first charge mortgage GE

[Judge mental]

Re: first charge mortgage GE

Amellia33

The court will not have allocated sufficient time for all those matters to be determined at the next hearing, the judge will only be looking to formulate an agreement under which a suspended possession order would be granted.

You are setting out an ambitious and potentially dangerous path to follow as the lender would employ high level legal representation but for your defence and counterclaim to be heard and considered you will need to convince the Judge to allow sufficient time for your claims to be addressed and determined, for that the Judge would transfer the matter to the multi-track.

If you are serious about having these matters heard in a court you should do so under no illusions that should you lose, the costs award against is are likely to be more than the mortgage.

On the other side you may wish to consider whether you feel the lender actually has the stomach for such a fight as the cost to them would extend far beyond your costs (you should begin to log all time spent researching, preparing and making correspondence and keep receipts for everything spent, even small items like postage),

Reality is that most lenders look at matters in a different light and suddenly want to negotiate an alternative option to court should anyone have the audacity to challenge them to the point that it involves more work than completing an application for possession form and sending along a local junior solicitor, who will always put up a bit of a fight as not securing at least a suspended order does not do their potential career any good.

On the matter of convincing the court, I would be happy to discuss each point with you, with the intention of arming you with as much information as possible to ensure things move onto the next stage which will be decided at the hearing as the Judge would give directions for the management of the case, basically setting a timescale for each stage of the process up to a full hearing.

One such stage would be disclosure, where you could make a request through the courts for documentation like the a breakdown of their charges and details of commissions paid etc.

Stuart

[Guest]

Re: first charge mortgage GE

Hi
Sorry I didn’t read your initial post with enough care. I see you are already in the latter stages of litigation.
I am not quite sure if this agreement is a re mortgage or one that has just changed hands through assignment.
You are correct this is an old argument and one I have not thought about for some time.
I think that if you are pursuing a defence for unfair treatment under section 140 for an agreement that was taken out in 1998 with no suppp0orting evidence you are going to be hard pushed to get a judge on your side, since you would have been paying it I presume for some years before you defaulted.
If this has been recently re mortgaged with a sub-prime lender as I believe the case you mentioned was, you stand a better chance of showing that there may have been a pre-contractual information breach and support this assertion by providing proof that the broker was not acting in your interests.
Peter

[amelia33]

Re: first charge mortgage GE

Agreements secured on land
3.3 The Act does not regulate:
• a regulated mortgage contract, or regulated home purchase plan,
within the meaning of the Financial Services and Markets Act
2000,23 or
• an agreement where the creditor is a housing authority and the
agreement is secured by a land mortgage of a dwelling.24
3.4 In addition, the Act does not regulate:
a) a debtor-creditor-supplier agreement financing the purchase of land,
or the provision of dwellings on any land, secured by a land
mortgage on that land
b) a debtor-creditor agreement secured by any land mortgage to
finance the purchase of land or the provision of dwellings on any
land
22 See paragraph 1.2 above.
23 Section 16(6C).
24 Section 16(6A).
7
c) a debtor-creditor agreement secured by any land mortgage to
finance the provision of business premises on any land
d) a debtor-creditor agreement secured by any land mortgage to
finance the alteration, enlarging, repair or improvement of a
dwelling or business premises on any land, provided that:
- the creditor is the creditor under another agreement relating to
that land (and secured by a land mortgage on it), or
- the services are certified as having been provided by a local
authority or charity, or by a housing association or similar
body, or by the National Home Improvement Council
e) a debtor-creditor agreement secured by any land mortgage to
refinance any existing indebtedness of the debtor under an
agreement falling within (b) to (d), or
f) a debtor-creditor-supplier agreement financing a transaction which
is a linked transaction in relation to an agreement falling within (a)
or (b) and secured by a land mortgage on that land,
provided in each case that the creditor is a deposit-taker25 or a body
specified in Part 1 of Schedule 1 to the 1989 Order, namely certain
named insurance companies, friendly societies, charities and other
bodies.26
25 Within -

can someone explain this - d-c-s ? - is that the same as a regulated mortgage?

[Guest]

Re: first charge mortgage GE

HI Amelia

Section 140 is not restriceted in its use by the exempt catergories of the cca, it would still apply i think in your case.
Section 16

(7) Nothing in this section affects the application of sections 137 to 140 (extortionate credit
bargains).

(8) In the application of this section to Scotland

A DCS agreement is a debtor creditor supplier agreement.

I will get back to you

Peter

[Judge mental]

Re: first charge mortgage GE

Amelia33

I agree with Peter that basing the defence on section 140 would prove to be very difficult, so all that may be required is to approach it from a different angle and base your defence primarily on arguments like -

A failure to provide pre-contractual information, for the claimant to counteract your argument they would need to produce the missing or non-existent documents.

A breech of fiduciary duty - The broker not advising you of his commission and the attempts by the claimant to conceal it.

Imposing unlawful penalties under common law, charges for a breech of contract that exceed their additional administration costs in dealing with the breech.

Probable breeches of Civil Procedure Rules and Pre-Action Protocol.

After providing the Judge with clear, well thought out arguments based on facts and supported by evidence and case Law for each of the above arguments, you can then throw in the possibility that the claimants actions or non-actions would amount to a breech of section 140, but use the 140 breech as a consequence of the bad practices of the claimant and supplementary to your main arguments

This would (if accepted by the court) have the effect of still forcing the burden of proof onto the claimant whilst not limiting the outcome to whether a breech of 140 has taken place or not. If the Judge does not find in your favour on section 140, he can still find in your favour on one or more of the main points of your defence and counterclaim.

I hope it makes sense


Stuart

[amelia33]

Re: first charge mortgage GE

thanks to all replies, so grateful for any help

hypothetically asking a question IF an agreement to buy a property in which to live, shows figures as an advance including non restricted use, then puts on top of that, -
brokers fee, legal costs, completion costs, making a subtotal (not shown)of costs added to the advance (which i assume would be restricted use?) and totals it all up as the total loan(mortgage first charge). wouldnt this be odd. and what if that took it over the 25 k protection of cca?

so the first advance would have been below 25k if the 'additional advance of non restricted use' was not bundled into that.
then the fees planted on top of that figure.

any one see any issues with this??????

[amelia33]

Re: first charge mortgage GE

[F14(6A)This Act does not regulate a consumer credit agreement where the creditor is a housing authority and the agreement is secured by a land mortgage of a dwelling.
(6B)In subsection (6A) “housing authority ” means—
(a)as regards England and Wales, [F15the Homes and Communities Agency, the Welsh new towns residuary body,][F16the Regulator of Social Housing and] an authority or body within section 80(1) of the Housing Act 1985 (the landlord condition for secure tenancies), other than a housing association or a housing trust which is a charity;
(b)as regards Scotland, a development corporation established under an order made, or having effect as if made under the New Towns (Scotland) Act 1968, the Scottish Special Housing Association or the Housing Corporation;
(c)as regards Northern Ireland, the Northern Ireland Housing Executive.]
[F17(6BA)In subsection (6B)(a) “the Welsh new towns residuary body” means the Welsh Ministers so far as exercising functions in relation to anything transferred (or to be transferred) to them as mentioned in section 36(1)(a)(i) to (iii) of the New Towns Act 1981.]
[F18[F19(6C)This Act does not regulate a consumer credit agreement if—
(a)it is secured by a land mortgage and entering into the agreement as lender is a regulated activity for the purposes of the Financial Services and Markets Act 2000; or
(b)it is or forms part of a regulated home purchase plan and entering into the agreement as home purchase provider is a regulated activity for the purposes of that Act.]
(6D)But section 126, and any other provision so far as it relates to section 126, applies to an agreement which would (but for [F20subsection (6C)(a)]) be a regulated agreement.
(6E)Subsection (6C) must be read with—
(a)section 22 of the Financial Services and Markets Act 2000 (regulated activities: power to specify classes of activity and categories of investment);
(b)any order for the time being in force under that section; and
(c)Schedule 2 to that Act.]
(7)F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F22(7A)Nothing in this section affects the application of sections 140A to 140C.]

so, I think with help this is useful (anyone can translate?)

[Guest]

Re: first charge mortgage GE

Hi Yes it means that first charge mortgages arn't regulated under the CCA and section 140 applies no matter what.

Petr

[Guest]

Re: first charge mortgage GE

thanks to all replies, so grateful for any help

hypothetically asking a question IF an agreement to buy a property in which to live, shows figures as an advance including non restricted use, then puts on top of that, -
brokers fee, legal costs, completion costs, making a subtotal (not shown)of costs added to the advance (which i assume would be restricted use?) and totals it all up as the total loan(mortgage first charge). wouldnt this be odd. and what if that took it over the 25 k protection of cca?

so the first advance would have been below 25k if the 'additional advance of non restricted use' was not bundled into that.
then the fees planted on top of that figure.

any one see any issues with this??????

Yes this has been a major source of dissagreement for some years in the courts.
Section 18 of the act says that each part of an agreement must be treated sepperately as an agrement in its own right.(Greatly simplified).
Many have said that this means that if the unrestricted part of the loan was under 25k then it should have been a regulated agreement and have its own set of terms and conditions, and if it didnt it would not be enforceable under section127.

There was a major test case a few years ago(the name escapes me at the moment ) but it was based around this very premise, and there is a huge thread on GAG also based on the wonders of section 18.

THe test case and the subsequent appeal both went in favour of the creditor, the rashionale was that even though it was sepperated into unrestriced and restriced catergories it was still one loan and therefore section 18 did not apply.
Many of us did not agree including Francis Benyon who wrote the legislation in the first place but unfortunately the courts have spoken.
Peter

[amelia33]

Re: first charge mortgage GE

Yes this has been a major source of dissagreement for some years in the courts.
Section 18 of the act says that each part of an agreement must be treated sepperately as an agrement in its own right.(Greatly simplified).
Many have said that this means that if the unrestricted part of the loan was under 25k then it should have been a regulated agreement and have its own set of terms and conditions, and if it didnt it would not be enforceable under section127.

There was a major test case a few years ago(the name escapes me at the moment ) but it was based around this very premise, and there is a huge thread on GAG also based on the wonders of section 18.

THe test case and the subsequent appeal both went in favour of the creditor, the rashionale was that even though it was sepperated into unrestriced and restriced catergories it was still one loan and therefore section 18 did not apply.
Many of us did not agree including Francis Benyon who wrote the legislation in the first place but unfortunately the courts have spoken.
Peter

was that the Heath case I wonder?

[Guest]

Re: first charge mortgage GE

was that the Heath case I wonder?

Yes that was the one.

Having said that, if you suspect you may have a multiple agreement it is still worth having a look, the heath judgement does not unilaterally rule out the possibility of using the argument, it depends on the agreement and the circumstances of the loan.
If you have no agreement you could i suppose say that you have one and let them try to prove otherwise.
Just a thought

Peter

[amelia33]

Re: first charge mortgage GE

I have the copies sent with their poc. some of the figures seem rather odd, one document has the property purchase price as pre discount and inaccurate, another has the total incorrect also.
------------------------------- merged -------------------------------

Yes that was the one.

Having said that, if you suspect you may have a multiple agreement it is still worth having a look, the heath judgement does not unilaterally rule out the possibility of using the argument, it depends on the agreement and the circumstances of the loan.
If you have no agreement you could i suppose say that you have one and let them try to prove otherwise.
Just a thought

Peter

yes i am so cross my solicitors backed out (after Heath) when Idid not think my situation was same and there was still room for argument on multiple agreements. the funds for the house were paid seperately to the council and were instructed by the rep, nothing of this i knew about or was informed of, he could have sent it all to me to do and i would have been none the wiser, i didnt even know i was paying for two solicitors, one he used and ocwens!! i have all the papework to prove this if it matters, i think it should (morally) but legally too.

[Guest]

Re: first charge mortgage GE

I have the copies sent with their poc. some of the figures seem rather odd, one document has the property purchase price as pre discount and inaccurate, another has the total incorrect also.

Could i have a peek

Peter

[amelia33]

Re: first charge mortgage GE

Could i have a peek

Peter

i could scan them and post ( dowloand) - to where? legal process underway though?

[Guest]

Re: first charge mortgage GE

i could scan them and post ( dowloand) - to where? legal process underway though?

Hmm i see, check your in box

Peter