzaS]

You say you are the “rep” for the FH, but it is still unclear if you have authority to act (as their agent) for them : you’ve been asked this but haven’t answered.

 

If you have no authority to act : you have no rights in the matter.

 

It is also unclear so far:

a) if you are in contact with the FH

b) if the FH knows what is going on

c) what you are actually trying to achieve here, and

d) What the FH wants,

and c) and d) aren’t necessarily the same!

[BazzaS]

Do the Trustees know what is going on?

What do they want?

(I don’t know what you mean by “Protect FH”, any attempt to sell the FH would fail at the conveyancing stage, if not before!), so I’m not sure the estate agent and lender who has re-possessed will “end up in trouble....”

 

Do the trustees really want the property left boarded up with no actual tenant in-situ?

Are they aware this may lead to the property deteriorating and then being worth less?

Edited September 30, 2019 by BazzaS

[BazzaS]

The redress the Trustees have is to remind the lender that it is only the LH the lender has.

 

Trustees aren't doing themselves any favours by not communicating with the lender : "we want damages because the lender has boarded up the property, but aren't engaging with them, and deliberately aren't contacting the lender" - that won't fly. The Trustees have a duty to mitigate their loss before they can claim it.

 

Trustees wont suffer loss by "sale of the FH by the lender" as it is, at most an error, and would get caught at the conveyancing stage, if not before.

 

I'm still unclear why the Trustees don't just contact / engage with the lender .......

Edited September 30, 2019 by BazzaS

[BazzaS]

 

Quote

To be clear - the original lessee suffers financially every day the agent doesn't sell the leasehold property.  

 

And there we have it. Up until now, it has been lender (who repossessed the lease), and freeholder, being discussed.

 

You wouldn’t be / be connected with the original lessee, by any chance?

 

What with you trying (other thread) to establish the FH had never had notice of the repossession, and the lender had no way of contacting the FH, which seems at odds with “trustees have been in touch by e-mail”.

 

If you are / have a direct connection with the original lessee, AND you are an agent for the FH, you are at risk of breaching a fiduciary duty, if you let your interests towards the first affect your duty towards the second.

 

If you don’t have that connection to the original LH : stop looking to “punish” the lender / estate agent, and start working with them.

Edited September 30, 2019 by BazzaS

[BazzaS]

10 minutes ago, HP Mum said:

Bazza - Im not sure i understand?

 

Lets get the situation entirely clear, then.

 

Were you the person who held the lease that the lender repossessed?

If not, do you have any direct connection to them?

 

Are you acting purely for the FH (The Trustees), or do you have any interest on behalf of the original lessee? 

[BazzaS]

I can’t really say it any better than Ethel Street just has.

 

I’m still left with the feeling there is more going on here (based on the lack of response to queries here, and the overall ‘tone’ of both threads : OP asking the same question over and over, sometimes in different ways, but lack of engagement with the lender, with evasion as to what is REALLY wanted as an outcome).

 

Hopefully, if someone disagrees and has an answer for the OP they’ll join this thread : me, I’m joining Ethel Street .....

[BazzaS]

Is this related to one or more (which?) of your previous complicated Landlord / Tenant and Mortgage repossession threads.

 

if so, knowing which would help disentangle the complexities : the background could be critical, but it is difficult to know which are and aren’t related.

You might consider getting the individuals to post here themselves, rather than you posting multiple (linked or not??) complex scenarios.

[BazzaS]

Thanks for the pm.

 

I’d still suggest you consider posting (openly, on each thread) which threads involve which people, so people get the benefit of any relevant previous, without them all getting confused.

 

If any thread is an update on a previous thread, consider asking the Mods (site team) to merge them if the previous adds useful background.

[BazzaS]

Odd that there is a repossessed and unsold property.

are there other debts as well as the mortgage?

 

my reason for asking is that if the property is as yet unsold, how can they claim for a ‘mortgage shortfall’ if they don’t yet know if there will be one, and if there is one how much it will be.

 

Either the bankruptcy can be fought off on this basis, or there is more to the story.

 

An additional factor to consider: Is going bankrupt a good or poor option for the alleged debtor?

If they were considering going bankrupt but didn’t have the fee to hand : the mortgage co. might be “doing them a favour”!

It depends on if bankruptcy is a good option or not for them.

Often it isn’t, but sometimes it can be, with the “slate wiped clean” benefits.

[BazzaS]

A point I made, UB, though you have phrased it better 

[BazzaS]

I suspect they are “playing the ‘long game’l

 

a) they expect you to go for a set aside of the SD : if you don’t they get their B petition

 

b) they expect you to go for a set aside, but hope to get your address for service of a valid SD from it. If the address is good enough for you to use for court papers it is good enough to serve to.

 

c) If you go for a SD saying you don’t have an address, they agree to have the set aside heard at a hearing in person. Then then use that to serve you with a valid SD, served in person & in front of the judge hearing your set aside application ......... so they can say “not a shadow of doubt it was served!”

Edited February 21, 2020 by BazzaS

[BazzaS]

Do they have an address for you?

 

if not, how are you expecting them to bring it to your attention? And / or serve it in person??

[BazzaS]

Expect them to bring up every communication and claim that you’ve been dodging them / not providing them with an address to serve to.......

[BazzaS]

Your bankruptcy would only get them the leasehold (or portion of the value thereof) and not the freehold, though?

[BazzaS]

55 minutes ago, HP Mum said:

Bazza - yes correct. They loaned knowing it was lh too.

Nothing unusual about a LH mortgage, other than:

a) they routinely offer a lower LTV ratio

b) if the value of the lease isn’t increasing, the equity decreases over time, as the term remaining decreases.

 

b) may be of particular import if the remaining term of the lease is of the order of 80 years or less.

[BazzaS]

5 hours ago, HP Mum said:

 

I see the bank has recently set up a btl arm - so you maybe correct?

 

 

do you mean they are buying FH / LH to let themselves, or they have an arm offering FH’s btl mortgages?

[BazzaS]

What is your (realistic!) desired end-point here?