All monies on clause mortgages

[Jester]

Re: All monies on clause mortgages

Ame - I don't have the documents in my possession at the moment. The Solicitor still has them. As soon as I get them back I shall scan and post them.

However, I have been reading up on these 'all-monies' mortgages and they have been described as particularly 'stealthy' as they rarely state up-front that there is an 'all-monies' charge. Many of the banks (and RBS is apparently one of them, along with HSBC and Halifax as I recall) obfuscate these details by wording them differently and scattering them throughout the contract. So much so, that many Solicitors have also apparently missed them in mortgage T & C's.

I suspect that many people out there (possibly people on this site) have an 'all-monies' mortgage and simply don't realise it until it is too late. I had no idea I held an 'all-monies' mortgage until I met my solicitor two weeks ago.

I'll try to find the website where I actually read this fact earlier this morning and post a link here. In the meantime, keep an eye out as I will post up the Mortgage T&C's when I have them back.

[Amethyst]

Re: All monies on clause mortgages

Is is this one? http://www.oneaccount.com/onev3/toa/...ing-else.shtml


It appears to be this 'ONE' type of account that have become popular in recent years that have these terms in them. If it is we need to warn people. Just trying to find all the T&C's from them.

Looks like it could be OFFSET typees too.




And btw I'm glad you are going to fight :kiss:

[Amethyst]

Re: All monies on clause mortgages

Do you have any other debts with RBS ?


(btw Australia changed their unfair consumer contract law (Uniform Consumer Credit Code (UCCC)) to stamp these clauses out in 1996)

also a little bit that concerns me about them is this retention of title which seems to go hand in hand with all-monies. without seeing the contract impossible really to know so will shut up for now. lol.

[Jester]

Re: All monies on clause mortgages

No it wasn't that web-site. I really should have bookmakred it as I am having trouble finding it again now.

However, it would seem that ALL mortgages offered by the RBS Group appear be 'all-monies' mortgages. So if any of you have a mortgage through RBS (so that will include First Active, One Account or even Nat West mortgages) then start checking whether that clause is in your mortgage. Best you know now before you find out too late like I did !!

Is is this one? http://www.oneaccount.com/onev3/toa/...ing-else.shtml


It appears to be this 'ONE' type of account that have become popular in recent years that have these terms in them. If it is we need to warn people. Just trying to find all the T&C's from them.

Looks like it could be OFFSET typees too.




And btw I'm glad you are going to fight :kiss:

------------------------------- merged -------------------------------

Do you have any other debts with RBS ?


(btw Australia changed their unfair consumer contract law (Uniform Consumer Credit Code (UCCC)) to stamp these clauses out in 1996)

also a little bit that concerns me about them is this retention of title which seems to go hand in hand with all-monies. without seeing the contract impossible really to know so will shut up for now. lol.

Yes I do actually. I have a Mint Card that is operated by RBS but that is in the hands of my Debt Management Company. I don't think RBS have realised this though (and I aint gonna tell them) as they have agreed payments with the DMC and all is going along nicely there.

Interestingly, I did find this hidden in a Law Society Paper that is on the internet in regard to what is happening in Ireland. So the Law Society is well aware of these things and is concerned how they are being applied.

The Non-Contentious Business Committee
of the Law Society has reviewed the
practices of the four major banks in
Northern Ireland in relation to their
standard mortgage documentation used in
residential conveyancing. Whereas “All
Monies” clauses are inevitably necessary
in commercial transactions, the Committee
has been concerned about the use of these
clauses in residential transactions without
the borrowers being made fully aware of
their implications.
The Committee wrote to the four banks
requesting both a copy of the Standard
Mortgage Deed used by each in residential
conveyancing and a statement of their
attitude generally to All Monies clauses.
Both the Bank of Ireland and Ulster Bank
confirmed that they did not use All
Monies clauses in their standard
residential mortgage documentation.
After some correspondence with the First
Trust Bank it confirmed that these clauses
have been withdrawn.
The attitude of the Northern Bank has
been somewhat different and as members
of the profession are no doubt aware that
bank still relies on an All Monies clause in
their residential Mortgage Deed. The
actual words are “....all sums and
liabilities of whatever nature now or in the
future due owing or incurred by me/us to
the bank in any way whether a loan or
jointly with anyone else, including
my/our liability as guarantor and even if
the liability may depend upon events
which may or may not happen.....”
There is a heavy onus on members of the
profession both to adequately warn
Mortgagors about the ramifications of
signing such a clause and to keep
adequate records of having fully advised
clients on the implications thereof. In
correspondence the Northern Bank have
taken the position that if any solicitors
attempted to remove by negotiation the
All Monies clause from the Bank’s
mortgage, then that obviously was not in
the best interests of the Bank and the
solicitor was therefore faced with a clear
conflict of interest. In those circumstances
the Bank suggested that in order for the
Bank then to receive best advice
“......instructions are rescinded by the
Bank from the external solicitor and the inhouse
solicitor’s office acts on the Bank’s
behalf in connection with the matter...”
Where this situation arises the Committee
is of the view that the solicitor’s first duty
lies with the mortgagor client and
accordingly instructions from the
Northern Bank should be declined at that
point. The Bank should so be informed.
Having written to the Northern Bank in
relation to this matter, the Bank has
indicated to the Society that at some stage
in the future it is likely that the All Monies
clauses will be discontinued from
domestic property. However to date the
Bank has not informed us of a definite
date for so doing due to “.....staff training
which is required...” and “.....requirements
for IT amendments...”
Pending the promised change of policy by
Northern Bank the simple rule with
regard to that bank’s mortgages should be
“Look after the interests of the client and
let the Bank look after itself!”

[WendyB]

Re: All monies on clause mortgages

My mortgage is with Natwest, I'm going to have to check it out, will let you know if I can find the T and Cs

[Amethyst]

Re: All monies on clause mortgages

Habib Bank –v- Tailor [1982]

Section 8 AJA 1973 does not apply to all-monies (or repayable on demand) mortgages.

okay so I think that leaves you - the misselling of the mortgage - very difficult to prove and not sure how far it would get you with regards to keeping the house --- or the unfair term of contract.

I think the fact Australia has squished those terms in mortgage contracts could help - and might be worth looking at why and how that came to pass.

Because of the type of mortgage and this all monies clause the repayment etc part fails instantly because they can take immediate possession...the judge has given you a concession in the 56 days as opposed to 28 which is good.

Think you know all this already am just putting down anything that can help start building a case for you to appeal.



and if NI are looking at them disfavourably too that could help. with the other case law we already have in England.....

[Amethyst]

Re: All monies on clause mortgages

Yes I do actually. I have a Mint Card that is operated by RBS but that is in the hands of my Debt Management Company. I don't think RBS have realised this though (and I aint gonna tell them) as they have agreed payments with the DMC and all is going along nicely there.

Okay their stupidity then because the all monies actually gives them full secured rights over that debt as well. hmmm actually if you do lose the house (sorrry) then might be worth nudging them on the mint debt and get that included in the repo, because you are so helpful and kind. and get that cleared off same time.

Hopefully we wont get to that though eh :hug:

[Amethyst]

Re: All monies on clause mortgages

anyone not familiar with AJA section 8 is this bit (basically the right to pay off the arrears over reasonable time to keep house) all monies clauses effectively removes this right.

8 Extension of powers of court in action by mortgagee of dwelling-house

(1)Where by a mortgage of land which consists of or includes a dwelling-house, or by any agreement between the mortgage under such a mortgage and the mortgagor, the mortgagor is entitled or is to be permitted to pay the principal sum secured by instalments or otherwise to defer payment of it in whole or in part, but provision is also made for earlier payment in the event of any default by the mortgagor or of a demand by the mortgagee or otherwise, then for purposes of section 36 of the M1Administration of Justice Act 1970 (under which a court has power to delay giving a mortgagee possession of the mortgaged property so as to allow the mortgagor a reasonable time to pay any sums due under the mortgage) a court may treat as due under the mortgage on account of the principal sum secured and of interest on it only such amounts as the mortgagor would have expected to be required to pay if there had been no such provision for earlier payment.
(2)A court shall not exercise by virtue of subsection (1) above the powers conferred by section 36 of the M2Administration of Justice Act 1970 unless it appears to the court not only that the mortgagor is likely to be able within a reasonable period to pay any amounts regarded (in accordance with subsection (1) above) as due on account of the principal sum secured, together with the interest on those amounts, but also that he is likely to be able by the end of that period to pay any further amounts that he would have expected to be required to pay by then on account of that sum and of interest on it if there had been no such provision as is referred to in subsection (1) above for earlier payment.
(3)Where subsection (1) above would apply to an action in which a mortgagee only claimed possession of the mortgaged property, and the mortgagee brings an action for foreclosure (with or without also claiming possession of the property), then section 36 of the Administration of Justice Act 1970 together with subsections (1) and (2) above shall apply as they would apply if it were an action in which the mortgagee only claimed possession of the mortgaged property, except that—
(a)section 36(2)(b) shall apply only in relation to any claim for possession; and
(b)section 36(5) shall not apply.
(4)For purposes of this section the expressions “dwelling-house”, “mortgage”, “mortgagee” and “mortgagor” shall be construed in the same way as for the purposes of Part IV of the Administration of Justice Act 1970.
(5)This section shall have effect in relation to an action begun before the date on which this section comes into force if before that date judgment has not been given, nor an order made, in that action for delivery of possession of the mortgaged property and, where it is a question of subsection (3) above, an order nisi for foreclosure has not been made in that action.
(6)In the application of this section to Northern Ireland, subsection (3) shall be omitted.

[Jester]

Re: All monies on clause mortgages

Cet has actually found one involving RBS themselves that he sent to me in a PM, so there are some established case laws out there, in addition to the ones I wanted outlined in court yesterday (Grimes v Bank Of Scotland being one).

Scooby - I fully intend writing to the FSA and FOS about this as I believe their actions do indeed run contrary to the Banking Code of Conduct, something that Ben also picked up on.

I don't see how it is ethical that they can agree a payment plan with me in regard to the mortgage, only to then issue a court order for repossession. That is just one of the ways I think they have acted irresponsibly. Will be interesting to see what the FSA and FOS make of this.

Once I have found all the paperwork, I also want to check EXACTLY what I was told by the IFA that sold me this mortgage. I do not recall ever being told that it was an 'all-monies' mortgage at any time and therefore I believe I have grounds for believing I was mis-sold this mortgage. The irony is that my fixed rate deal expired in April and had I still been in employment I would probably have remortgaged again (and quite possibly not been in the clutches of RBS).

I'll certainly never buy and RBS product ever again after this.

[Amethyst]

Re: All monies on clause mortgages

Royal Bank of Scotland –v- Elmes April [1998]

that one.

more useful on the thread than pm.

Royal Bank of Scotland –v- Elmes April 1998 Legal Action 11, Clerkenwell County Court
Issue – suspended possession order on payments less than current instalments
A district judge suspended a warrant for possession for three months on terms that the defendant pay £250 one month and thereafter £500 per month for two months, thereafter the case would further considered. The defendant had good prospect of obtaining employment within the period. The lender appealed in the basis the court had no power to suspend on terms of payment less than current instalments.
Assistant Recorder Thomas Q.C dismissed the appeal, and held that s.36 of the Administration of Justice Act 1970 enables the court to impose any terms about payment so long as the borrower would, within a reasonable period, be able to clear the arrears and pay the current instalments.

Was that an all monies mortgage ? I assume if so then RBS would have argued 8 and thus 36 AJA didnt apply.?

[calamity jane]

Re: All monies on clause mortgages

Ame - I don't have the documents in my possession at the moment. The Solicitor still has them. As soon as I get them back I shall scan and post them.

However, I have been reading up on these 'all-monies' mortgages and they have been described as particularly 'stealthy' as they rarely state up-front that there is an 'all-monies' charge. Many of the banks (and RBS is apparently one of them, along with HSBC and Halifax as I recall) obfuscate these details by wording them differently and scattering them throughout the contract. So much so, that many Solicitors have also apparently missed them in mortgage T & C's.

I suspect that many people out there (possibly people on this site) have an 'all-monies' mortgage and simply don't realise it until it is too late. I had no idea I held an 'all-monies' mortgage until I met my solicitor two weeks ago.

I'll try to find the website where I actually read this fact earlier this morning and post a link here. In the meantime, keep an eye out as I will post up the Mortgage T&C's when I have them back.

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.
Iwas also searching and foud this;
http://www.investorsedgefinance.com.au/assets

[Amethyst]

Re: All monies on clause mortgages

Australia seem to be on top of it all. Not sure but they also picked up on bank penalty clauses pretty early too - think i read report dated 1997 from over there. Seems to take a while to filter over here, am sure we can use their methods of getting things sorted here too.


This bit is rather concerning

Investor buys an investment property at the top of the market (late 2003) Months later, its value has dropped by more than 20%. The bank could invoke the clause under “a material adverse change in circumstances” and demand repayment of loans.

[Jester]

Re: All monies on clause mortgages

Yes, that the exact link I had been reading around 7am today.

Thanks Jane

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.
Iwas also searching and foud this;
http://www.investorsedgefinance.com.au/assets

[Jester]

Re: All monies on clause mortgages

I feel a campaign coming on. Who fancies going on TV as the frontman/woman to get this insidious clause made illegal ?

Australia seem to be on top of it all. Not sure but they also picked up on bank penalty clauses pretty early too - think i read report dated 1997 from over there. Seems to take a while to filter over here, am sure we can use their methods of getting things sorted here too.


This bit is rather concerning

[Amethyst]

Re: All monies on clause mortgages

Hows your wig ?

Seriously though - I do think we can build a good case for your case in particular - without a shoddy legal aid solicitor. I also think with reposessions on the rise and the banks being happier to go to repo then people with these types of mortgages are at risk and need to be aware that the standard defence to repo (ie pay arrears off over a period) just won't work with those type of contracts.

We need to look at the actual implications of said contracts, find out exactly how wide spread they are, also a list of which mortgages will contain the clause in it and get people to have a good look at their mortgage contracts. Basically they seem to mean if you have a unrelated loan but with the same lender (for example your mint card) and you default payments on that - they can reposess your house. Thus far i dont think these clauses have been instigated quite that viciously but they could be, and if the banks start scrabbling around then i don't think they will hesitate too much on social responsibility.

So yep I sense a bit of campaign coming on too. Lots of research needed.


Not sure what advice we could give to people with these mortgage, remortgaging is expensive and in current climate not really that easy, so i guess moving other stuff away from that provider, and making extra doubly sure they dont fall into any arrears. Easier said than done.

And if you can fight it and win, and others have already, we have some kind of case profile built up we can start looking at pressure on the regulators.