Additional Mortgage Loan and the CCA? Help Pls

[Bona]

Tomterm8 when we sold our house they took thousands from us and I mean we were neatly into 6 figures and we have got back a third of what we have dealt with stll a lot to go

[tomterm8]

Tomterm8 when we sold our house they took thousands from us and I mean we were neatly into 6 figures and we have got back a third of what we have dealt with stll a lot to go

 

Bona, AFAIK, from what you say, there was nothing in your case of national importance... the path you trod has quite extensive case law backing it up. So the costs for the application should have been minimal; i wish you luck with reclaiming what charges / fees you can.

 

I don't really feel with Andrew we are in the same teritory. The implications of the case are huge.

[Bona]

I dont follow your thoughts The appeal court refferd our case back under the law and property act the first time I think this act had been used for about twenty years and this would have reccourse on any reposessions where the defendent has his/her houseon the market it has no implications on andrew s case save to the costs if he is following a route where he may be incurring unreasonable costs

[gizmo111]

Unless I have something totally wrong my understanding of Andrews case is he challenging the enforcability of the loan agreeement, as a defence to his repossesion.

[tomterm8]

I dont follow your thoughts The appeal court refferd our case back under the law and property act the first time I think this act had been used for about twenty years and this would have reccourse on any reposessions where the defendent has his/her houseon the market it has no implications on andrew s case save to the costs if he is following a route where he may be incurring unreasonable costs

 

There are many examples of the courts allowing people to sell their homes instead of creditors; albeit, these go back quite some distance in time, and the law may have become disused by the time you had your case.

 

I simply am not aware of any single instance where the arguments Andrew are raising have ever been brought before the courts, and i would expect the case normally to reach the house of lords.

[caro]

Well I'm very pleased that you are so positive Andrew, but consider the implications of your action very carefully. It would be very interesting to see how this turns out, but in the meantime you risk losing everything. Admittedly you would have lost your house already without a fight, but whether you or the mortgage company sell it, the fact is that you could lose any equity you have in it to pay costs if this goes pear-shaped. I know that I have a tendency to be cautious, but please don't get carried away, and think carefully about whether to continue this fight or amend your defence.

 

I know you are very determined but just take some time to consider if the fight is worth this huge risk.

[zootscoot]

Hi Andrew,

 

I'm not sure that your argument will succeed. My understanding of the CCA 1974 is that the provisions in s.8 are cumulative ie you have to have all three in order to make it a Regulated agreement.

 

 

 

 

8 Consumer credit agreements

 

1) A personal credit agreement is an agreement between an individual (“the debtor”) and any other person (“the creditor”) by which the creditor provides the debtor with credit of any amount.

2) A consumer credit agreement is a personal credit agreement by which the creditor provides the debtor with credit not exceeding [£25,000].

3) A consumer credit agreement is a regulated agreement within the meaning of this Act if it is not an agreement (an “exempt agreement”) specified in or under section 16

 

 

 

 

 

So to amount to a Regulated agreement it must be a 'personal credit agreement' as defined in 8(1) it is then capable of being a 'consumer credit agreement' if it complies with 8(2) and a 'consumer credit agreement' becomes a 'Regulated agreement' if it is not exempt. So you need to satisfy all criteria before it can be a Regulated agreement.

 

 

I read s.11 as providing a definition of a particular type of Regulated agreement, but in order to qualify you would first have to satisfy the requirements of s.8 to establish that a Regulated agreement exists. As the agreement is over 25K it is not capable of being a Regulated agreement of any kind.

 

This is only my understanding of the CCA and do take further advice on this as it is a lot of money at stake.

 

On the issue of multi-track, there are serious cost implications. There are no fixed costs in multi-track unlike in fast track. Multi track claims can be heard in either the County Court or High Court. If High court only barristers or solicitors with extended rights of audience can appear. This can increase costs considerably as the bank are effectively paying two lawyers. Should you lose your claim you are liable for their legal costs. If there is an indemnity clause (most mortgages have them) you may also liable for their legal costs if you win. This may depend on the wording of such a clause.

 

I think your safest option would be to go for a suspended reposession order giving you time to pay off the arrears without incurring expensive legal fees.

 

Sorry I can't offer anything more positive and do take a second opinion to be sure.

 

All the best

 

Zoot

 

 

 

 

 

 

 

 

 

[make them aktiv runners]

The 25K was my sticking point on the other thread. However, I can see Andrew arguing a fair case that it should be 2 CCA's (each is less than 25K).

 

My major concern is why the bank insisted on mortgaging the charges when there was no need to. Andrew, no need to answer directly but here's a couple of other thoughts:

1) Is there a financial link to your bank and Llyods? If so, it is possible they were just trying (at your expense) to ensure payment.

2) Similiar to above, did the private charger have a link to your bank? For example, he may have had debts with them that they effectively used you to ensure payment.

 

I realise on (1) you know how to check. For (2) it is some-what impossible other than an element of possibility (eg did you pay his wages to that bank). If you can create some doubt over the intentions of the bank then there is a small part of the DPA that allows disclosure to a third party (probably limited and as part of judges agreement).

 

Anyway, well done for being brave enough to push the case on. Your arguments must have had some merit for the judge to proceed, so it is something to work on (must consider the weight of it against costs). If I find anything that may be useful I will post, it will be pretty much raw material to work through though as I am definately not an expert.

 

Thanks for the comment, means a lot that some-one who was wary of me also sees positives on different subjects. Honestly my past intentions were to get the facts right in my own head so that I felt advice given to others was fair (I got some information off this site myself and wanted to repay the site by helping).

[andrew1]

Oh feck, what have I started? The Cabot Fan Club goes national :D

 

All I was doing was defending myself, certainly done that in style by the looks of things.

 

Seriously now, I know what the implications are, albeit I wasn't quite expecting all this, maybe my circumstances, which at this very moment I don't want to go live on forum with, may curtail some of the explosion which appears to be likely if I win part of what I have going on, but I'll certainly have to start putting my thinking cap on.

 

AKtiv, there are no connections between the mtg provider, the cautioner or the 2nd chg holder what so ever. They are all separate. All transactions except the overall advance were under £25k short of the the cash which went into my current account of just over £30k.

 

I am really going to have to get things together and collate my documentation, I only did this as a chance tester, riding on the back of something else the Cabot Fan Club are on to, the timing just seemed perfect. For those of you who are worried about me and I thank you for that, as far as the mtg arrears are concerned, I will get that sorted and cleared shortly, it's a relatively minor issue, I just didn't get paid for 6 mths work I did and it screwed up my cash flow, I'll trade my way out again. However, I'm not going to lose the lot being daft, I cannot afford Barristers and all this has been done without the assistance of solicitors, I might be equity rich, but not cash rich so I won't do anything stupid. I'll just sit back and prepare myself for the next hearing after Christmas and if it escalates I can always pull out - I want to test the system - seems like I've got off to a good start!. I'll keep the mods informed although Zootscoot your PM is chocker.. I have PM'd Gizmo though, maybe the MIB's behind the scenes can liaise.

 

I'll try and be as explicit as I can to others and as I've said before, every little bit helps along the way, but forgive me if I don't answer some of the questions directly, as it appears things is gonna get interesting.

 

Aktiv - forgiven!

 

 

Sarah

[caro]

Well at least you're going into this with eyes wide open. No-one knows your circumstances better than you, and whatever you decide I'm sure everyone wishes you well.

[andrew1]

Thanks caro, If it wasn't so serious it would be funny and it's lucky I have a good sense of humour. I do laugh at these situations, because it's just like Bankfodder and Dave when they started the forum, I can imagine the conversations they must have had about taking on the mighty banks. Well just look back and see what has happened since then. We have done it with the DCA's - they won't admit we are making any difference, but when you hear the new head of the CSA going public saying he was going to take on these internet forums which give out wrong advice you know we are making a difference, we are driving them nuts and I love it - they are having to do things legally for the first time in their lives and they HATE being told, hard, self righteous nuts that they are. My situation outlined here above is exactly the same, someone shafting me with the wrongly set up agreement, well shafted might be a strong word, but it was, in my opinion, forced upon me and constructed in the wrong way. I have only found this out recently and it came at an appropriate time to challenge, so too another I have going on under the same principle. If they did it right, within the law, they wouldn't have me on their case, they didn't - so they have. Tough! - now it all depends on what comes back as to whether I take it on or drop it and it's going to depend on who blinks first and I don't wear lashes!

 

 

These next few weeks and months are going to be interesting and I will not be getting stressed over it - these people fortunately don't frighten me, but I know my limitations too and of course I have all you lot

 

Sarah:p

[caro]

I understand where you're coming from, and agree it takes someone with vision and courage to take these things on. I agree BankFodder and Dave have worked wonders, but advice has always been not to take risks, unless you can afford to. It does take courage to take on the banks, but no-one should be a martyr for the cause. Good luck, and yes you will need it, whatever you decide.

[andrew1]

Anyone know what, if any, the situation is with a late filing by my Mtg bank? I was told by the Judge at the hearing on 12 November that they had to file into court for the Judge their defence to my defence (yes that's true) by the 10th December-nothing arrived.

On 13th I received a letter with a copy of a form 'Notice of Change of Solicitor' along with a request for an extension until 4th January which they had also sent to the court. Now, whilst I've been told this is the correct procedure (the Notice form) they were 3 days late in filing a Defence and still haven't despite all the time they've had. So, are there any protocols or repercussions on the bank for not filing when the Judge says so? The bank have ditched their own in-house solicitors for a rather large firm - I've obviously given them something to think about !!

[caro]

I think you need to check this with the court, but I think I might be tempted to ask for the case to be struck out on the grounds that you've defended the case, the claimant has been given time to respond and failed. Trouble with this though, is that it might mean a hearing for the application to strike out, and of course it may not be agreed.

 

You know I'm not an expert by any means, but this is my logic at work and not based on any legal knowledge. Please don't make any decisions based on my ramblings in case it goes belly up as a result.

 

Maybe you should just ask for a new court date now so the hearing can continue.

[andrew1]

Thanks Caro, a gem as usual.. This situation is actually a little different from the norm. I actually WANT the hearing to go ahead as I'm challenging part of the mortgage which should have been treated as a loan, not merged with the mortgage. The Judge asked if I agreed with the figures which were presented by the Finance company as what was currently due on the mortgage (1st Chg) after they filed for repossession. I said " well, if the court finds my defence to their claim for possession is warranted, then No" and effectively I have disputed an increase I had to my mtg to clear debts some years ago which has been lumped into the mortgage rather than treated as a loan. The Judge gave the Finance company until 10th Dec to file a response, put a hold on the repo and suggested a hearing on 25th Feb to decide the outcome. The finance company didn't submit anything by the 10th, but on the 13th the court received this letter from the big firm of solicitors with a notice of change of Solicitors asking for an extension to the filing date until 4th Jan which I thought might have created a 'situation' as the request was 3 days later than when the Judge said the response should have been in. They had had since 12 November - that should have been long enough. I am dying to find out what they are going to say in their response as it tests a few things ( putting it lightly) and it certainly has made them think if they are no longer using their in-house crowd and gone for the big guns. What I want to happen is to find myself in court on 25th Feb and hearing the Judge say I'm right... that'd make my day ,

 

 

Sarah

[Bona]

I have had a case where the plaintiffs have missed every deadline given by the court i Have applied to have them struck out no way says the judge but eventully it came back to haunt them and they lost an appeal against a DJ order the Judge saying there conduct in the case was depolarable ours was exeplary Keep a choronologicall order and you can serve it just before the hearing showing that they are in default otherwise dont waste your money stick with it

[andrew1]

Actually Bona, mine isn't quite like that. They applied for repossession and submitted the usual summons or whatever you call it. I had to attend the hearing (or if I didn't they would have had repossession by default) to defend myself and give reasons. I'd just paid in £10k towards the arrears and it left about £4k to be paid at the time of the hearing so there was no way I was going to let them repossess if I could help it. I had just established the arguments I could and did put forward just before the hearing and I filed my response to their repo claim a little late for them to have done anything about before the hearing. When the Judge asked me if I agreed with the Finance company's statement of what was due I replied that if the court found what I had stated was fact then No I didn't. That was when the Finance company's solicitor said she could not comment there and then as she had had no instruction other than the repossession order which they were prepared at that juncture to recommend a suspended repo so long as I continue to repay the arrears within a certain period. The Judge then directed the solicitor to have the finance company respond to my defence by 10th Dec and then suspended the repossession until the further hearing on 25th Feb. Now my defence was based on the details I listed above and questions the legality of the manner in which the additional lending was taken out a few years ago and the construction of the financial 'package' relating to the separate loans they insisted I repaid. So, I don't want anything 'struck out' , if we get their response as the Judge requested to my defence I can tell what the legal arguments are and the likelihood of challenging it further - that's when I'll decide whether to take this into multi-track, but would have already established whether or not I have them by the goolies.

[Bona]

Well then dont do anything and when they come to court if they havnt replied they will have to adjourn it again as you can defend what you dont know about I suspect you will get the defence eventually if you want to hurry it up write to the new solicitor and ask then if there realise that they have missed the deadline and do they want extra time

[andrew1]

This goes on and on.. I have just received a letter from the finance companies solicitors asking again for even more time. However, they are stating that they will file their response just one week from the hearing date which gives me no time at all to prepare to react to their response. As the Judge put a good three weeks between when the response was lodged into court and the hearing date is there a case for me to ask for the hearing to be delayed further?

 

The solicitors letter says it has taken longer than anticipated to obtain the information needed to address the allegations put in my defence - nice to know I'm making them think hard, but not much consolation to me once they have their own response to respond or prepare my own defence. They are asking for me to agree to the extension, any suggestions on how I might deal with this request?

[caro]

At first I was thinking that you should just agree to this to appear reasonable, but then I thought that you might say that you would prefer the judge to decide as he has given them a timescale and you wouldn't want to inconvenience him if he'd rather deal with it as he's ordered. He'll need time to consider the defence himself.

 

Of course if they don't get the defence in on time you might win by default. How amenable did the judge seem to your case. Have they given a reason why it's taking longer than they've been given? Tough call.

[andrew1]

At first I was thinking that you should just agree to this to appear reasonable, but then I thought that you might say that you would prefer the judge to decide as he has given them a timescale and you wouldn't want to inconvenience him if he'd rather deal with it as he's ordered. He'll need time to consider the defence himself.

 

Of course if they don't get the defence in on time you might win by default. How amenable did the judge seem to your case. Have they given a reason why it's taking longer than they've been given? Tough call.

 

Actually Caro, I made a mistake, I have an additional 3 weeks longer than I thought, sums didn't work in my head this morning, just saw 18th and 25th thought it was the same month in fact it's different months so I have time. However, I believe the reason they want more time is because they have to go out and find more buckets to collect their sweat up in - making em think harder than they thought !!

 

 

Sarah

[elizabeth1]

Actually Caro, I made a mistake, I have an additional 3 weeks longer than I thought, sums didn't work in my head this morning, just saw 18th and 25th thought it was the same month in fact it's different months so I have time. However, I believe the reason they want more time is because they have to go out and find more buckets to collect their sweat up in - making em think harder than they thought !!

 

 

Sarah

 

HA HA HA HA HA HA HA

[andrew1]

Right, the battle must get under way.

 

Recap:

 

Bank filed for repossession, when I was in court I was asked if I agreed with the balance owed and basically said No, not if the court agrees that this further advance should have been constructed under the CCA as a regulated agreement (We'll come back to the fuill issues later) but what I need to know is that the Judge told the bank to go away and consider what I had submitted as it questions the whole process they went to to give the further advance. The solicitors for the bank have replied using CPR 16.7 (2) 16.7 as their reply:

 

(1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.

(2) A claimant who –

(a) files a reply to a defence; but

(b) fails to deal with a matter raised in the defence, shall be taken to require that matter to be proved.

 

(Part 22 requires a reply to be verified by a statement of truth)

 

Which means effectively ' Prove it! '

 

So, can I submit a Section 18 and ask them why they did it this way in the first place? and effectively get them to answer the question themselves rather than dumping the onus back on me to prove? ( I will, but it might be a useful tactic if I can use it)

[Hopeful1]

Wow!

 

I was searching for info on MEAFs and came across your thread. It's certainly a fascinating read. Unfortunately, i'm too useless to offer any legal support, but would like to add a bit more of the moral stuff!!

[caro]

Right, the battle must get under way.

 

Boxing gloves on and ready for action.