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I produced this claim due to the Mortgage business and Stealing my mums house.... Can someone help me with a good line of argument to the contrary please?
In the xxxxxxxxxxxxxxx County Court Claim Number
Between
xxxxxxxxx
Claimant
and
The Mortgage Business Plc
Lloyds Banking Group
Defendant
__________________________________________________ _______________________
The Claim
I, xxxxxxxxxxxxxxxxxxx say as follows:
1. I, xxxxxxxxxxx, (the Claimant) make this claim as the prior owner of xxx, xxxxxxxxxxxxxxxxxxxxxxxx the facts of the matter to which I refer I believe to be true.
2. I, the Claimant took out a residential mortgage and flexible option agreement (Funding package for the mortgage) with The Mortgage Business plc on xx of September 2007 – mortgage number xxxxxxxxxxxx on xxxxxxxxxx for the sum of £382,500.
3. The Flexible Option Agreement (the Funding section of the Mortgage) was stated as regulated by the Consumer Credit Act 1974 and secured on my home xxxxxxxxxxe.
4. Unfortunately I was unable to keep up the payments on xxxxxxxxxxxxxxe and an LPA receiver (“xxx”) were appointed without my acceptance or permission in January 2012 under the terms of the mortgage conditions 2004 2nd edition and a sale was made on the xx of September 2012 for the sum of £279,000 by (xx).
5. I claim that the flexible option agreement (Funding of the mortgage deed) which was entered into on or around xx of September 2007, which was stated as being regulated by the Consumer Credit Act 1974 for the sum of £382,500 was in fact in breach of the Consumer Credit Act because it was over the £25,000 credit limit which applied in 2007 to the Consumer Credit Act.
6. The 1974 Act states: - “The Act does not regulate a consumer credit agreement by which the creditor provides credit exceeding £25,000”. Up until 6th of April 2008, agreements were excluded from regulation if the amount of credit or hire exceeded £25,000. However, this financial limit was removed for all new credit and hire agreements by the Consumer Credit Act 2006. Pre-existing agreements above £25,000 remain outside CCA regulation.
7. The flexible option agreement which was entered into and signed in and or around 11th of September 2007 has two statements which are party to my claim:
Statement “A” The Consumer Credit Act 1974 covers this agreement and lays down certain requirements for your protection which should have been complied with when the agreement was made. If they were not, we cannot enforce this agreement without getting a court order.
Statement “B” in the signing box: - This is a credit agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms.
8. The LPA Receiver was appointed without the benefits of the flexible option agreement mortgage conditions 2004 2nd edition repossession clause because of statement “A” and in fact to enforce any action at that time they should have applied for a normal Court Order for possession, due to the contract being in breach of the Consumer Credit Act 1974.
9. The Contract was miss-sold and the implied terms of the contract of sale statement Regulated Consumer Credit Act 1974 was an aspect that I relied upon for my future protection, and I believe is in breach of Unfair Contract Terms Act 1977: for the purposes of this Part of this Act, “negligence” means the breach:
(a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract.
10. Under the Unfair Contract Terms Act 1977 I believe that the contract does not meet the reasonableness test as stated:
Section 11. The “reasonableness” test:
(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the M6 Misrepresentation Act 1967 and section 3 of the M7 Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made;
(2) In determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract;
(3) In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.
11. I also believe there is a breach of the Sales of Goods Act as follows:-
Sale by description;
(1) Where there is a contract for the sale of goods by description, there is an implied [term] that the goods will correspond with the description.
12. I also believe there is a breach of the Misrepresentations Act 1967, case law attached below. I believe to show that The Mortgage Business plc is a financial institute and holds a Consumer Credit Licence, their ability to claim that a financial body did not know the laws that cover their industry or this contract cannot apply, hence they did not take or make use of their expertise in relation to the terms of the contract when drawn:-
Esso Petroleum v Mardon 1976 CA
P: if opinion is made by a person with greater skill and expertise in relation to the subject matter, a reasonable care and skill is required.
Facts: Lord Denning case. A forecast made by Esso on measurement of a filling station. They knew all the info. They were in a much better position than Mardon. In such case, Esso would know that the forecast will be relied on by Mardon. It is different from the New Zealand case (Bisset v Wilkinson) where both parties knew nothing about the sheep farming but pre-estimate the sheep quantities in the farm.
Derry v Peek (1889) 14 App Cas
P: definition of fraudulent misrepresentation by Lord Herschell, first need proof of fraud, if fraud is proved, then it has to be shown that the false statement has been made knowingly, without belief in its truth, or recklessly, careless whether it be true or false. Thirdly, if above are proved, motive is immaterial.
F: Derry bought the shares relying on the Peek’s statement as director of the company that it could use steam power. But in fact not, so it wound up. Held: Peek had honest belief that statement made was true.
13. The Mortgage Business plc knowingly sold xxxxxxxxxxxxxx through this misrepresentation and by doing so caused loss to another or to expose another to a risk of loss, a matter related to the Fraud Act 2006.
Fraud by false representation:
(1) A person is in breach of this section if he:
(a) Dishonestly makes a false representation, and
(b) Intends, by making the representation:
(i) To make a gain for himself or another, or
(ii) To cause loss to another or to expose another to a risk of loss.
(2) A representation is false if:
(a) It is untrue or misleading, and
(b) The person making it knows that it is, or might be, untrue or misleading.
(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of:
(a) The person making the representation, or
(b) Any other person.
14. I believe that I have been damaged By (xxx) by selling my property without my consent especially when (xxxx) knew in 2012 by the BBC and National News article’s attached that the complaint of these flexible option agreements failure to comply with the Consumer Credit Act 1974 have already been brought to the public eye and UK County Courts attention and if its ruled that the Consumer Credit Act 1974 did not apply then the financial agreement between two parties would still apply.
15. If the Court rules that there was a breach and the Consumer Credit Act 1974 did not apply to this agreement but the contract terms must apply then statement “A” attached herein must apply and the property was sold unlawfully as this term was stated for the protection of the borrower.
Particulars of Claim
16. If the Court rules that the Flexible option agreement was a breach of the Misrepresentations Act 1967 then I seek for the contract to be rescinded and claim damages, interest and payments made since the start of the flexible option agreement to also include my deposits percentage (equity) paid to be returned to me with interest.
17. Insofar as it may be established at trial that the Consumer Credit Act 1974 did not apply to this agreement and that xxxxxxxxxxxxx was sold unlawfully then the Claimant is entitled to and claims damages for breach of the above implied terms in the flexible option agreement (funding of the mortgage deed) by reason of which the Claimant has suffered loss and damage.
18. The Claimant is entitled to claim and does claim interest pursuant to section 69 of the County Courts Act 1984 on such sums as may be awarded to it, at such rate and for such periods as the Court sees fit.
Statement of Truth
The facts stated in this claim are the facts of the matter to which I refer and I believe to be true.
Signed: ………………………………………………………… Dated: .............................
In the xxxxxxxxxxxxxxx County Court Claim Number
Between
xxxxxxxxx
Claimant
and
The Mortgage Business Plc
Lloyds Banking Group
Defendant
__________________________________________________ _______________________
The Claim
I, xxxxxxxxxxxxxxxxxxx say as follows:
1. I, xxxxxxxxxxx, (the Claimant) make this claim as the prior owner of xxx, xxxxxxxxxxxxxxxxxxxxxxxx the facts of the matter to which I refer I believe to be true.
2. I, the Claimant took out a residential mortgage and flexible option agreement (Funding package for the mortgage) with The Mortgage Business plc on xx of September 2007 – mortgage number xxxxxxxxxxxx on xxxxxxxxxx for the sum of £382,500.
3. The Flexible Option Agreement (the Funding section of the Mortgage) was stated as regulated by the Consumer Credit Act 1974 and secured on my home xxxxxxxxxxe.
4. Unfortunately I was unable to keep up the payments on xxxxxxxxxxxxxxe and an LPA receiver (“xxx”) were appointed without my acceptance or permission in January 2012 under the terms of the mortgage conditions 2004 2nd edition and a sale was made on the xx of September 2012 for the sum of £279,000 by (xx).
5. I claim that the flexible option agreement (Funding of the mortgage deed) which was entered into on or around xx of September 2007, which was stated as being regulated by the Consumer Credit Act 1974 for the sum of £382,500 was in fact in breach of the Consumer Credit Act because it was over the £25,000 credit limit which applied in 2007 to the Consumer Credit Act.
6. The 1974 Act states: - “The Act does not regulate a consumer credit agreement by which the creditor provides credit exceeding £25,000”. Up until 6th of April 2008, agreements were excluded from regulation if the amount of credit or hire exceeded £25,000. However, this financial limit was removed for all new credit and hire agreements by the Consumer Credit Act 2006. Pre-existing agreements above £25,000 remain outside CCA regulation.
7. The flexible option agreement which was entered into and signed in and or around 11th of September 2007 has two statements which are party to my claim:
Statement “A” The Consumer Credit Act 1974 covers this agreement and lays down certain requirements for your protection which should have been complied with when the agreement was made. If they were not, we cannot enforce this agreement without getting a court order.
Statement “B” in the signing box: - This is a credit agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms.
8. The LPA Receiver was appointed without the benefits of the flexible option agreement mortgage conditions 2004 2nd edition repossession clause because of statement “A” and in fact to enforce any action at that time they should have applied for a normal Court Order for possession, due to the contract being in breach of the Consumer Credit Act 1974.
9. The Contract was miss-sold and the implied terms of the contract of sale statement Regulated Consumer Credit Act 1974 was an aspect that I relied upon for my future protection, and I believe is in breach of Unfair Contract Terms Act 1977: for the purposes of this Part of this Act, “negligence” means the breach:
(a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract.
10. Under the Unfair Contract Terms Act 1977 I believe that the contract does not meet the reasonableness test as stated:
Section 11. The “reasonableness” test:
(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the M6 Misrepresentation Act 1967 and section 3 of the M7 Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made;
(2) In determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract;
(3) In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.
11. I also believe there is a breach of the Sales of Goods Act as follows:-
Sale by description;
(1) Where there is a contract for the sale of goods by description, there is an implied [term] that the goods will correspond with the description.
12. I also believe there is a breach of the Misrepresentations Act 1967, case law attached below. I believe to show that The Mortgage Business plc is a financial institute and holds a Consumer Credit Licence, their ability to claim that a financial body did not know the laws that cover their industry or this contract cannot apply, hence they did not take or make use of their expertise in relation to the terms of the contract when drawn:-
Esso Petroleum v Mardon 1976 CA
P: if opinion is made by a person with greater skill and expertise in relation to the subject matter, a reasonable care and skill is required.
Facts: Lord Denning case. A forecast made by Esso on measurement of a filling station. They knew all the info. They were in a much better position than Mardon. In such case, Esso would know that the forecast will be relied on by Mardon. It is different from the New Zealand case (Bisset v Wilkinson) where both parties knew nothing about the sheep farming but pre-estimate the sheep quantities in the farm.
Derry v Peek (1889) 14 App Cas
P: definition of fraudulent misrepresentation by Lord Herschell, first need proof of fraud, if fraud is proved, then it has to be shown that the false statement has been made knowingly, without belief in its truth, or recklessly, careless whether it be true or false. Thirdly, if above are proved, motive is immaterial.
F: Derry bought the shares relying on the Peek’s statement as director of the company that it could use steam power. But in fact not, so it wound up. Held: Peek had honest belief that statement made was true.
13. The Mortgage Business plc knowingly sold xxxxxxxxxxxxxx through this misrepresentation and by doing so caused loss to another or to expose another to a risk of loss, a matter related to the Fraud Act 2006.
Fraud by false representation:
(1) A person is in breach of this section if he:
(a) Dishonestly makes a false representation, and
(b) Intends, by making the representation:
(i) To make a gain for himself or another, or
(ii) To cause loss to another or to expose another to a risk of loss.
(2) A representation is false if:
(a) It is untrue or misleading, and
(b) The person making it knows that it is, or might be, untrue or misleading.
(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of:
(a) The person making the representation, or
(b) Any other person.
14. I believe that I have been damaged By (xxx) by selling my property without my consent especially when (xxxx) knew in 2012 by the BBC and National News article’s attached that the complaint of these flexible option agreements failure to comply with the Consumer Credit Act 1974 have already been brought to the public eye and UK County Courts attention and if its ruled that the Consumer Credit Act 1974 did not apply then the financial agreement between two parties would still apply.
15. If the Court rules that there was a breach and the Consumer Credit Act 1974 did not apply to this agreement but the contract terms must apply then statement “A” attached herein must apply and the property was sold unlawfully as this term was stated for the protection of the borrower.
Particulars of Claim
16. If the Court rules that the Flexible option agreement was a breach of the Misrepresentations Act 1967 then I seek for the contract to be rescinded and claim damages, interest and payments made since the start of the flexible option agreement to also include my deposits percentage (equity) paid to be returned to me with interest.
17. Insofar as it may be established at trial that the Consumer Credit Act 1974 did not apply to this agreement and that xxxxxxxxxxxxx was sold unlawfully then the Claimant is entitled to and claims damages for breach of the above implied terms in the flexible option agreement (funding of the mortgage deed) by reason of which the Claimant has suffered loss and damage.
18. The Claimant is entitled to claim and does claim interest pursuant to section 69 of the County Courts Act 1984 on such sums as may be awarded to it, at such rate and for such periods as the Court sees fit.
Statement of Truth
The facts stated in this claim are the facts of the matter to which I refer and I believe to be true.
Signed: ………………………………………………………… Dated: .............................
) the TMB which is no longer in business only sold its products through intermediaries (i.e brokers and packagers) and not directly to the public. Does this mean you may have a case of miss-selling through a broker? If so are you aiming at the right target?
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