All monies on clause mortgages

[Jester]

Re: All monies on clause mortgages

Just a quick note as I am too upset to talk much about this at the moment.

But, we lost. Judge was not in the slightest bit interested in hearing any arguments from my side and simply granted the repossession order to RBS. We have to get out of the house in 56 days !!

[Amethyst]

Re: All monies on clause mortgages

****er.

:hug: Jest - you tried your best the system let you down.

[Budgie]

Re: All monies on clause mortgages

Hi Jester,

Take some time and get yourself sorted out.

When you are ready come back on here and we will all help to try and see if there is anyway to sort out this situation.

I am interested in knowing what the RBS representative had to say and also how your Solicitor handled things.

It all sounds a bit strange to me.
It is not right that the Judge did not appear to want to listen to your arguments.

Come back when you are ready Jester, we will be here for you.

Regards Budgie

[scottishlass]

Re: All monies on clause mortgages

:hug:

I am so sorry to hear that Jester, you did your best, don't ever forget that.

[Curlyben]

Re: All monies on clause mortgages

FECKERS !!!

Sounds like the judge had already rubber stamped this.
Can you possibly appeal this decision ?

[WendyB]

Re: All monies on clause mortgages

You did your best Jester. We are all here when you're ready to talk.

Take care

Wendy xxx

[TUTTSI]

Re: All monies on clause mortgages

Jester, I am gobsmacked that you were not given a fair hearing.

I am sure someone will be able to advise what the next step is, maybe there is grounds for appeal!

<<<<<<<<<<<<<<<<<hugs>>>>>>>>>>>>>>>>>>>>>>>>>>>>> >

[Sapphire]

Re: All monies on clause mortgages

Oh Jester hun I am so sorry to hear your news, I am sure you won't give up the fight though. Take a day off and then come back here and continue the fight.
We are all with you hun.

(((((((((((((((((Hugs))))))))))))))))

[scoobydoo]

Re: All monies on clause mortgages

Jester

really sorry to hear your news.

dont know what to say really, it just does not seem to make sense .

[Jester]

Re: All monies on clause mortgages

Thank-you everyone for the messages of support, both in private and publicly. It really is refreshing and inspiring to know that so many are rooting for me from my corner of this boxing ring that is UK Law. While many think me to be a hard-hearted and emotionally cold person, know that you many messages of support has brought tears to the eyes of both me and and mt wife. She's read everything too. I have to admit that I was even reading some of the conversation in the chat room about us. Just couldn't bring myself to speak there today. But know that it really moved us both to see the support we have read today.

I've had far too many glasses of wine to really think about this tonight (we are on our 6th bottle of red wine at the moment). I'll probably have a seriously sore head tomorrow, but I will also awake with a new resolve.

This battle is far from over and RBS are going have a shock with how hard I will push them. I've got nothing to lose now and they are going to see how ferocious a cornered tiger really is

This is just round one. Round Two is when the blood will flow...and will be theirs not mine !!

[Jester]

Re: All monies on clause mortgages

The Court Hearing: What Happened ....

Arrived at Swansea County Court at 11.50am, 40 minutes early for the hearing.

Our Solicitor (Legal Aid) arrived at the court at 12.10pm and took us both into a side room for a briefing. He was a very young guy and it quickly became obvious that he was an office junior.

He went through the presentation I had given them (as shown above). Straight away he indicated to us that he did not believe we had any chance in our case, but stated that he would represent us on the terms that we had outlined in our presentation. He said he did feel comfortable in using the KcKinsey case reference we had included in our presentation as he believed it did not help our case.

He also said he did not agree on our assertion that the 'all-monies' mortgage could be challenged in terms of breaching the UTCCR 1999, but if that was what we wished to do then he would do it.

At this point we both realised we were in serious trouble.

Went back to Court No. 5 to await being called for our case. When we got there, we were met by the RBS Solicitor. The two solicitors had a brief chat and we were informed that the RBS Solicitor was not there to negotiate. His instructions from RBS was that they were seeking repossession and no compromise would be offered whatsoever.

Called into court.

Judge acknowledged both the RBS Solicitor, our solicitor and myself on entering. He did not acknowledge my wife's presence at all.

RBS Solicitor stated his intention that his 'client' were seeking repossession due to arrears on the mortgage and that under the 'all-monies' clause they had the right to gain repossession.

The Judge asked the RBS Solicitor when we had last made a payment to the mortgage. The RBS Solicitor responded that this information was 'unknown'. The Judge did not press him on this.

(Now bear in mind we do have written confirmation of a payment plan covering July, August, September and we have kept to that. Our last full payment was in May. In both June and July we have kept to the interest-only payment schedule as outlined to us by RBS Group themselves). We were not allowed to challenge the RBS Solicitor on this.

Judge turned to our Solicitor for a response.

Our Solicitor was clearly highly nervous and unsure of himself in these surroundings. He stuttered and stammered his speech to the Judge (RBS Solicitor must have been rubbing his hands with glee).

He started stating to the Judge that (against the advice of his firm of Solicitors), we wished to challenge the claim of RBS. First of all based on the UTCCR of 1999. This was immediately rebuffed by the Judge. Also, the RBS Solicitor started quoting Habib Bank Vs Tailor as his example of established case law on the matter of 'all-monies' mortgages which he claimed backed RBS claims.

The Judge cut him short saying he ' is fully aware of that case law'.

My solicitor then moved on to start using some of the presentation I had given him. The Judge immediately stopped him.

The Judge's response was 'that he considers it unprofessional for our solicitor to come into the court and "ambush" the RBS Solicitor with a defence that he was not expecting'. (what the hell does the Judge expect one to do when one's home is being threatened ?)

(I Found this to be a staggering statement considering that 'ambush' us was exactly what RBS had done. On one hand they had agreed a temporary payment plan with us, whilst on the other hand they served Court Papers on us withing two days of the written confirmation arriving of our agreed payment plan. That took us completely by surprise as we had no idea they were going to seek repossession. If that is not an ambush then what is ?).

The Judge went on to state that he 'considered it a waste of court time to pursue this matter any further as Case Law is already established on this matter. Repossession is granted.'

He then asked the RBS Solicitor if they were minded to look for costs. The RBS Solicitor responded that no costs would be pursued. The RBS Solicitor did state that RBS wanted posssession of our property within 28 days. The Judge denied this and said that the standard 56 days would apply.

'Case dimissed !!'.

That was it. He thanked both of the solicitors present and completely ignored the presence of my wife and I. Then sent us all out. Our lives treated as if it was something he had just watched/read with disinterest in a book or film.

My wife immediately left the building in tears.

I stayed behind to talk to our solicitor. He told me that it went as he expected. I protested that I did not think that was a fair hearing as our argument was not allowed to be heard. His response was that was down to the Judge's discretion and that there was nothing he could do about it. He stated that I do have a right of appeal, but did not know whether any such appeal would be covered by Legal Aid, but doubted it. He said he would consult with the solicitor I had originally met two weeks previous and get back to us in writing within the next few days. I did question to the Solicitor whether the Judge lived on the same planet as the rest of us and was just met with a nervous smile.

So that was that. We suddenly found ourselves homeless. We had been in the courtroom for little more than 3 minutes, were ignored by the Judge and spoken about as if we were not present. It was a humiliating and undignified experience.

I still can't believe how unfeeling and callous the attitude of the Judge was. How can such people be allowed to make judgements on people's lives in such a way ?

I'm sure if it had been HIS home on the line, he would have had a different attitude. But we are just the little people and we do not matter.

I was very dissatisfied with the performance of our solicitors and fully intend to make a formal complaint about their conduct to whichever governing body Solicitors are responsible to. They were recommended to us by the court itself and also by Shelter Cymru. But in my opinion they made very little effort to represent us properly. I only had one meeting with them prior to the court hearing. I had to constantly chase them by telephone for what was happening and then when the court case came up we were given a junior from their office. In fairness to the Junior, he tried his best and did what he had been instructed by his office and at least did try to represent us in the way that we asked. But the fact remains that he was totally out of his depth and it was unfair on both him and us that he should have been placed in the position.

Both my wife and I have been left with the distinct impression that we were treated by both the court AND our own solicitors as 3rd class citizens because we were on Legal Aid.

Yes, we are both in total shock at the matter that we were so digustingly dismissed as if we were '**** that came in on the bottom of their shoes'.

However, this is where the battle begins. I am not going to use that firm of Solicitors again whether they offer further servcies under Legal Aid or not. I could have made a far better defence had I conducted it myself (and I am no solicitor). Now RBS are about to find out that they are not dealing with some 'detritus' that they can just kick and roll over.

Far from it. I intend to be the biggest pain-in-the-ass that they have ever encountered. It starts today with a formal complaint to my local MP about the serious imbalance that exists in the law. The law is meant to be fair and impartial to all. It clearly is not. It is more of a case that if you have money then you have a chance. If you are impoverished then you do not deserve a chance. That cannot be right.

Politicians make the law, Judges apply the law (Banks bend the law). It may not save my situation, but If I can get things changed so that Banks cannot ride roughshod over consumers in this way in the future then it will be worth it.

Bear in mind, I was but one month in arrears. I have been paying RBS £1170 for the last 2 and a half years for the 'privilege' of owning a house that they can simply take away from us at a whim. If that can act this way, then surely there is nothing stopping them doing this to repossess a house that maybe one has been paying a mortgage on for twenty years. This ruling means that one might be just 4 months away from completing a mortgage when through no fault of their own they find themselves unable to make one payment. The Bank then seize the home back on that basis. Surely this cannot be right.

We are the little people. We do not have the resources that the Banks can control, but we do have rights. Or do we ?

Time to fight back methinks.

Thanks for listening to my rambling here. The gloves are now off !!
------------------------------- merged -------------------------------
One further quick thought, do we have grounds for suing the Independant Financial Advisor who sold us the mortgage in the first place as not at any time were we informed that we were signing for an 'all-monies' mortgage ?

[calamity jane]

Re: All monies on clause mortgages

Jester, I’ve just read your post and think it’s disgraceful that you weren’t given the chance of a fair hearing. I don’t know how legal aid works but it seems to me that the solicitors sent the “junior” so he could gain some experience, never mind that the fact that you needed someone with the expertise and confidence to present your case properly. And then to get a judge who didn’t want to hear your side must have been devastating for you both.
I'm so glad you're not giving up the fight. We are all behind you.

[scoobydoo]

Re: All monies on clause mortgages

I agree with you Jester

I would be on to the FOS - FSA and the banking codes standards boards
EXC may have some contacts we can try

Also what about some publicity in say money mail - see if there is anyone else who can help you - Even if it warns other people about this all monies clause it will maybe help others.

The only thing that I SLIGHTLY agree with by the judge is that your solicitor should have presented his arguments to the other side before the hearing - however the judge should have then maybe allowed for another hearing if he had had any sympathy.

so much for Gordons statement that the banks should have more sympathy in these difficult times.

I could understand the decision if he really thought that you were never going to be able to keep up the payments - but if it is all down to a clause you were not aware of then this is a real travesty.

I know I dont have to tell you this as you are obviously very articulate and on the ball- but for anyone else in this situation - it is vital that you keep full and comprehensive records of all correpondence of the next stage of proceedings.

[Amethyst]

Re: All monies on clause mortgages

Jest

When you get chance could you post up the all-monies clauses in your mortgage agreements pls.

also how much is the actual outstanding arrears on the mortgage.

Ta xxxxxx



'ALL MONIES' and 'ALL OBLIGATIONS'
In general the borrower will be liable to repay the principal sum borrowed together with interest. But in some mortgage or charge agreements the lender inserts an 'all monies' clause; sometimes this is referred to as an 'all moneys' clause. This clause seeks to cause the security to cover not merely the principal sum and interest, but also any other amounts which the court will allow the mortgagee to add into the principal.
Thus an 'all monies' clause expands the sum due by the mortgagor to the mortgagee by adding into the principal any money expended by the mortgagee in relation to the mortgage. In most cases, the borrower will have no control over this expenditure by the mortgagee and often will not know it has happened, or is possible. The purpose of this clause is described:
From the commercial viewpoint, ... to provide protection to a mortgagee in respect of all moneys which the mortgagee has paid, or becomes liable to pay, for or on account of the mortgagor. Smith v ANZ Banking Group [1995] CA 40392/95.
Clearly it is a clause for the benefit of the mortgagee.
The mortgagor might be faced with paying sums which he considers are inappropriate to be included in the amount owing. He will then have to approach a court to decide the matter. Courts are not unified on the effect of such clauses. Some courts say that if the mortgage is between commercial parties there is no need for the court to intervene because these parties are of equal bargaining power. This means the court interprets the words in their ordinary meaning without considering questions of 'fairness, unequal bargaining power or sympathy for the borrowers' vulnerability': Rudd and Son Ltd: Re Fosters and Rudd Limited [1986] 2 BCC 98.
The other interpretation is often used where the mortgagor is not a commercial entity. It maintains that the clause should be 'read down' to cover only those sums which would ordinarily be in the mind of the mortgagor as part of the mortgage debt. Thus the intention of the parties is relevant in considering the operation of the clause. If the court finds that the mortgage was to cover only a pre-existing debt created at the time of the mortgage, then no other sums will be included in the debt.
The 'all obligations' clause is much broader because it refers not only to adding sums to the principal sum, but also to adding other obligations. For example, the lender has not secured the debt by a mortgage or charge. The borrower owes money to a third party who has secured the debt by a mortgage over the borrower's land. The lender can buy the third party's mortgage, add the unsecured debt to the amount owing under the mortgage, and combine the two to expand the amount due but more importantly to give himself a secured interest.






All Monies charge - mortgage? - The Consumer Forums
(not much on there)

15. The mortgagor undertakes that he/she/they will bear all expenses such as stamp duty, advocate fees, registration charges and other incidental expenses in connection with this deed.
16. The mortgagor agrees that if he/she/they commits default in making the payments of installment then the mortgagee shall be entitled to call back the entire amount of balance with interest then due and in that case the mortgagor will have to make the payment forewith and will not be entitled to claim the benefit of concession of installment or the excuse the payment of additional interest.
17. It is agreed by and between the parties that the said property/properties is to stand as a continuing security for the credit limit/loan sanctioned by the mortgagee to the borrower/mortgagor and it will be enforceable for all monies which may at any time become due and owing by the borrower/mortgagor to the mortgageee/lender under the said credit account and/or all other accounts, was after expiry of the period.

[Tempty]

Re: All monies on clause mortgages

I can only mirror what others have said to you already Jester

I can only imagine how you and your wife must have felt yesterday .... I (and many others on here) felt it as a devastating blow. I'm so glad you have woken in full fighting mode today .... you know that everything that can be done will be done to help out. I myself my not be able to give any legal advice but I'm rooting for you both hun ... and if there is anything other then just offer support that I can do ..... I'm there.
(((((((((HUGS)))))))))

Tempty xx