All monies charge possession order help court claim

[Amethyst]

POSTED ON BEHALF OF NEW USER


Was in court for a all moneys charge possession order for non payment of a business loan - reasons being business hadnt got off ground to launch, 3 bereavements in 18 months and a loss of income from x husband for family. Produced a letter from an investor who is interested in the business and also offered to settle the arrears in full [10k in repayments behind] from a compassionate friend who offered to help save my further trauma of having to leave my home. There is over £150 equity however its the toll of more stress I wanted to avoid. Am a LTD co, the judge gave 3 months to allow for sale of property but had no power to over rule the banks call on the whole balance. The bank also applied a for a money order as well which was also granted. This means I believe that I will also have a CCJ. Will be so difficult to get mortgage / tenancy etc now. So despite offering the arrears and a potential investor they hve further stuck the knife in,

Can I appeal to stop the CCJ based on me selling my home now? At the time I was stunned at the result and didn't know what to say or do.

[Amethyst]

Re: All monies charge possession order help

Hi,

What date was the possession order granted and have you taken steps to sell your property ?

How much was the loan for ?

How much in arrears were you? (£10k)

Your friend that wrote the letter of intention to pay off the arrears and purchase/invest in your ltd company - would that investment have enabled you to pay off the debt?

You have £150k equity in your property - would releasing that equity cover the loan call in ?

You may be able to appeal the judgment to vary to installments covering arrears based on the following but it would need a very good investigation of the paperwork behind the loan and a bit of research on any more recent case law.

With an "all monies" mortgage, or clause, borrowers cannot rely upon s36 AJA where a charge securing a bank overdraft provides that the sum owed shall only become payable on demand, since, in those circumstances, there is no agreement to defer payment (see Administration of Justice Act 1973 s.8 and Habib Bank Ltd v Taylor [1982])

However, many mortgages, although expressed in an “all monies” form, are also qualified by an offer letter or other side letter or agreement providing for repayment of the advance by instalments. In Governor and Company of the Bank of Scotland v Grimes [1985], it was held that in such cases the mortgage may be treated as an instalment mortgage for the purposes of the Administration of Justice Act 1970, s.36 and the Administration of Justice Act 1973, s.8. In these cases the affidavit in support should exhibit the relevant letter or side agreement and, in setting out the state of account between the mortgagor and the mortgagee, should show (inter alia) the current instalment payment (at the date of the affidavit) and the amount of instalments in arrear (at the date of issuing the originating summons and at date of the affidavit)as though there were no provision for earlier payment in the event of default.

Furthermore, for a property that is a dwelling house the court may only order the instalments that are in arrears to be paid Bank of Scotland v Grimes[1985]

This means that s.36 AJA 1970 can and does apply to certain "all monies" mortgages.

This thread - http://www.legalbeagles.info/forums/...ause-mortgages might be of some help and comfort.

[ncf355]

Re: All monies charge possession order help

Hmm

You mention it's a Ltd Co

Was there a personal guarantee on the debt then?

Was the court claim made against you, or the Ltd Co?

[Epiphany]

Re: All monies charge possession order help

The arrears were about £13k but was not able to offer an more than £10k , the whole full and final demand was for £120+k The £10k came from a family friend, the investor looking into the business is in the early stages of due diligence and I think would not pay off the debt but invest more money to get the business off the ground so I know this in itself would not keep Lloyds happy. At the end of the day I know the picture was bleak in the eyes of lloyds but after being bereaved I thought they would have allowed 6months to allow the business its chance and THEN go for possession. Especially as a large deposit of arrears were paid . Maybe I have misunderstood things here , because I heard the banks representative as to apply for a CCJ which made me think they neednt have added that as well as a full demand of the loan back. Is it the fact that I was in court anyway deemed an automatic CCJ full stop and therefore unavoidable?
Yes house goes on the market next week , estate agents coming to take images and get on the market on Monday. Hearing at court was Tuesday.

[Epiphany]

Re: All monies charge possession order help

just to add there is sufficient equity to settle the loan and the outstanding mortgage with money after spare but not enough to get a property adequate for a family

[Amethyst]

Re: All monies charge possession order help

Thank you, and welcome Epiphany xx

Do you have a copy of the loan documents that you could scan/photograph and upload (removing personal details first) ?

[ncf355]

Re: All monies charge possession order help

Could you answer this one as well please Ep?

Hmm

You mention it's a Ltd Co

Was there a personal guarantee on the debt then?

Was the court claim made against you, or the Ltd Co?

[Epiphany]

Re: All monies charge possession order help

the claim was made against me as I personally guaranteed the loan - fool that I was. I was so convinced the business would take off quicker. A catalogue of unfortunate events jeopardised this in the last 18 months, being bereaved of immediate family thrice over would hinder any ability to be as dynamic I am sure.

[Epiphany]

Re: All monies charge possession order help

the documents are quite large and I do not have a scanner here. I really dont think I have a leg to stand on as the duty solicitor at court browsed through them and said it was an all monies charge - no chance of challenging. The bank can do as they please anytime they like based on the guarantee I signed. In memory when I sought legal advice there were so many legal terms flying around . If I EVER go into something like this again I will ask the professional to speak in lay terms and lay it on the line graphically the worst case scenario .Sorry, unnecessary rantings there and a complete waste of time I know. Just very bruised right now

[Amethyst]

Re: All monies charge possession order help

Yes Solicitors say that, and they are a very tricky clause to deal with. Jester got through his with negotiation, but was a tough time for him and his family. If you have a read of his thread (still brings tears to my eyes) his 'duty solicitor' on legal aid just wrote off the all monies clauses too so they lost, but he ended up keeping his house.

Where did you get legal advice from?

You're quite welcome to rant as much as you like, I think you deserve it after the time you've had lately. Court must have been awful on Tuesday too.

If the file sizes are too big then feel free to email them to me, admin@legalbeagles.info , and I can sort them out for you. Even if there isn't anything we can do it's worth a look, you sound quite dejected, understandably and ready to chuck in the towell, but you're getting your house on the market, and you have at least 3 months, it isn't over till the fat bank sings, and we'll try help as much as we can xxx


And just realised what you meant on the document sizes doh! sorry. Can you type the header up from the loan document and the personal guarantee anything important - directors waiver of legal advice ? and also IF you can work it out, the all monies clauses from the loan document.

[ncf355]

Re: All monies charge possession order help

Did they serve you with a default notice?

[ncf355]

Re: All monies charge possession order help

Ame, do you think this is one worth Celest/PT looking at?

[Amethyst]

Re: All monies charge possession order help

I wish we could multiply them ten fold at the moment ncf, yes definately, but lets gather as much info first xxxx

[ncf355]

Re: All monies charge possession order help

Fair comment!

[Epiphany]

Re: All monies charge possession order help

thanks so much Amethyst, I wish I found this forum before now. Because I have not received any maintenance payments and no income from the business (despite hunting for work too) I could not afford a solicitor so went to court alone. I shall do my best to gather what I can that you mentioned over the weekend as I have to go out very soon. Re my query on the CCJ though, can that be removed if I am still selling my house and they are getting what they want? That CCJ haunts me because of how I will now struggle to get a mortgage or rent something. Oh and yes - they did serve a default notice