Claim for possession?

[android]

I wonder if anyone can help me with this, sorry it's very long?
A friend lent me 10% deposit to buy a house at auction and there was no specific agreement on repayment other than I would repay it with few percent interest when I had renovated it and I could re mortgage. This was just before the property crash and mortgages were easier to get.
Over the next few years, he occasionally asked me to make some repayment of at least the interest to which I asked him could he let me know what this would be but he never provided this.
4 years later he sent me a letter via a debt collector stating that as I was in default they were applying to repossess.
Over the next 2 years and through a solicitor ( which I now cannot afford) I found out that he had a legal charge on the property but I hadn't seen it before. This must have been signed when I used his solicitor to complete on the 90% mortgage to buy the property. (This firm of solicitors have also been closed down by the SRA for malpractice or something similar)
He also created another contract/agreement which I hadn't signed and this had addition clauses with consequences in the event of non payment. He has entered a signature that looks similar to mine but he would have had access to this as we worked together.
These 2 alleged agreements state different interest rates & terms for repayment and one of the agreements states, the agreement was taken out 12 months before I received the loan. This also states the property name as it's now called which was not the name it was called at the time he says I agreed to the terms. The date error also means that the interest calculated or any action/default dates are wrong (if I'd agreed to the terms) because they've taken it from an earlier date.
I've also made offers to repay the loan amount until the discrepancies on interest rates and the date error could be resolved. He refused an offer of £1,500 a month off the capital but would accept £500 a month but for twice the amount based on his claim of interest incurred.
He has made a claim through the court for possession and the hearing is very soon.
The claimant is saying, it is owed, i haven't paid anything so he's entitled and he'll leave it up to the court to decide which rate of interest they enforce!!!
Can anyone help me on the likelihood that a judge would enforce this charge with all these errors.
Many Thanks in advance for any help offered
p.s The loan came from a chartered accountant and I also wondered if I could complain to any one within his profession?

[bluebottle]

Re: Claim for possession?

I wonder if anyone can help me with this, sorry it's very long?

A friend lent me 10% deposit to buy a house at auction and there was no specific agreement on repayment other than I would repay it with few percent interest when I had renovated it and I could re mortgage. This was just before the property crash and mortgages were easier to get.

Over the next few years, he occasionally asked me to make some repayment of at least the interest to which I asked him could he let me know what this would be but he never provided this.

4 years later he sent me a letter via a debt collector stating that as I was in default they were applying to repossess.
Over the next 2 years and through a solicitor ( which I now cannot afford) I found out that he had a legal charge on the property but I hadn't seen it before. This must have been signed when I used his solicitor to complete on the 90% mortgage to buy the property. (This firm of solicitors have also been closed down by the SRA for malpractice or something similar)

He also created another contract/agreement which I hadn't signed and this had addition clauses with consequences in the event of non payment. He has entered a signature that looks similar to mine but he would have had access to this as we worked together.

These 2 alleged agreements state different interest rates & terms for repayment and one of the agreements states, the agreement was taken out 12 months before I received the loan. This also states the property name as it's now called which was not the name it was called at the time he says I agreed to the terms. The date error also means that the interest calculated or any action/default dates are wrong (if I'd agreed to the terms) because they've taken it from an earlier date.

I've also made offers to repay the loan amount until the discrepancies on interest rates and the date error could be resolved. He refused an offer of £1,500 a month off the capital but would accept £500 a month but for twice the amount based on his claim of interest incurred.

He has made a claim through the court for possession and the hearing is very soon.

The claimant is saying, it is owed, i haven't paid anything so he's entitled and he'll leave it up to the court to decide which rate of interest they enforce!!!

Can anyone help me on the likelihood that a judge would enforce this charge with all these errors.

Many Thanks in advance for any help offered

p.s The loan came from a chartered accountant and I also wondered if I could complain to any one within his profession?

Hi and welcome/welcome back to Legal Beagles. A few questions -

1. Is your friend for real?
2. Is your friend authorised the OFT/FCA by to lend money?
3. Is there a written agreement or contract in respect of the loan to buy the property at auction and, likewise, for the 90% mortgage?
4. Who is the lender for the 90% mortgage?
5. What sort of malpractice was your so-called friend's solicitors involved in for the SRA to close them down?
6. Have you spoken to the police about your so-called friend forging your signature on an agreement to which additional terms have been added without your knowledge and agreement?
7. Which regulating body is the accountant authorised by?

As a retired police officer, I have to inform you that forging someone's signature on a document is a serious matter and carries a substantial custodial sentence if found guilty. The potential offences are under the Counterfeiting & Forgery Act 1981 and the Fraud Act 2006 and carry maximum penalties of 10-14 years in prison. Not only this, using or attempting to use a document in evidence in legal proceedings, knowing it to be a forgery, is a very serious matter indeed. Potentially, it is Attempting to Pervert the Course of Justice, an offence under Common Law, which carries a maximum of life imprisonment.

If your so-called friend has included the document with your forged signature on it in the court bundle, you need to take action now. Certainly, you need to contact Action Fraud, as if the document has been used to obtain a mortgage or other financial consideration without your knowledge or agreement.

I will come back to this thread. Could you post up answers to the questions above, please?

[android]

Re: Claim for possession?

Thanks for this, I'll try to answer all your questions in order.
1. I wish he wasn't 'real' or didn't exist
2. I'm not aware that he is a member of OFT/FCA and there's no mention of this on any paperwork
3. There was no agreement verbal or otherwise when he lent me 10% deposit at auction. He had told me that his builder friend was going to fund 100% of the purchase if I was successful at auction. After I won the bid, he then found out this person couldn't access the funds so he drove to the auction with the cheque. The next 2.5 months he tried to get the 90% but failed so I applied for a Bank of Scotland mortgage and I was successful.
4. Bank of Scotland and they are ranked higher on the land registry
5. SRA have struck off 2 partners and 3 others suspended for a period but can only work as solicitors approved by SRA. This is a transcript from an article on this case dishonesty and "behaving in a way likely to diminish public trust". They were also accused of breaching the solicitors code of conduct and accounting rules The solicitor I used worked at the practice but wasn't a partner and I believe working somewhere else.
6. I did ring the police sometime back and all they said was, it's a civil matter so contact a solicitor.
There was no written agreement for this loan and he's obviously created the 'Agreement' sometime 2 years later after I changed the property name as it states the new name. Also the terms, interest rate, date are all different to the legal charge with land registry. I also did not know this charge was in place and I can only assume, the solicitor I used to complete on the 90% mortgage was this friends solicitor. So I think he's slipped it in when I signed my mortgage or he's copied off these documents. Also, his statement for court says these 2 agreements were produced and signed the same day, so how can they be different?
7. He's a chartered accountant

He's using these 2 alleged agreements on a claim through court as he says that as I haven't paid the 10% loan plus interest back I have defaulted as per the agreements. As both agreements have different interest rates and terms, I've been trying to establish what exactly I do owe? The verbal agreement we had was, I would renovate the property and would re mortgage when I could. No exact period was discussed or agreed.

Will a court enforce a claim for repossession on so called agreements that don't even agree with each other and both produced by the claimant? My denial of signature or agreement is going to take longer to prove but how will a court decide which agreement if any is in place?

Many Thanks Again for your help

[Amethyst]

Re: Claim for possession?

He has made a claim through the court for possession and the hearing is very soon.

Have you submitted a defence to the claims he has made?

Is your signature on the agreements ?

[android]

Re: Claim for possession?

Yes, I've submitted a defence and denied signing either of the agreements and also pointed out the inconsistencies between the two documents. Also, the claimants statement of events when I received the cheque is also full of lies so I've submitted a witness statement from a friend who was with me at the time.


Many Thanks

Both documents have been signed by similar signatures to mine but I did not sign either of them or seen these documents previously. It took them 5 months to produce one of the agreements

[bluebottle]

Re: Claim for possession?

Try this for a defence -

The Defendant puts the Claimant to strict proof that he has this or any other liability to it.

Remember that the burden of proof lies on the Claimant, not you. As to whether the Charge at the Land Registry is valid is a matter for a legal professional to advise on. Chartered accountants are regulated by the Institute of Chartered Accountants in England & Wales.

This link will take you to the ICAEW's Complaints Page on their website - http://www.icaew.com/en/about-icaew/what-we-do/act-in-the-public-interest/complaints-process

As for the forged documents, I can contact someone who has a lot of experience in the field of Loan and Mortgage Fraud and has, themselves, been a victim of such fraud, to ascertain if they would be able to examine the documents. I can only do this with your permission.

Hope this helps.

[Amethyst]

Re: Claim for possession?

How much approx is the amount he is claiming from you ?

[bluebottle]

Re: Claim for possession?

"It's a civil matter," is the usual excuse from local plods, Android. Total crap because they can't be bothered to get off their backsides and do some real police work. Contact Action Fraud. Go to the main forum page and click on the Action Fraud logo.

The amount involved will determine who deals with any fraud.

[android]

Re: Claim for possession?

I would very much appreciate you contacting your colleague regarding the matter of forgery.

How or when do I put the claimant to strict proof? Is this something I do at the hearing?
Apologise but I'm not aware of the court or defendant procedures.

Many Thanks for your help and I will write a complaint to ICAEW's

[android]

Re: Claim for possession?

He's claiming the initial amount plus interest currently totalling £54k. He's calculated the interest from 2007 when in fact it was 2008, he also started threatening repossession in February 2012 but the charge stated £30k payable on or before Aug 2012. Also the alleged agreement has different interest rates or terms to that mentioned on the charge.
Will a judge take all this into consideration?

[android]

Re: Claim for possession?

Thank you I will as I did think at the time, why aren't they interested as it's fraud!

[bluebottle]

Re: Claim for possession?

A few more questions -

1. Which police force said, "It's a civil matter"?
2. Does the main mortgage provider know of your so-called friend's alleged interest in the property?
3. Has your so-called friend endorsed the documents in the court bundle "Certified as a true copy", as well as dated and signed the endorsement?

Strict Proof means that the Claimant has to prove their case beyond all doubt.

Where Contract Law is concerned, it is pretty straightforward in that where parties enter into a contract and agree terms, those terms are binding upon both parties. The Principal - the provider of the contract - cannot subsequently alter or change the terms without the agreement and consent of the other party. Some contract providers will try and insert clauses into contracts which appear to give them carte blanche to do whatever they like, including changing terms to the other party's detriment. However, there are laws, e.g. Unfair Contract Terms Act 1977 (as amended), which govern and regulate contract terms.

As for the other points, I should think a judge will take a very dim view of your so-called friend's attempts.

Above all else, I would urge you to seek competent professional legal advice as soon as possible. The input of a legal professional could prove invaluable further down the road.

Hope this helps.

[android]

Re: Claim for possession?

1.Cheshire Police
2.I haven't asked the question
3.No they haven't

'Burden of proof' How or what do I say to the judge???

Do the inconsistencies between the 2 documents not help me in that he's made it up and how do I know what he's entitled to if both are different?

My new address could not have been entered in 2008 (When he claims I signed the agreement) as I didn't change it until 2010/11? Will this help?

Will it help in court, The fact I've offered to make repayment off the loan but not the interest until he'd cleared up all the inconsistencies but he refused to accept it?

Thanks again for your help

[ScotsLawyer]

Re: Claim for possession?

I am sorry to hear of your difficulties. Whilst I am a solicitor based in Scotland rather than England (where the court rules are different), I hope the following will help regarding the upcoming court hearing.

You don't say what type of hearing it is, but you say that you have lodged a defence. If it is the first hearing in the case, it may be that the judge will be wanting to decide what the most appropriate next steps will be. Such steps might be fixing an evidential hearing (where the parties lead evidence to prove their cases) or fixing a further procedural hearing to allow either or both parties to carry out some task which will ultimately lead to the resolution of the matter.

You really need specific advice from a locally qualified solicitor on the merits of your case. You have said that you cannot afford a solicitor, but you may therefore be eligible for legal aid. I would suggest that you:

1) Attend the hearing and make the judge aware of your position, including the fact that you have done your best to resolve matters;
2) Ask for the case to be postponed while you seek legal advice.

In Scotland there are quite specific requirements that have to be fulfilled in repossession actions, and sheriffs (judges) are loathe to pass decree against unrepresented defenders without giving them every opportunity to seek advice. I would therefore hope that these factors would work in your favour in England too. It might even be that the action raised is not competent (e.g. if the charge has been incorrectly served, or it fails to comply with relevant legislation). In this case it might be possible to ask the judge to dismiss the action. However, you will need specific advice on the relevant law to know whether or not this is an option for you.

Good luck!

[android]

Re: Claim for possession?

Thank You again,
The hearing is a claim for
1. The sum of debt ( Capital loaned & Interest to date )
2. Possession of the property

their claim is based on my non payment but I've been unable to determine what the actual interest rates should be as his documents don't agree and also I deny entering into either agreement.
I did see the law society and this was their advice:
The loan
There are four requirements that must be met for a contract to be enforceable.
Firstly, there must be an agreement between the two parties. This is established by there being an offer and an acceptance.
Secondly, there must be an intention to create legal relations. Only where the parties have entered into an agreement, which they intend to be legally binding, will the courts treat the agreement as a contract.
Thirdly, there is a requirement of certainty. The court will not enforce an agreement unless the parties have reached agreement on all necessary terms and those terms are sufficiently clear.
Fourthly, there must be consideration. The doctrine of consideration requires both sides to the agreement to bring something to the bargain.

It is difficult to pursue an argument that there is no agreement. This is because Mr ......giving you £.......which you accepted, constitutes an exchange of an offer and acceptance.
Similarly, it is difficult to argue against there being an intention to create legal relations. This is based on the general presumption that commercial agreements are always intended to be legally binding unless a clause in the agreement explicitly states otherwise. There is a clear history of you and Mr....... intending to create legal relations, through your continued negotiations preceding the actual exchange of money for the deposit, as well as your continued interactions following the exchange.
For these reasons, this advice letter will focus on the third and fourth requirements.
Certainty
The courts may refuse to enforce an agreement if there appears to be uncertainty about what has been agreed, or if some important aspect of the agreement is left open to be decided later. They generally expect all elements of the contract to be determined at the outset.
As per the facts you provided us with, Mr .........handed you a cheque for the deposit without any further details as to when repayment of the loan was to be expected by, how much interest was to be charged and what the consequences of default would be. Instead, it was understood that the exact terms would be established when a mortgage had been secured for the cottage. Therefore, at the time the cheque was handed to you, the agreement was incomplete. If an agreement is incomplete and leaves undecided and undetermined an essential term of the contract, then the courts can choose not to enforce it. For example, in the case of May and Butcher v R, which also involved a verbal agreement, it was held by the court that no contract existed since its essential terms, specifically the price and the date of payment, were undetermined. In accordance with this, it could be argued that the repayment date, rate of interest and consequences of failing to repay, were essential terms which should have been determined from the outset and these terms are necessary to make the contract effective and legally binding.
You could argue that the repayment date is an essential term because you needed to know when to have the money ready for repayment by. Similarly, it would have been important for you to know the interest rate and the consequences of default, as this would have allowed you to determine the total repayment due from the outset, whether you could afford the loan and whether you were prepared to accept the consequences of not being able to comply with the loan.
There is still confusion as to what interest rate you are being charged. It is important for you to emphasise this because as stated in the case of Mamidoil Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD where a contract comes into existence, even the expression "to be agreed" in relation to future obligations is not necessarily fatal to its continued existence. The exception to this would be if the term could be defined as being essential to the contracts existence.
It would appear that ............ would suggest that the terms of the contract were documented in the mortgage and the agreement that were later signed by you. However those documents and ........ later actions are not consistent either. For example, there are inconsistencies as to when the repayment of the loan is due. From 2008–2010 there was no communication between you and ........about the repayment of the loan. However, in 2010 he asked you to pay a portion back but failed to follow this up with figures. This sudden demand suggests that the repayment date was not determined at all. Furthermore, you may want to analyse the mortgage deed and the loan document that was signed to see if there are any other critical inconsistencies between the two, such as interest rates and repayment dates; this will further emphasise that the documents do not reflect what was agreed upon between yourself and..........
Consideration
Consideration refers to what one party to an agreement is giving, or promising, in exchange for what is being given or promised from the other side. In loan agreements, the consideration provided by the debtor is a guarantee to repay the loan by a specified date and/or the repayment of the loan with the agreed interest rate. However, given that neither the repayment date nor the interest rate was determined at the time of your agreement with .........., it can be argued that you have provided no consideration for his offer. If there is no consideration, there is probably no contract.
Charges and Repossession
The fact that a mortgage has been registered against the title does not mean that it is valid. If there is substantial evidence to support your claims that a mortgage was never agreed then a court may consider the charge invalid.
Registered charges on the same title are to be taken to rank as between themselves in the order shown in the register. The title register shows that the Royal Bank of Scotland’s charge ranks ahead of ...........charge. ..........charge is a security interest to secure the performance of your contractual obligation to repay the loan. If the charge is determined to be valid, then .......can enforce the loan against the security i.e. the cottage. If the court were asked to consider allowing ..........to sell the cottage, the court should be asked the consider:
The amount of equity in the cottage
The cottage was paid for by the Royal Bank of Scotland mortgage and the monies provided by Mr ....... You advised that you did not think that the cottage was worth as much as it was when you bought it. Therefore if the cottage was sold, and Royal Bank of Scotland were repaid (they are entitled to be paid first) then the amount remaining may not be enough to repay Mr ......... The court should not be asked to do something that would be futile.
Dependents
It is unfair on other people who live with you. This may include children, or other dependents, who would be severely affected if your cottage is to be sold.

Very confusing for me but I think it's saying if I can prove all 4 requirements were not met, then a court can not enforcethe order. Can I prove this by showing the inconsistencies on Mr ....... means point 3 & 4 have not been met?

Thanks Again