TSB part interest part repayment Mortgage Proceedings issued for repossession

[moatmeister]

I have mortgage originally with C&G, now moved to TSB in two sub accounts on the same account number. Current property value at least £120k

1) Original amount with cancelled endowment, so now interest only of £25000, term expired 2012. Negotiated a further 12 month extension now expired.

2) Further advance in the mid 1990s on a repayment basis, £30000 still outstanding with 16 years left to run on the mortgage
So mortgage is in two parts with the same lender, now totaling £55000, (originally £65000.) All monthly payments up to date with good payment history. but original capital amount of £25K needs repaying.

Taken from the court papers, they have issued court action for repossession based on "other breach of the mortgage", and are asking for possession on the following grounds:-

"The defendant is in breach of the terms by failing to repay all the sums due to the claimant by the end of the term of the loan secured by the mortgage granted in 1987 which should have been repaid by 2012. As the term of the loan has expired the claimant requires full payment of the loan of £55000"

They are insisting I do a "mortgage review" which will involve a credit search and score which I would rather avoid.


I have had a slightly head down approach to this previously due to other personal issues but are in discussions with the TSB and their solicitors now. I had hoped to get it resolved before it came to this.

I would like to get this court action delayed or stopped as I will not be in the country on the hearing date without a massive rearrangement of personal plans but would hate it to be found in their favour by non attendance. They will not entertain delaying the hearing or negotiating out of court.

I accept I owe the £25K (and will have this amount available for them within the next 6-12 months) but are they correct to claim for repossession for the full £55k when £30k is still being paid within the terms of the mortgage. ie can they cancel the whole mortgage agreement?

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

I have mortgage originally with C&G, now moved to TSB in two sub accounts on the same account number. Current property value at least £120k

1) Original amount with cancelled endowment, so now interest only of £25000, term expired 2012. Negotiated a further 12 month extension now expired.

2) Further advance in the mid 1990s on a repayment basis, £30000 still outstanding with 16 years left to run on the mortgage
So mortgage is in two parts with the same lender, now totaling £55000, (originally £65000.) All monthly payments up to date with good payment history. but original capital amount of £25K needs repaying.

Taken from the court papers, they have issued court action for repossession based on "other breach of the mortgage", and are asking for possession on the following grounds:-

"The defendant is in breach of the terms by failing to repay all the sums due to the claimant by the end of the term of the loan secured by the mortgage granted in 1987 which should have been repaid by 2012. As the term of the loan has expired the claimant requires full payment of the loan of £55000"

They are insisting I do a "mortgage review" which will involve a credit search and score which I would rather avoid.


I have had a slightly head down approach to this previously due to other personal issues but are in discussions with the TSB and their solicitors now. I had hoped to get it resolved before it came to this.

I would like to get this court action delayed or stopped as I will not be in the country on the hearing date without a massive rearrangement of personal plans but would hate it to be found in their favour by non attendance. They will not entertain delaying the hearing or negotiating out of court.

I accept I owe the £25K (and will have this amount available for them within the next 6-12 months) but are they correct to claim for repossession for the full £55k when £30k is still being paid within the terms of the mortgage. ie can they cancel the whole mortgage agreement?

Why have you left it so long before you came here to tell us? What date is the court hearing date for the bank's order of possession?

The only thing you should have to pay is the arrears and not the full amount: s.36, Administration of Justice Act 1970 (as amended); and you can delay a possession for a long period as the starting point is the mortgage's entire term, providing you can show that you can make the payments in that time: Cheltenham and Gloucester Building Society v Norgan (1996). I do not know if you have left yourself long enough though to submit a defence though. Please respond urgently

If you do not submit a defence the bank will either get a possession order or a suspended possession. The first speaks for itself but the second is bad as any slight problem means they can evict you without another court order.

[moatmeister]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

Thanks for your reply

Yes I have left things late, but hopefully not too late. Been so stressed with this and other things completely forgot about the forum til this mornng. Court date is 5th Jan. Timed perfectly to make it as difficult as possible!

I am aware of the usual 14 day period for filing a defence but in the paperwork that came from the court is a few notes specifically relating to this situation entitled " Notes for the defendant - Mortgaged Residential Premises" that says "although you should normally fill in the defence form within 14 days the court will accept your defence at any time before, or even at, the hearing" so have not yet done anything but intend to file something early this week.

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

do you have any idea about property law affecting mortgages?

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

Thanks for your reply

Yes I have left things late, but hopefully not too late. Been so stressed with this and other things completely forgot about the forum til this mornng. Court date is 5th Jan. Timed perfectly to make it as difficult as possible!

I am aware of the usual 14 day period for filing a defence but in the paperwork that came from the court is a few notes specifically relating to this situation entitled " Notes for the defendant - Mortgaged Residential Premises" that says "although you should normally fill in the defence form within 14 days the court will accept your defence at any time before, or even at, the hearing" so have not yet done anything but intend to file something early this week.

Do you have lawyer representing you? PS if you don't quote me, i have no idea if you have posted here too.

[moatmeister]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

Do you have lawyer representing you? PS if you don't quote me, i have no idea if you have posted here too.

Do you mean like that above??

I dont have any real idea about property law, only the little bits I have read recently. I understand this is serious. I know I wasted a full day before Christmas chasing a recommended firm of solicitors who when someone did ring back seemed completely disinterested, so no not yet. However I intend to be on the phone again this morning if it is thought necessary. I am also happy to defend myself if it is a question of "common sense", ie the summons has been issued incorrectly or something like that , less so if it is more legally involved. I need to decide today whether to postpone my trip which is still just possible and I am prepared to do if needed.

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

If you are available today I will give you some relevant key ideas.

In land law, ie property law there are legal owners and equitable owners, so the bank/ mortgagee (TSB) normally holds the legal interest (ie legal ownership as mortgagee) as it is likely to possess the deeds to your property. Is this right in your case? If so, this would be classed as a legal mortgage (mortgage with deed) with its security your home itself. If TSB's assumed legal mortgage is registered on your property's register (land register) it means it's a legal mortgage entirely, ie is legally binding. If the legal mortgage is not registered it is only an equitable mortgage type which means it's not as secure. The bank/ mortgagee under law has the right to possess your home in which case it normally requires a hearing for possession order. So this is TSB's position. However, if you were to rely on equity you could defeat TSB's attempt to gain a possession order with its view to sell the property. I'll explain your rights as mortgagor in the next post; I just wanted to give you a basic background.

I need to understand all issue of threats or possession orders. Try and write concisely as we are limited by way of time. If I were you I would put off non urgent trips as property should be your priority. If TSB suspect you're remotely prioritising a trip against your property rights the court is more likely to grant it outright possession. It's up to you.

[moatmeister]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

If you are available today I will give you some relevant key ideas.

Yes I am here and listening!!!

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

Your right in mortgage law is available via 'an equitable right to redemption, which means the courts permit you to pay your mortgage without the TSB taking possession. So, where TSB (who presumably hold a legal interest) attempt a possession order via the courts, at this point equity steps in to aid you.

Where one party has the legal interest the other automatically holds the equitable interest. When the borrower (mortgagor) first take out a mortgage for the first few months, perhaps 6 months, he/ she holds the legal right to redemption (pay your mortgage off) up to the legal date (ie expiry of said months). TSB as mortgagee (lender) held the equitable interest during the initial period. After the legal date passes (ie said 3-6 months), your legal interest changed to an equitable interest and the TSB's equitable interest changed to a legal interest. Keep up so far?

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

So now TSB has held the legal interest for many years which powers are taking possession usually via a court order. However, your equitable rights kicked in at the same time, which now avails the judge's discretion under section 36, Administration of Justice Act 1970 (as amended by section 8, 1973 Act) to delay possession for a reasonable period. The reasonable period depends on the mortgage term and whether the borrow can afford to pay it off under equity rules. Under common law however the reasonable period is said to be 28 days: case Caunt (l960s case). So which one do you think the TSB prefers? They will regard your reasonable period limited to Caunt's 28 days, but your counter-argument is based based on Norgan v Cheltenham and Gloucester (1996), which is where the reasonable period is several years as much as the entire mortgage term if it were feasible for you to pay it off.

[moatmeister]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

If you are available today I will give you some relevant key ideas

I have downloaded the land registry title. I think the relevant bit is as follows

C: Charges RegisterThis register contains any charges and other mattersthat affect the land.
1 A Conveyance of the land in this title dated 18 June 1930 made between(1) xxxxxxx (Vendor) and (2) xxxxxxx (Purchaser)contains covenants details of which are set out in the schedule ofrestrictive covenants hereto.
2 (13.11.1987) REGISTERED CHARGE dated 1 May 1987 to secure the moneysincluding the further advances therein mentioned.
3 (24.07.2013) Proprietor: TSB BANK PLC (Scot. Co. Regn. No. SC095237) ofMortgages, P.O. Box 2230, Barnett Way, Barnwood, Gloucester GL3 9ED.

Even if it does not apply in this case, please could you explain your phrase "However, if you were to rely on equity you could defeat TSB's attempt to gain a possession order"

I am fairly sure they have followed the pre action protocol but will post a timeline of the received correspondance. Thanks

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

The law is now that you are only responsible for the arrears to be paid during the reasonable period, perhaps 2-4 years or longer. You do not have to pay off the entire arrears in one go, no matter what the TSB say.

[Openlaw15]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

I have downloaded the land registry title. I think the relevant bit is as follows

C: Charges RegisterThis register contains any charges and other mattersthat affect the land.
1 A Conveyance of the land in this title dated 18 June 1930 made between(1) xxxxxxx (Vendor) and (2) xxxxxxx (Purchaser)contains covenants details of which are set out in the schedule ofrestrictive covenants hereto.
2 (13.11.1987) REGISTERED CHARGE dated 1 May 1987 to secure the moneysincluding the further advances therein mentioned.
3 (24.07.2013) Proprietor: TSB BANK PLC (Scot. Co. Regn. No. SC095237) ofMortgages, P.O. Box 2230, Barnett Way, Barnwood, Gloucester GL3 9ED.

Even if it does not apply in this case, please could you explain your phrase "However, if you were to rely on equity you could defeat TSB's attempt to gain a possession order"

I am fairly sure they have followed the pre action protocol but will post a timeline of the received correspondance. Thanks

I have explained what I mean by equity coming to your aid. Pre Act Protocol just means followed the rules. Your rights are based on equitable systems that the court developed over centuries in England. Are these two charges just TSB's alone? Do TSB hold the deeds to your property, if so since they're registered they have a legal interest.

[moatmeister]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

Does that then mean that the court summons has been filed incorrectly when they are quite clearly claiming the full £55k instead of the £25k and therefore could be defended as such??

[nemesis45]

Re: TSB part interest part repayment Mortgage Proceedings issued for repossession

Do you mean like that above??

I dont have any real idea about property law, only the little bits I have read recently. I understand this is serious. I know I wasted a full day before Christmas chasing a recommended firm of solicitors who when someone did ring back seemed completely disinterested, so no not yet. However I intend to be on the phone again this morning if it is thought necessary. I am also happy to defend myself if it is a question of "common sense", ie the summons has been issued incorrectly or something like that , less so if it is more legally involved. I need to decide today whether to postpone my trip which is still just possible and I am prepared to do if needed.

Moatmeister,
Personally I think you should be seeking qualified advice locally!

nem