Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

[gemspan]

Hi there

To cut a long story short I took a mortgage with Platform at a ridiculously high interest rate because I was desperate after a breakup. I then became ill and incurred arrears. The mortgage is interest only and ends when I am 78!!! :tinysmile_cry_t: Very responsible lending but, as I say I was desperate and the mortgage will be cleared with an inheritance....unless my parents live until they are 120 years old!

The arrears have reduced by over £1000 over the last year or so and the interest was being paid by DWP with me paying a bit on top. Also, they get 13 payments with DWP...not 12...but they don't take into consideration this overpayment you are making.

I was paying extra money when I was working but found out I had a heart complaint in January and since then have been paying my monthly payment only without anything else. They contacted a solicitor. They sent me statements and I queries the level of charges, insurance etc., they had added. They then sent me a copy of my Terms and Conditions....which were not the T&Cs I had!

They sent me a copy of T&Cs for Scotland....but I have English T&Cs. I took legal advice through my home contents insurance and was advised overall to write to them pointing out the discrepancy and put the account into dispute until a new contract was negotiated. They immediately issues a Calling Up Notice. Since discovering that I have the wrong T&Cs I have been paying an interest only payment on the current Bank of England Base Rate every month. The mortgage is now covered by DWP through my ESA....but it is going to repossession.

I have a court date on 21st September and am unsure as to what I have to do! Do I prepare Defences or just turn up and ask for a Proof to set out all my evidence to show that the repossession should not go ahead.

It shouldnt go ahead because.

1. Arrears have been reducing, not increasing like they say they are.
2. T&Cs fall under English Law not Scottish Law so the Calling Up Notice is unenforceable because they are using Scottish Law when it is English Law that is quoted in the contract I have with them.
3. If the lender has lost money then it is up to them to claim it from the solicitor who acted in the purchase as they were negligent.
4. My mortgage is being paid in full every month with an additional payment each year which will pay the arrears off by the end of the mortgage.
5. They have refused any negotiations I have suggested so have not completed pre-action protocols. I suggested Norgan.
6. I am paying interest payments on the increased mortgage amount. This means that the lender is having the benefit of interest twice which is unjust enrichment.

Can anybody help me to prepare for this Court case please. Thank you very much.

Gemspan

[SpringerSpaniel]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

You should definitely put in a defence ahead of time.

The first issue you state in your defence case statement should be to dispute the jurisdiction fo a Scottish court over a contract stated to be governed by English law. You may want to apply to the court for this to be considered as a preliminary issue, as king that the lender's claim be struck out.

[Ruby]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Something smells fishy!!! When was mortgage taken out? What is the interest rate? Was it regulated or not? NO responsibly lender would lend a mortgage well into your retirement age. Please read OFT guidelines into Unfair Relationships for a start.....

[gemspan]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Hi there

It was taken out in 2008. Where will I get the forms to put in a defence? Interestingly the solicitor has only attached the Tariff of Charges as part of the claim and not the Contract. Should I get in touch with the Court to get the appropriate forms? The Lender is Platform so it is regulated.

[SpringerSpaniel]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Yes, contact the court as soon as possible, explain the situation and ask for any necesary forms.

In your defence you should state that the remedies claimed are under a Contract which has not been evidenced, and that the Pursuers should not be allowed to rely on this contract until any such time as it is produced in evidence. Argue that the Claim is unenforceable without the Contract being produced to the Court.

As your home is at risk, you may be able to get free help from Shelter or from a Law Centre. Only represent yourself if you have no other options.

[gemspan]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Thank you I will contact them tomorrow. I wanted to represent myself because I sought the advice of the local Law Centre and he didn't seem to get where I was coming from. He said they could start the action under the Scottish Law even although the contract was English & Welsh T&Cs. I felt he just couldnt be bothered.....and didn't want to get involved in anything that wasn't the norm. He told me I had to contact a Contract Specialist.

I think this is a hearing to see if there is a case. If there is then a date will be set for a Proof..if not..the case will be dismissed. It's just so wrong the way I have been treated I have to fight this as they get away with this treatment of people all the time. I have no faith in Shelter or Law Centres due to the complexity of the case. Do you understand where I am coming from? I don't think they understand the significance of the contract. One person told me they could use English & Welsh T&Cs...but they are a completely different law. The areas open to Platform are through English law, not Feudal Reform....so it has to be significant.

[SpringerSpaniel]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

can you post a redaacted copy of the contract, and of the papers accompanying the court claim on here ? I would reiterate that you must indicate your intention to defend the case, so that the lender does not obtain judgement in default against you.

[gemspan]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Hi, I have just been on to the Court to ask what I have to do. This is a Scottish Court Case and they tell me all I have to do is attend Court on 21st September and put forward my case. I have a very strong case because they have failed in every single aspect of the pre-action protocols, the contract is wrong and the amount they are claiming is different from the statements they are showing that I owe on the court documents. They say I owe £103,000+ but the statements show £101,000+ and I believe all these figures are wrong.

I had problems with the solicitor when I bought this house. He was negligent on one aspect and I had my fees reduced because of this. He then failed to record the deeds and now I find out that he has lied and said I saw the Scottish T&Cs when I didn't and can prove I have the English T&Cs. The guy has now left the firm...I think he was sacked.

The solicitor acts for both purchaser and lender and he should have noticed that the T&Cs were wrong. He didn't but he printed off the Standard Security which states I have seen the T&Cs. He didn't explain the document to me...he just asked me to sign it. I didn't realise that this was wrong until they sent me the copy T&Cs to justify their £75 per month charge for not paying by direct debit. That is when I took legal advice through my home insurance.

This has been a mess from start to finish. I should never have taken the mortgage. The broker charged me £500 for the mortgage and he was also paid £580 from the lender for getting me the mortgage. This was at the time when they were all getting away with murder.

It's disgusting that this is happening to people and I am very interested to see what will happen because the solicitor I spoke with said that they used to received English T&Cs all the time and had to send them back. Clearly my solicitor hasn't done this and it is a completely different law they are trying to use to take my home. Not only have they failed to carry out pre-action protocols....they are really committing fraud by trying to take the house using the wrong law. They are aware of it too but have disregarded it. I have a letter saying that if I didn't have the Scottish T&Cs I should have asked for a copy when I signed the papers.... Surely its my solicitor that should be ensuring everything is in order. I paid him a fee to protect my interests.

[Magrew]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

The solicitor's statement could do you damage. Although there are many other weaknesses on their part from what you say.

Are you sure you don't want to use a law centre? I would recommend Govan LC on 0141 445 1955.

[SpringerSpaniel]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

£75 pcm for the privilege of paying your mortgage would seem contrary to UCTA to me !

[gemspan]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Hi Magrew, I don't know what you mean by the solicitor's statement doing me damage! There are no solicitors' statements. They haven't included the Standard Security or mortgage contract in the bundle of evidence. They have only included the Tariff of Charges. Unfortunately, Govan Law Centre only deals with cases in their jurisdiction. I want to go to the court initially because it is a complicated case and I know the ins and outs. I need to explain it to a Judge. The solicitors I have dealt with I don't have trust in...to be honest! If somebody is standing up in court pleading my case and gets it wrong that is likely to cause me more damage is it not? They don't have a case! Even if the judge says the contract is valid and I have to adhere to its terms, the arrears have been reducing and they have never offered any help. They have refused any suggestions to repay the arrears over the term of the mortgage or even capitalise them...despite the fact that I am paying interest on the whole amount and my payments wouldnt change. I believe this action is being taken out of spite because I questioned the charges. Its appalling.

[SpringerSpaniel]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

Were the case to have been brought in England, you would need to:

- submit an acknowledgement of servvice to allow further time to pepare your defence;

- filk a defence case statement setting out the grounds of your defence, and serve it on the other side as well as the court;

- submit an Interim Application for the case to be struck out on the grounds that the Scots courts do not have jurisdiction; this is because the mortgage contract states that it is governed by the law of England and Wales (although the mortgaged property is in Scotland)

There is also lkely to be a significant counterclaim against the lender re unfair charges - they may well owe YOU money.

However, I do not have the same knowledge as to how to run or to defend a civil claim in Scotland rather than in England - I am trying to find other members here who do who may be able to advise you. I am sorry you have not had better advice in response to your enquiries from the law centre etc, my view is that it is the option of last resort to represent yourself against a lender if your home is at stake.

The lender in my understanding should have issued a claim out of Berwick on Tweed County Court and then applied for permission to serve outside the jurisdiction of England and Wales, so they have made a fundamental procedural error. The Scottish court should strike their claim out as an abuse of process.

[Ruby]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

I wish you the best of luck Gemspan I am going through a battle myself with a company who has sold my secured loan to a DCA. I have since unravelled irregularities in my agreement too. The case is with the FOS now with details sent to the OFT. I, like you, don't really have any trust or faith in others fighting on my behalf. Nobody will be as passionate as you in getting to the bottom of things as at the end of the day they go home after a days work, whereas for us this is all about the place we call home.

Incidentally I live in central Scotland.

[gemspan]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

I was also told by a solicitor that lenders have to have a registered office in Scotland to be able to lend in Scotland. Does anybody know where I would find this information if its true please?

I live in Fife Ruby....I am worried about this but I do feel I have a very strong case. Even if the mortgage contract is enforceable in Scotland they have consistently refused any of my proposals for settlement. The mortgage interest is being paid by DWP now too....it's terrible what these gangsters are getting away with. I realise I owe them money, I am not denying that and most definitely not trying to get out of paying the money they lent me...but the contract needs to be renegotiated. I placed the account in dispute and they still started these proceedings. I believe the action is spiteful.... I'm at the stage now where I just don't care any more. I am so poorly this is just draining me....but I keep fighting because if the law is on my side then others may benefit. I only have another week to go so hopefully the news will be good.

[Ruby]

Re: Hi from Scotland....repossession with Sub-Prime Lender! Interesting case!

I'm cheering you on Gemspan :tinysmile_grin_t: We have to fight for what we believe in otherwise these idiots will keep getting away with it! PLEASE read the OFT guidelines into Unfair Relationships also the FSA guidelines in how mortgage lenders have to treat customers fairly and exhaust all options before commencing legal actions (MCOB) As your loan is regulated you will definately fall under their wing. FSA also state it is illegal to charge arrears fees(!?) Arm yourself with us much info as possible and we at LB will try and help in any way we can.

I cannot comment about whether companies have to be registered in Scotland in order to lend here. I guess calling the OFT would answer that interesting question, unless someone else on here can do so.

Please note that I am not legally qualifed, just qualifed from the school of hard knocks......