All monies on clause mortgages

[Jester]

Re: All monies on clause mortgages

Scooby - Yes that's a valid point. However, it should also be noted that at no time did the Judge ask me if I was able to make the payments. He questioned RBS Solicitor on my payment record, but the RBS Solicitor admitted that he did not know this information. If he had done his homework (or I had been allowed to reply by the Judge) then they would have known that I have kept to the repayment schedule in both June and July. Surely, this proves that whether I could afford it or not, I made the payments and kept to the agreement - which is more than RBS did !!

[TUTTSI]

Re: All monies on clause mortgages

This is the Norgan case - for reference. It does say this was for an unregulated mortgage but the same principles would be applied on any type of regulated agreement secured on land.

http://www.creditlaw.co.uk/Cases/cheltenham.htm

[Jester]

Re: All monies on clause mortgages

These are the First Active Mortgage Terms & Conditions at the time I took the mortgage out in 2005.

I hope the attachments work !!

[Jester]

Re: All monies on clause mortgages

...and the rest of the pages !!

[Amethyst]

Re: All monies on clause mortgages

Here Jest xxx Estoppel - Wikipedia, the free encyclopedia

[Amethyst]

Re: All monies on clause mortgages

I cant get page 2 to open (first text page) rest are fine.


http://www.investorsedgefinance.com.au/assets

The difficulty is its secrecy, because you won’t find a clause called the “All Monies Mortgage Clause”. So, you have do a search and look for phrases which include words such as: ‘trigger a general default’, ‘material adverse change in circumstances’, ‘immediate repayment in full’, ‘you will be required to prove no adverse changes exist’, ‘break of any condition of this agreement’, ‘jointly and severally liable’ and ‘…all of your estate’.

Please read the following carefully and note that all applicants must sign this application/declaration.
I/We declare that 1 I/We have disclosed all information within my/our knowledge which is relevant for an application for finance. 2 The information given in this application is
true to the best of my/our knowledge and belief. If First Active “the Company” accepts this application and loan approval is given, I/we agree that this application and
declaration shall form part of the loan contract between me/us and First Active as if all the terms and conditions, declaration and consents contained herein were incorporated
into such contract in full. 3 I am/We are 18 years of age and over. 4 I/We will pay any insurance charges necessarily incurred by the Company. 5 The rate of interest will be
that which the Company is charging on the date on which the funds release are issued and subsequently the rate may vary within the terms of the mortgage. 6 I/We will not
let the property without the Company’s prior consent in writing (applicable to Home Loan only). 7 No responsibility will be accepted by the Company for the condition of the
property. 8 I/We acknowledge that by this loan application form I/we have been informed by the Company in writing that any insurance which the Company requires to be
effected or maintained on the property may be effected by me/us with any insurer in the joint names of the Company and myself/ourselves and with any agency or
intermediary of our choice. 9 I/We hereby confirm that I/we have received and read the leaflet on Mortgage Securitisation and understand that the mortgage and all the
associated rights and interests (including the Loan and any other debt secured thereby and the interest in related insurances and assurances) will be freely transferable by
the Company on such terms as the Company may think fit as part of a loan transfer and mortgage securitisation scheme. 10 I/We hereby authorise the disclosure by the
Company of any personal data or other information, including credit references, relating to any transaction between me/us and the Company or any subsidiary of the Company
to any Credit Information Agency or any person who proposes to take a transfer of the mortgage or to any credit rating agency for the purpose of assigning an investment
credit rating to an issue of mortgage backed securities. This authorisation constitutes a consent for the purposes of Section 8(h) of the Data Protection Act 1988 and 2003.
11 I/We authorise the Company to process and retain data provided by me/us in respect of this application, to seek from and provide credit references (searches) to any Credit
Information Agency, to record details of any transaction which may result from this application with any Credit Information Agency and that Credit Information Agency to
record, retain and disclose to its members details of all searches for a period of one year. 12 I/We acknowledge that the Company and/or any Credit Information Agency are
permitted to disclose any material misstatement of fact contained in the application for financial accommodation to its members and relevant bodies. I/We consent to any
such application being processed, recorded and retained by any Credit Information Agency. 13 I/We acknowledge that any communication in relation to the Loan to any person
whom the Company may believe to be in occupation of the property will not be in breach of the duty of confidentiality which the Company may owe to me/us. 14 I/We
acknowledge that First Active reserves the right to seek verification of any information contained in this application form or any accompanying documentation from any person.
15 I/We, in accordance with the Criminal Justice Act 1994, shall when requested by the Company, produce such evidence as the Company may require to verify my/our identities,
or the identity of any third party for whom I/we are acting. I/We hereby authorise the Company to make and retain copies of all materials, in accordance with the Criminal Justice
Act 1994. Where adequate identification has not been produced I/we understand that the Company may not issue my/our funds release. 16 I/We agree that First Active may refuse
to proceed with this application without having to state any reasons for such refusal. 17 I/We hereby consent and agree that First Active, its servants or agents may visit or
telephone me/us at my/our place of employment or business and I/we hereby give my/our consent for the purposes of section 46(a) of the Consumer Credit Act, 1995

[Emerald]

Re: All monies on clause mortgages

In the ERC Cases there were huge losses incurred despite the litigants winning their cases against the banks.

I don't know of any that actually won in court - but the point is even if you did win you are still liable for the banks costs under the indemnity. The court has no discretion over costs as the clause is written into the contract.

In the Smith v Mortgage Express the judge was happy to leave it at no costs but ME represented by Cobbetts insisted that the costs were paid by the LIP - £7.5K - and they relentlessy pursued it, to the extent they told the claimant they would take it as far as they had to even bankruptcy to prove their point.
In Cardiff, against Kensington Mortgages, Eversheds insisted on £4.5K, and pursued it.

Platform Home Loans, again represented by Eversheds are still pushing for a charging order 18 months after the case, even though monthly payments have been agreed and stuck to.

I don't know if you have any equity, or what your financial position will be if the repossesion goes ahead, but be prepared if you take further action for getting a huge costs bill, and even bankruptcy, even if you win. And knowing how these mortgage companies work, I would say that the chances of them continuing to attack you if you win are very high indeed.

The mortgage indemnity clause is probably the worst ever and it has been challenged in the Smith V ME case, but deemed to be not unfair.

I'm sorry if I sound all doom and gloom, and I genuinely wish you luck with this, but please think carefully about the personal losses that this could rack up before you act further.

[Jester]

Re: All monies on clause mortgages

OK. Now I have the paperwork back, I was going to put my Agreement that I made with RBS that implicitly shows that they agreed to my proposals for payments in July, August & September up on here, but I have apparently exceeded my quota so I can't.

I was also going to put the actual court order up here too which is specifically telling me that I have to vacate the premises on or before 23 September 2008. But I can't upload that either. Bear in mind that I have kept the payment schedule agreed in the first letter.

Another point of interest which I have noted on the court papers are that they are incorrect. It specifically refers to the Claimant as being 'The Bank Of Scotland', whereas in fact the Claimant is RBS. The Bank of Scotland are a completely different company (HBOS).

Is this something that can be seized upon or is it simply viewed as a court error ?

[Amethyst]

Re: All monies on clause mortgages

mmm you shouldnt have a quota. Will look at it. EDIT have sorted quotas out ....darn thing - should be okay now if you wnt to pop those bits up


Probably just a court error simply rectified but maybe worth pointing out or the court will have ordered you hand your house over to the wrong people lol.

Also I'm being dense I cant see which bit makes your mortgage an all monies mortgage in the T&Cs so assume we need the actual contract ??

[Guest]

Re: All monies on clause mortgages

It's a slip error and easy to rectify. Sadly it won't change anything.

[tomterm8]

Re: All monies on clause mortgages

Hmph, keep on trying to read the attachments but no joy, database error.

[Jester]

Re: All monies on clause mortgages

Assuming Amethyst has actually cured the attachment problem for me, then here are the two attachments I tried to post earlier - namely the written payment schedule agreement and then the actual court papers I received this morning.

Just as an aside, I chanced my arm with the FOS this afternoon to see how they would view this. The girl I spoke to agreed that it certainly didn't sound right what they had done. However, she said I must engage RBS through their complaints procedure first before the FOS would get involved and that RBS had 8 weeks to investigate the problem.

I pointed out to her that I don't have 8 weeks for this problem to be resolved as the court order demands I vacate the premises by 23rd September. Whilst she sympathised, she said that this was the set procedure and that they cannot intervene until this avenue had been explored.

Just what planet do the FOS live on ?

Anyway, no response from the email I sent to Mary McCullum today - marked for the attention of Sam Goodwin as Urgent, Time Sensitive and Please Read !!

Early days yet, but if no answer by Wednesday then I have no choice but to make it a formal letter and send it thru snail-mail. If I have to do that then the FSA, FOS and OFT will be getting a copy. I may even consider sending a copy to several of the major newspapers.

[EXC]

Re: All monies on clause mortgages

OK. Now I have the paperwork back, I was going to put my Agreement that I made with RBS that implicitly shows th
at they agreed to my proposals for payments in July, August & September up on here, but I have apparently exceeded my quota so I can't.

I was also going to put the actual court order up here too which is specifically telling me that I have to vacate the premises on or before 23 September 2008. But I can't upload that either. Bear in mind that I have kept the payment schedule agreed in the first letter.

Another point of interest which I have noted on the court papers are that they are incorrect. It specifically refers to the Claimant as being 'The Bank Of Scotland', whereas in fact the Claimant is RBS. The Bank of Scotland are a completely different company (HBOS).

Is this something that can be seized upon or is it simply viewed as a court error ?

It would be handy to see the repayment agreement. He seemed to think that would be the most important part of your case.

[Amethyst]

Re: All monies on clause mortgages

ummmm Jest the acceptance of the payment arrangement states about getting the unconditional possession order which is what they were given in court....and that it won't be enforced if you stick to the arrangement (which you are doing aren't you ?)

Or am I missing something major?


I assume if you stick to the payment arrangement, which you hopefully will be able to do if this job comes off, then you can get the possession order removed by negotiation with the bank ? not sure how that side of things works.

[Jester]

Re: All monies on clause mortgages

The court order states I have to vacate the premises by the 23rd September. That does not sound very conditional to me !!