Additional Mortgage Loan and the CCA? Help Pls

[make them aktiv runners]

I think so.

 

I am not that upon the legal side of property, it is gut feeling of what is right and experiences I know of. For example, I know some-one who remortgaged (ok they moved but the principle to me is the same) and the charges simply transferred, the newmortgage was first priority and the charges stayed 2nd.

 

Looking at it in a logical sense. If the total borrowing and charges are less than 100% of the property value there is no reason why the mortgage company cannot take precedence over the charges. All they had to do was get the chargees to agree that the valuation was fair to their potential return (should anything go wrong). I am somewhat inclined to believe that you were mis-sold the mortgage as I am sure they could have got round the charges without jepordising their own position (and certainly without you having to pay interest on 37K).

[andrew1]

I think you're right Aktiv - well, it's logical as you say. L2V was about 50% at the time, so they had absolutely massive cover. Mis-sold it is. I'll see what DJ calls it and let you know - thanks for your help.

[caro]

Just to make sure I've understood this properly, are you saying that the amount of the charge on the property was not going up, but when the mortgage provider insisted on consolidating in the new mortgage you, of course, had to pay interest?

 

If so, it certainly seems that they weren't acting in your best interest.

[andrew1]

Just to make sure I've understood this properly, are you saying that the amount of the charge on the property was not going up, but when the mortgage provider insisted on consolidating in the new mortgage you, of course, had to pay interest?

 

If so, it certainly seems that they weren't acting in your best interest.

 

Only the first charge ie; the total of the mortgage loan once they gave me the £92.8k The other 2 charges ( caution and charge) were dispensed with. I have paperwork showing I only requested a £55k further advance, by the time I'd finsished negotiating I had a £92.8k Further advance because of their conditions to lending anything at all. So the mtg I had prior to the request at all had now gone up a further £92.8k. I wanted £55 they insisted it was £92.8 and after my SAR came back details showed they were not happy about my ability to repay.. shows what was going on in their minds.

[gizmo111]

Who were the charges in favour off was it the same people you remortgaged with?

What is it you are hoping to acheive?

[andrew1]

Who were the charges in favour off was it the same people you remortgaged with?

What is it you are hoping to acheive?

 

The charges were not in favour of the mortgager. 1 was a Lloyds bank the other a private cautioner who used to work for me & felt he had a claim.

 

What do I want to acheive? - I want to demonstrate that at a time when their specialised underwriting department were recommending they don't lend me anymore and me asking for £55k, they promptly insisted they increase my borrowing to £92.8k to allow clearance of these two charges/caution. I say they have either mis-sold the additional lending or they have mis constructed the lending, because there are items which, had it been a conventional loan with say GE and they had insisted on clearance of these charges then the agreement would have been a multiple agreement, with both restricted and unrestricted sums of credit which demands a separate agreement for each, not one lump sum agreement. So, I believe that these should have been constructed as loans under the CCA regulations. They had their first charge, at the very least they could possibly have left the 2nd charges and increased my mtg without having to free those charges. SO I want to try to get them to acknowledge that in court. The rest will follow in accordance with the CCA if I achieve that. I've got to go because my case is at 2pm so I can't really add to this now - time is short. But thanks.

[caro]

Good luck.

[andrew1]

Good luck.

 

I don't need luck, I've got CAG and the Cabot Fan Club in there with me. Luck doesn't come into it

[caro]

I don't need luck, I've got CAG and the Cabot Fan Club in there with me. Luck doesn't come into it

 

My mistake, lol.

[elizabeth1]

I don't need luck, I've got CAG and the Cabot Fan Club in there with me. Luck doesn't come into it

 

nuff said !!!

[andrew1]

...and they certainly served me proud! Thank you everyone.

 

The case stemmed on me challenging the rights of the mtg provider to increase the further advance we asked for of £55k up by another £37k so as to clear a 2nd charge and a caution when the sar information we received stated that "we strongly recommend the loan (@ £55k) did not go ahead. 2 days later they upped it to £92k by including these other items.

 

I argued this should be treated as CCA regulated loans treated as restricted use credit / the cash part as unrestricted use credit and the whole agreement as a multiple agreement. Be interesting to hear the banks response.

 

The hearing was suspended until after Christmas, allocated 30 minutes and in multi track

I was asked if I understood the various tracks and said yes your honour, small claims would suit me fine, NO WAY - Multi track, your questioning the unenforceability of some £52,000 err no your honour it's actually £92,800

 

So there it ended, postponed hearing Claimant to serve (Being Mtg Provider as they issued proceedings I was defendant) by 10th December their response to my defence, new hearing in the new year . Can't complain. What I have to do now is clue myself up fully with the CCA regs and learn a bit about the mortgage side. Claimants solicitor asked for same judge to hear claim and said cca wasn't the most favourite law. Still, that could work in my favour. No doubt I'll be talking this over with a number of people her-on-in. But thanks everyone, you were all in there with me today and it made me feel unstoppable. Any questions fire away.

[tomterm8]

...and they certainly served me proud! Thank you everyone.

 

The case stemmed on me challenging the rights of the mtg provider to increase the further advance we asked for of £55k up by another £37k so as to clear a 2nd charge and a caution when the S.A.R - (Subject Access Request) information we received stated that "we strongly recommend the loan (@ £55k) did not go ahead. 2 days later they upped it to £92k by including these other items.

 

I argued this should be treated as CCA regulated loans treated as restricted use credit / the cash part as unrestricted use credit and the whole agreement as a multiple agreement. Be interesting to hear the banks response.

 

The hearing was suspended until after Christmas, allocated 30 minutes and in multi track

I was asked if I understood the various tracks and said yes your honour, small claims would suit me fine, NO WAY - Multi track, your questioning the unenforceability of some £52,000 err no your honour it's actually £92,800

 

So there it ended, postponed hearing Claimant to serve (Being Mtg Provider as they issued proceedings I was defendant) by 10th December their response to my defence, new hearing in the new year . Can't complain. What I have to do now is clue myself up fully with the CCA regs and learn a bit about the mortgage side. Claimants solicitor asked for same judge to hear claim and said cca wasn't the most favourite law. Still, that could work in my favour. No doubt I'll be talking this over with a number of people her-on-in. But thanks everyone, you were all in there with me today and it made me feel unstoppable. Any questions fire away.

 

Does anyone actually know what the prescribed terms for fixed credit restricted use credit actually are? it doesn't come up that often.

 

Congratualtions... it seems you haven't lost (yet)... now time to hire a b***dy good barister, you know it makes sence;)

[Bona]

Great news keep at it I know what it is like to me a very small fish i a very big pond with lots o sharks about

[andrew1]

Does anyone actually know what the prescribed terms for fixed credit restricted use credit actually are? it doesn't come up that often.

 

Congratualtions... it seems you haven't lost (yet)... now time to hire a b***dy good barister, you know it makes sence;)

 

I can't afford one, I'll have to wing it, but I've got time to learn and I am good when I get the bit between my teeth. Bringing back memories of when I ran my bigger business. I'll have to come back for more info though like what the heck is multi track? and fine tuning the cca with mortgages. It can be done, it's just knowing the detail. I'm sure it can. That's not for today though. I've had enough for one day, but thank you everyone. This might be useful for many more, but I want to get things right with my friends in the Cabot Fan Club, who have been absolutely brilliant in putting this together, and the people on here. Every little bit of information you guys supplied, be it speculative or otherwise is soo helpful. Aktiv popped that little gem of the land registration Act in - I'd never heard of it, but it carried a point in the court room and that's what it's about. I know you people are not lawyers, you guys are better than lawyers( Zootscoot excluded - she's extra special!) because what you give is honest opinion, without prejudice, without want or gain, without anything other than wanting to help - That my friends is what makes this whole forum so special.

 

I'll be back tapping for information and testing your brain cells again, but for the time being - THANK YOU . All of you.

 

 

Sarah.

[tomterm8]

Um... multi-track is very, very, very expensive, that is what multi-track means to me:( ... it's almost like being in the high court.

 

Does your mortgage have an indemnity clause?

[Bona]

look I cant promise but i ( didnt know this till last week ) i have a kid i teach whos father is a barister in conyract law if you give me persific questiona I amy be able to ask him.

 

I went to a guy in london who gave me great advice against gmac i am still folowing it softley softley it cost me 600 but if I had lost it would have cost me thousands I stll havnt won but I know what is a goer and what is a waste of time sometimes a pound spent know saves hundreds later

[andrew1]

Been to high court before - not phased by that, but mortgage indemnity, not sure what you mean?

 

Actually, as I'm broke just now, I might get away with some fees mighten I?

 

Actually, I am defending a repossession order that the bank applied for. I don't see why I should have to pay high fees in defending myself against their claim. I just siad what had happened and the judge thought I was counter claiming. I said, well not quite , I'm just saying that I was asked if the figures were correct regarding the outstanding arrears and told them that that would depend on how the defence I put forward was viewed by the court and that is what I would like the court to do, rule on my defence... kinda threw the DJ!

[Bona]

All costs have to be reasonable weather you ahve an indeminity clause or not we have got a lot of costs back and we are stll not finnishedi

[andrew1]

...but what is and where do I find this 'indemnity clause' Bona? Indemnity of what?

[gizmo111]

There is a little bit here, but basically it means you are liable for their costs under this clause. It'll be in your mortgage T&C somewhere.

Which mortgage co is it?

[Bona]

in your mortgage terms and conditions there is more than likley a clause that says that you indemnify them for there costs.

 

Ok BUT the costs have to be reasonable we have fought for two years in the High cout over our possession order as I understand it we have made case law this cost us and we have a court order in the high court for a costs assesment we say there costs were not reasonable the Master as at today has awarded us back a considerable amount a further hearing is in jan and allthough we have an indeminity clause they ahve had the

costs reduced.

[gizmo111]

The costs have to be reasonable, but lawyers are expensive, the ERC cases that were lost went into 000's under the indemnity clause. Most mortgages and secured loans have this, and I would be surprised if Andrew's hasn't.

[andrew1]

Is this something or anything like mine bona or something we can look at publically yet? This is all beginning to interest me and as I said earlier, every single bit of new information is so helpful on here. Thanks

[tomterm8]

The costs have to be reasonable, but lawyers are expensive, the ERC cases that were lost went into 000's under the indemnity clause. Most mortgages and secured loans have this, and I would be surprised if Andrew's hasn't.

 

Personally, If I were the judge I would have sympathy with them on an argument that this is an case of national importance, that would have very substantial effect on their business (since it is quite possible that there are tens of millions of pounds of similar agreements), in which case reasonable costs might very well reach into the tens of thousands.

[Bona]

I understand it has been registered as case law gizmo as far as I am aware the costs wernt challenged in the case you mentioned so therefore they have to be paid

in our case having fought repossession for years we appealed that they should not be able tp reposess as we would sell our house ourselves under the Law and property sct we were granted the sale we now believe that this action wa unnecessary as the costs they put on our account were instrumental in the failure of us being able to pay the mortgage