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This is an interesting one:
IN 2002 I had a hard time financially. I had a house with considerable amount of equity (I still have it) and my business went bust. I was unable to pay the mortgage and I wasn't working. I asked my bank/mtg provider to give me a loan of £55,000 against the mortgage. They dallied around for many months as I watched the arrears creeping up and my debts accruing. eventually they issued a repossession notice on me. I pleaded that it was crazy asking me to leave and repossessing me when there was so much equity and eventually they agreed to give me the money.
However, they said I had to clear one 2nd charge of £13000 to another bank who had a directors guarantee on my business. They hadn't called the debt in but my bank insisted it was cleared. They also requested the clearance of a Caution which had been registered by an ex employee ( which I disputed but could do nothing about as the Land Registry are like the CRA's) I would have left it there forever. It was for approximately 22k.
My bank ADDED that to my £55k making the loan £91k despite notes on the SAR documents stating that their underwriting department did not agree with lending me more just one week before it was lent.
It all went through and I have been paying the mortgage ever since, until recently when I didn't get paid for a job I did and it cost me dearly. My mtg fell into arrears again and a repossession order was slapped on me. when I went to the hearing I was asked if I agreed with the banks figures of the arrears and I said NO, not if the details of my defense to their claim was acknowledge by the court as correct.
My claim was this:
I had mortgage arrears of £23k
I had £13k to the 2nd charge bank ( different bank to the 1st charge bank)
I had the Caution of £22k
I wanted another £30k to clear all my other debts.
Originally asking for the £55k I would have had £30k to clear debt and 23k for mtg arrears.
Now as they forced me to clear the other charge and caution I put it to the court that the further mortgage advance should have been treated as a loan, regulated by the CCA NOT treated as a Mortgage. I argued that it should have been treated as a separate regulated agreement for the provision of a fixed sum, restricted use debtor creditor falling under section 11(1)(c) of the CCA and the remainder should have been treated as a sparate regulated Un-restricted use debtor creditor agreement falling under section 11 (2) of the Act and by virtue of section 18 (1) of the CCA the agreement should have been a multiple agreement and not treated as a whole as they did for £90k which renders it irredeemably unenforceable and therefore they must pay me back all I have paid in!
It will not render the mortgage in total unenforceable, but this part if I'm right.
At the original hearing the Judge told the bank to go away and come back with their response and they came back with the fact they are relying upon s.16.7(2) of the CPR which effectively says I have to prove it!
so, if you have got your head around all that then what I need to know is whether under any circumstances a further advance on a mortgage can be deemed as a loan regulated by the CCA?
Personally, I see this as a loan expanded out of all proportion by the bank and well outside my affordability at that time (which is supported by their underwrites notes) now I have to prove it should be as a regulated agreement rather than a mortgage. All items barring the £30k we had in cash were under £25k limited on regulated agreements at the time.
IN 2002 I had a hard time financially. I had a house with considerable amount of equity (I still have it) and my business went bust. I was unable to pay the mortgage and I wasn't working. I asked my bank/mtg provider to give me a loan of £55,000 against the mortgage. They dallied around for many months as I watched the arrears creeping up and my debts accruing. eventually they issued a repossession notice on me. I pleaded that it was crazy asking me to leave and repossessing me when there was so much equity and eventually they agreed to give me the money.
However, they said I had to clear one 2nd charge of £13000 to another bank who had a directors guarantee on my business. They hadn't called the debt in but my bank insisted it was cleared. They also requested the clearance of a Caution which had been registered by an ex employee ( which I disputed but could do nothing about as the Land Registry are like the CRA's) I would have left it there forever. It was for approximately 22k.
My bank ADDED that to my £55k making the loan £91k despite notes on the SAR documents stating that their underwriting department did not agree with lending me more just one week before it was lent.
It all went through and I have been paying the mortgage ever since, until recently when I didn't get paid for a job I did and it cost me dearly. My mtg fell into arrears again and a repossession order was slapped on me. when I went to the hearing I was asked if I agreed with the banks figures of the arrears and I said NO, not if the details of my defense to their claim was acknowledge by the court as correct.
My claim was this:
I had mortgage arrears of £23k
I had £13k to the 2nd charge bank ( different bank to the 1st charge bank)
I had the Caution of £22k
I wanted another £30k to clear all my other debts.
Originally asking for the £55k I would have had £30k to clear debt and 23k for mtg arrears.
Now as they forced me to clear the other charge and caution I put it to the court that the further mortgage advance should have been treated as a loan, regulated by the CCA NOT treated as a Mortgage. I argued that it should have been treated as a separate regulated agreement for the provision of a fixed sum, restricted use debtor creditor falling under section 11(1)(c) of the CCA and the remainder should have been treated as a sparate regulated Un-restricted use debtor creditor agreement falling under section 11 (2) of the Act and by virtue of section 18 (1) of the CCA the agreement should have been a multiple agreement and not treated as a whole as they did for £90k which renders it irredeemably unenforceable and therefore they must pay me back all I have paid in!
It will not render the mortgage in total unenforceable, but this part if I'm right.
At the original hearing the Judge told the bank to go away and come back with their response and they came back with the fact they are relying upon s.16.7(2) of the CPR which effectively says I have to prove it!
so, if you have got your head around all that then what I need to know is whether under any circumstances a further advance on a mortgage can be deemed as a loan regulated by the CCA?
Personally, I see this as a loan expanded out of all proportion by the bank and well outside my affordability at that time (which is supported by their underwrites notes) now I have to prove it should be as a regulated agreement rather than a mortgage. All items barring the £30k we had in cash were under £25k limited on regulated agreements at the time.
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