HBOS (Birmingham Midshires)

[removalman]

Hello,

A brief background: Between April 1994 and July 1999 I had a mortgage with Birmingham Midshires (subsequently acquired by HBOS). I ran into financial difficulties and incurred huge swathes of arrears charges etc. The mortgage was redeemed in 1999. Following the recent publicity regarding arrears charges now being regarded as unfair, I did a SAR request. This showed arrears charges amounting to almost £4000.00. I wrote to BM in June 2011. They ignored the letter and I wrote again in August. As they were unable to deal with the matter in sensible timeframes I issued proceedings in September.

Their Defence: Their in-house solicitors have written to me to suggest that I cannot rely on the recent FSA v Redstone and DB Mortgages rulings as these are "not legal authorities".

They also contend that this case is statute barred being over six years old as defined in the 1980 Limitation Act.

Opinions Sought please: So I have two questions.

Firstly, can I rely on the FSA rulings if this does come to court or is there alternative case law?

Secondly, can the statute barred rules be applied here as my assumption was that I had six years from the date that I could have reasonably discovered that I have grounds to make a claim.

They've offered me £725.00 to in effect "go away". I want to decline this offer but I will only be able to do that with any confidence if I'm sure of my legal position.

So can anyone assist me with answers to my two questions please?

Many thanks.

Removalman.

[Gorang]

Re: HBOS (Birmingham Midshires)

Statue of limitations in the 1980 Limitation Act for mortgages is 12 years NOT 6 years so they are talking rubbish with this and it is a complete lie by them

As far as I am aware mortgages are the only thing that legally goes to a 12 year period for the limitiaon period

FSA v Redstone and DB mortgages I am not sure of, was this a high court case?

But as they have lied already about the limitation period, I would not be surprised if this is another lie

[Judge mental]

Re: HBOS (Birmingham Midshires)

Hi

the Limitations Act 1980 is 12 years for mortgages and secured loans, time begins at the last contact or payment, further if the time limit has passed, the time limit is 3 years from the point you became aware of the material facts

as with all limitations if the right of action is based on fraud, misrepresentation, concealment or mistake by the defendant the time does not begin until the mistake, fraud or concealment was discovered.

Of course you can bring to the attention of the court the fact that DB were fined by the FSA for bad practices which included charging customers arrears fees which exceeded their additional administration costs, you should also make the court aware that as part of their 'punishment' DB were instructed (and they agreed) to contact all customers who were affected (you included) and give redress, which they have failed to do

You should also rely on Part of 12 MCOB (Mortgage code of business) and penalties at common law.

Good luck

[removalman]

Re: HBOS (Birmingham Midshires)

My thanks for the replies so far.

If the FSA rulings may not be binding in a County Court, it does beg the question whether there have actually been any "refund of mortgage arrears" cases that have actually come to court and have had successful outcomes (from the claimants point of view)?

Presumably that would be far more persuasive to a Judge that the FSA rulings?

[teaboy2]

Re: HBOS (Birmingham Midshires)

The FSA is the legal Authority that governs most creditors, the FSA operates in accordance to the law and would have only fined DB if they had been deemed to have been acting in breach of such laws. So i personally would refer the FSA V redstone and DB in any such court case, referencing the point that, 'if redstone and DB thought they were acting lawfully then why did they not challenge the FSA in court, but instead agreed with the FSA decision and offered early settlement to get a reduction of 30% off the original fine of 1.2 million?' The chances are the judge will agree with the FSA and award you a refund plus interest and any compensation for damages i.e. adverse credit that would not have occured if it had not been for these arrears charges.

[removalman]

Re: HBOS (Birmingham Midshires) - URGENT!

Once again my thanks in advance to the people of here for their wisdom and knowledge. Anyway, here is the latest twist and I could really use some reasonably urgent advice and guidance please.

We were due to finally have a hearing next Monday 5th March at my local court. However the defendant (Bank of Scotland) has instead filed an application for my claim to be struck out and that in effect will now be what will be considered next Monday. By the way, they filed this ten days later then original judges directions. I've attached the documents I've received (with names/addresses removed).

They are relying on the Limitation Act 1980 for much of their defence and I believe I can deal with this quite easily as their defence on this part of the claim is very shaky, their facts are wrong and they are fully aware that there is relatively recent correspondence relating to financial transactions on this mortage less than four years old. So as I say, I'm not unduly worried by this aspect of their defence.

However where I am very concerned is the comments they make about UTCCR and MCOB in Paragraph 4, 5, & 6. I don't know what my line of attack should be at hearing to rebutt these arguments. I've cited the DB and Redstone cases as the basis of my original claim but my mortgage was actually redeemed a long time ago.

So any assistance would be gratefully received.

Regards,

Removalman.

[removalman]

Urgent: HBOS (Birmingham Midshires)

Once again my thanks in advance to the people of here for their wisdom and knowledge. Anyway, here is the latest twist and I could really use some reasonably urgent advice and guidance please.

We were due to finally have a hearing next Monday 5th March at my local court. However the defendant (Bank of Scotland) has instead filed an application for my claim to be struck out and that in effect will now be what will be considered next Monday. By the way, they filed this ten days later then original judges directions. I've attached the documents I've received (with names/addresses removed).

They are relying on the Limitation Act 1980 for much of their defence and I believe I can deal with this quite easily as there defence on this part of the claim is very shaky, their facts are wrong and they are fully aware that there is relatively recent correspondence relating to financial transdactions on this mortage less than four years old. So as I say, I'm not unduly worried by this aspect of their defence.

However where I am very concerned is the comments they make about UTCCR and MCOB in Paragraph 4, 5, & 6. I don't know what my line of attack should be at hearing to rebutt these arguments. I've cited the DB and Redstone cases as the basis of my original claim but my mortgage was actually redeemed a long time ago.

So any assistance would be gratefully received.

Regards,

Removalman.

I have no idea if the pdf uploaded so i'm posting thias message again. Apologies if I've duplicated...

[Ihaterbs]

Re: HBOS (Birmingham Midshires)

Your claim appears to be statute barred by virtue limitation Act 1980.

[bluebottle]

Re: HBOS (Birmingham Midshires)

There are more learned LB members than I, but you may have grounds to make a formal complaint to the Solicitors Regulation Authority (SRA) against the solicitors involved. However, please let the more learned LB members look at this first.

[removalman]

Re: HBOS (Birmingham Midshires)

Thanks for your reply.

For a number of reasons I don't believe this case is Statute Barred in spite of the defence document I've uploaded for everyone to see.

Firstly the defendant WAS notified of a potential claim within 12 years of the mortgage being redeemed. Secondly, four years ago Birmingham Midshires wrote to me sending a cheque to refund me overcharged interest - so certainly within six years (let alone 12 years). Thirdly, I believe I have a further three years from the date I reasonably discovered that I had grounds to make a claim. So on that basis, their application as it relates to being Statute Barred in my opinion falls at every hurdle.

Therefore my focus and concern is not the Limitation Act but how I should respond to the paragraphs 4, 5, and 6 as that's where I'm struggling to know how to rebutt.

Thanks.

[Ihaterbs]

Re: HBOS (Birmingham Midshires)

Thanks for your reply.

For a number of reasons I don't believe this case is Statute Barred in spite of the defence document I've uploaded for everyone to see.

Firstly the defendant WAS notified of a potential claim within 12 years of the mortgage being redeemed. Secondly, four years ago Birmingham Midshires wrote to me sending a cheque to refund me overcharged interest - so certainly within six years (let alone 12 years). Thirdly, I believe I have a further three years from the date I reasonably discovered that I had grounds to make a claim. So on that basis, their application as it relates to being Statute Barred in my opinion falls at every hurdle.

Therefore my focus and concern is not the Limitation Act but how I should respond to the paragraphs 4, 5, and 6 as that's where I'm struggling to know how to rebutt.

Thanks.

The last default charge applied to your account was in 1999 it is now 2012, sorry but your claim is time barred.

[removalman]

Re: HBOS (Birmingham Midshires)

Just for clarity on this....

The mortgage was redeemed in July 1999 (and not in May 1999 as intimated in the defence) and I wrote to BM I initially in June 2011 about this matter which was 11 years and 11 months.

That said you could indeed be right however if you read someof the earlier posts on this thread you will see that there is a viewpoint that agrees with me....

[Ihaterbs]

Re: HBOS (Birmingham Midshires)

Just for clarity on this....

The mortgage was redeemed in July 1999 (and not in May 1999 as intimated in the defence) and I wrote to BM I initially in June 2011 about this matter which was 11 years and 11 months.

That said you could indeed be right however if you read someof the earlier posts on this thread you will see that there is a viewpoint that agrees with me....

Just for clarity on this....The mortgage was redeemed in July 1999 (and not in May 1999 as intimated in the defence) and I wrote to BM I initially in June 2011 about this matter which was 11 years and 11 months. That said you could indeed be right however if you read someof the earlier posts on this thread you will see that there is a viewpoint that agrees with me....

I am right.

The cause of action first arose in 1994 when they applied the first default charge. You then had 12 years from this date to issue proceedings. It is irrelevant that you wrote to BM 11 years and 11 months after redemption.

[removalman]

Re: HBOS (Birmingham Midshires)

Hello again,

I keep reading (and re-reading) Sections 29-32 of The Limitation Act and I remain convinced that this claim will not be statute barred by the Judge.

To be honest, at this stage I don't really have much to lose by going to the hearing and giving it my best shot.

If I'm to do that, I could still use a bit of help re: paragraphs I mentioned yesterday...

[removalman]

Success! (well, sort of) HBOS - Birmingham Midshires

So I went to the hearing yesterday equipped with all my arguments relating to Section 32 of The Limitation Act 1980 and incredibly the Defendant didn't turn up!

So their Application to Set Aside was struck out, I got Judgement for the full amount claimed, plus costs plus interest which represents a tidy sum.

On the basis they have known about the hearing for in excess of four months I'd be interested to know on what grounds they could apply for the judgement to now be set aside as I'm no doubt they will attempt to avoid paying and will stretch this out with lots of fancy legal arguments why they weren't able to attend the hearing.

I'm a realist, so I know their going to do something, but what will that "something" be?

RM