Mortgage Express appoint LPA Recievers Walker Singleton to scare tenants off!

[patrickq1]

sorry been in wolverhapton for a few days was only able to get on for half an hour the other day ,kept getting booted of net so i gave up...

have a look at this though part of the new rules and regs for lenders and landlords, it may even help (SLIGHTLY EVER SO)

New rules on lenders repossessing dwelling houses

Shortly before dissolution the last parliament passed the Mortgage Repossessions (Protection of Tenants etc) Act 2010. It deals with the situation where a landlord has mortgaged their property and grants a tenancy without obtaining the lender's consent. The landlord later defaults on the mortgage and the lender begins proceedings to sell the property. The Act intervenes where a lender has obtained a possession order and now wishes to take possession of the dwelling. It obliges the lender to serve a notice on the tenant advising them of their rights under the Act. A tenant can request the lender to delay enforcing the possession order so they can find alternative accommodation and avoid homelessness. If the lender refuses, the tenant can apply to court to ask it to order a delay. The tenant can be required to pay a rent for the period of any delay. The government has published the form of notice which a lender must serve on the tenant. The lender cannot enforce the possession order until fourteen days has passed since it gave the notice. The change comes into effect on 1 October 2010.

[tarquin999]

Thanks patrickq1. Shame it's not already in force!

 

Would this apply to buy-to-let tenants, though? Because the tenancy would have been granted implicitly by the lender (by virtue of it being a buy-to-let mortgage), wouldn't it?

 

It might explain, though, why Allsop have put my properties into an auction only 5 weeks from date of receivership.

 

I've just seen the auction guide prices for the properties - they are BELOW the levels of the offers already made to Chelsea by a fellow property investor (which I arranged), and were declined by Chelsea. If they sell at auction below the level of the offers made to them by my fellow, will Chelsea have a case to answer regarding the shortfalls? Or is it "just one of those things"!?!

[patrickq1]

I've just seen the auction guide prices for the properties - they are BELOW the levels of the offers already made to Chelsea by a fellow property investor (which I arranged), and were declined by Chelsea. If they sell at auction below the level of the offers made to them by my fellow, will Chelsea have a case to answer regarding the shortfalls? Or is it "just one of those things

 

absolutely they will be honour bound to compensate all lossess, you need this in writing though and the refusal, i would use the letter and send it to CHELSEA and remind them you shall sue for all costs by sending the offer and their refusal along with the auction price ,this is what could be classed as NOT TREATING THE CUSTOMER FAIRLY i would also send copies of auction and offer price to the FSA as they now have the buy to let under their remit ,although they have no legal powers they do hold the powers of sanctions and fines against any company who they think is abusing the fairness, look at gmac and kensington they got hammered ,its a shame you could nt put your finger on a buyer (of their choosing ) they want to purchase your properties this would come under the new BRIBERY ACT as a PROMMISE this is classed as BRIBERY ...

but if only you could get to the land registry and put in an objection to sale subject to legal dispute ?

might be worth a try, this would snooker any proposed sale they were thinking of doing also let the auctioneer know that you have registered a legal dispute, but i geuss the auctioneer is in cahhoots ?

patrickq1

[patrickq1]

Would this apply to buy-to-let tenants, though? Because the tenancy would have been granted implicitly by the lender (by virtue of it being a buy-to-let mortgage), wouldn't it?

YES IT WOULD APPLY

[tarquin999]

Thanks patrickq1, I was hoping you'd say that I would be covered.

 

By the way... The auctioneer is Allsop, the receiver is Allsop. Seems a bit of a conflict of interests really! It explains why they would scare away 2 of my tenants... because they (Allsop) will achieve a much easier sale at auction if the property is vacant, and therefore be more likely to receive a commission.

 

I like your idea about registering a Restriction at Land Registry. I will see if one of my chum solicitors can do it. It's a bit of a long shot though - as the solicitor will want to see the evidence of legal dispute - and I doubt I'll receive the "no" letter from Chelsea until after auction - they work at one (slow) speed when *I* want something, then at hyper-speed when *they* want something (they started Receivership a mere 4 days after I missed payment).

[patrickq1]

this forum has gone really **** i cant find anything and the adds on each side is crap i can only read a few words, then on to next line gggrrr

i got something here for all to fill in but it needs to be absolutely based on clear facts.

 

 

Subject = Suspicious transaction reporting

-------------------------------

email = market.abuse@fsa.gov.uk

 

-------------------------------

1. Description of the transaction(s) =

 

SOME ex DIRECTORS OF MORTGAGE EXPRESS ARE DIRECTLEY LINKED TO WALKER SINGLETON,

CHELSEA, AND OTHERS ARE FORCING THE SALE OF LANDLORDS PROPERTIES BY AUCTIONS IS THE

SALES ARE GOING THROUGH FREINDS AND ASSOCIATES

 

IS THIS a fact ?

please enter your factual information

THE WAY WALKER SINGLETON ARE ACTING WITH NO PAPERWORK FOR THE LANDLORDS WS are IGNORING AND refusing to accept a SUBJECT TO ACCESS REQUEST

 

-------------------------------

2. Reasons for suspecting that the transaction(s) might constitute

insider dealing/market manipulation.and BRIBERY ACT 2010 = WITNESS STATEMENTS required

 

WITNESS (1)........................ WITNESS (2)................

WITNESS (3)........................ WITNESS (4)................

WITNESS (5)........................ WITNESS (6)................

-------------------------------

3. Identities of persons carrying out transaction(s). =

 

-------------------------------

4. Identities of any other persons known to be involved in the

transaction(s). =

 

-------------------------------

5. Capacity in which the person performing the transaction(s) acts =

 

-------------------------------

6. Further information which may be of significance

Please enter facts here

[patrickq1]

missed this tar

Which specific aspects do you believe might constitute "gross interference"?

if you are under receivership then all contact and informations and instructions must come through the receiver, if on the other hand you are receiving instructions from both chelsea and allsopps then this is gross interference

patrickq1

[patrickq1]

found this tar on the spml thread

 

 

1)CONTACT THE LAND REGISTRY YOU CAN DO THIS ONLINE https://www.landregistry.gov.uk/wps/...roperty_Search

SIMPLY TYPE IN YOUR POSTCODE AND HOUSE AND PROPERTY SHOULD COME UP,YOU CAN ALSO SEARCH THE REGISTER OF TITLES TO SEE WHAT CHARGES ARE ON YOUR PROPERTY AND WHO OWNS THEM,COST £4

2)IF THE CHARGE IS REGISTERED STILL IN THE NAME OF SPPL.

TAKE IMMEDIATELY THE FOLLOWING ACTION.

3)RING THE LAND REGISTRY WHERE YOUR PROPERTY IS REGISTERED,EMAIL OR FAX THEM.

STATE THAT THE CHARGE REGISTERED IN THE NAME OF SPPL IS BEING TRANSFERRED TO ANOTHER ENTITY AND YOU WISH TO OBJECT TO THE TRANSFER OF THE CHARGE UNDER section 73 of the Land Registration Act 2002 and rule 19 of the Land Registration Rules 2003.

SEE THIS LINK FOR INFORMATION.

http://docs.google.com/viewer?a=v&q=...2hnlTb1inUNpsw THIS GIVES YOU THE EMAIL ADDRESS OF YOUR LOCAL LAND REGISTRY.

4)THE GROUNDS FOR YOUR OBJECTION ARE THAT YOU HAVE A MONETARY CLAIM AGAINST SPPL AND YOU ARE OF THE BELIEF THAT THEY HAVE SOLD YOUR LOAN TO DIVEST THEMSELVES OF THEIR LIABILITIES TO YOU,YOU THEREFORE OBJECT TO THE TRANSFER UNTIL THIS DISPUTE HAS BEEN RESOLVED.

THERE IS A DANGER THAT SPPL WILL BE DISSOLVED LEAVING ALL CLAIMS AND LIABILITIES BEHIND THEM,THEY WERE AND ARE WHOLLY OWNED SUBSIDIARIES OF THE FAILED AMERICAN BANK LEHMAN BROTHERS WHO FILED FOR BANKRUPTCY IN SEPTEMBER 2008 AND IT APPEARS LIKELY THEY ARE SELLING ASSETS AND LEAVING CLAIMS UNSETTLED BEFORE DOING THE SAME.

[patrickq1]

see post 863

 

i am looking at a TORT OF INTERFERANCE AND OTHER CASE THAT LOOK PLAUSABLE WITH REGARDS TO STOPPING ALL THIS CARRY ON WITH mx AND ws AND OTHERS..

Also just awaiting the OFT and FSA come back about my summaries...

the tort of conspiracy, there were three main economic torts: intimidation, unlawful interference and procuring a breach of contract. However, one line of authority had blurred the distinction between procuring a breach of contract and unlawful interference by holding that the original tort of procuring a breach of contract had been extended to a tort of unlawful interference with contractual relations - this is termed the 'unified theory'.

The mortgagor shall be solely responsible for the receiver's acts or defaults unless the mortgage deed otherwise provides. A mortgagee will incur no liability for the actions of the receiver unless the mortgagee can be shown to have actively intervened in the conduct of the receivership (Re: Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410, CA).

Scullion v Bank of Scotlandautolinker.com autolinking image Plc 4

Mr Scullion applied for a mortgage to fund the purchase of a buy-to-let flat. The mortgage company required a valuation and this was carried out by Colleys, now part of Bank of Scotland Plc. The mortgage application form included a disclaimer to the effect that neither the mortgage company nor the valuer would be liable as a result of an inaccurate valuation.

The property was valued by Colleys at £353,000 but subsequently turned out to be worth only £300,000. Mr Scullion sued Colleys for negligence. The court held that Colleys had been negligent and, moreover that they had a duty of care to Mr Scullion. Although the valuation was ostensibly carried out for the benefit of the bank, it was reasonably foreseeable that Mr Scullion would rely upon it rather than seeking an independent valuation. The disclaimer in the application was not sufficient to absolve Colleys of liability. It was unfair for Colleys to disclaim liability for something which should be well within their expertise, particularly where the disclaimer had not been drawn to Mr Scullion’s attention beforehand

[patrickq1]

 

United Kingdom

August 1 2010

This is the second in our series of short articles in which we try to shed light on some of the more confusing areas of the Companies Act 2006 (the "Act"). It looks at the key statutory duties imposed on directors and discusses, among other things, the vexed question of the relationship between section 175 (the duty to avoid conflicts) and sections 177 and 182 (the duty to declare interests).    

The regime

The main provisions in the Act governing directors' duties are sections 170 to 187. Several of the duties - including the duty to exercise independent judgment and the duty to exercise reasonable care, skill and diligence - are relatively uncontroversial. The duties which have attracted the most attention are:

 

• the duty to promote the success of the company (section 172)
  
• the duty to avoid conflicts of interest (section 175)
  
• the duty to declare interests in proposed or existing transactions with the company (sections 177 and 182).
  

Areas of confusion

The duties were codified in order to provide clarity and to make them more accessible to directors. The fact that they are set out in writing in one place is certainly an improvement on the old common law regime, but this is an intrinsically complicated area of the law and some aspects of the statutory regime can give rise to confusion. The following questions, in particular, can present difficulties:

 

• what is the relationship between section 175 on the one hand, and sections 177 and 182 on the other? In other words, when does an interest have to be avoided (or authorised) under section 175, and when does it have to be disclosed under sections 177 or 182?
  
• following on from the first question, what exactly constitutes a conflict of interest for the purposes of section 175?
  
• how far should directors go in recording their compliance with section 172? Is it sufficient to include wording in board minutes? How extensive should such wording be? Are there occasions when in fact compliance does not need to be recorded?
  

Relationship between sections 175, 177 and 182

Perhaps the biggest conceptual difficulty people have with the codified duties concerns the relationship between sections 175, 177 and 182. What, for example, is the position of a director, Mr Smith, whose company is about to buy a property from a competitor company of which he is also a director? Is there a conflict which is prohibited by section 175? Does he have an interest which has to be declared under section 177? Would authorisation under section 175 absolve him from the obligation to declare under section 177?

The conceptual difficulty is easy to resolve: section 175 concerns underlying situations of conflict, while sections 177 and 182 concern specific transactions. Taking the example above:

 

• the fact that Mr Smith is a director of two competitor companies clearly gives rise to a situation of conflict. This brings section 175 into play, and unless he obtains authorisation (from both companies) he will be in breach of his duty to avoid conflicts. Note that the proposed acquisition is not relevant at this stage: the mere fact that he is a director of the two companies gives rise to a section 175 situation of conflict
  
• Mr Smith does not have an interest which has to be declared under section 177 until the proposal to acquire the property is made. At that point - that is, as soon as there is a proposed transaction in which he is interested - section 177 comes into play, and he is obliged to declare the fact that he is a director of the competitor company
  
• since section 175 concerns situations, while section 177 concerns transactions, the fact that Mr Smith had obtained authorisation to be a director of both companies would not free him from the obligation to disclose his interest in the proposed acquisition under section 177.
  

Conflicts caught by section 175

Having established that section 175 concerns situations of conflict, the question arises as to exactly what situations it catches. The situation in which Mr Smith, in the example above, found himself, as a director of two competitor companies, is a clear-cut example of a situation of conflict, but real-life scenarios are seldom as straightforward.

There is no exhaustive list of the situations which give rise to a conflict. The GC100's January 2008 paper on conflicts contains a non-exhaustive list which is very helpful as a starting point when considering whether a particular scenario gives rise to problems, but ultimately a director must apply his mind to the specific facts of the case and ask himself whether the situation is one "in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company" (section 175).

There is no magic about applying this test. Directors simply need to look at all the facts and consider whether, as a matter of common sense, they may have an interest which in any way diverges from the company's interests. For example, a director whose wife owns shares in a competitor company will normally have an indirect interest in the competitor company doing well, and such an interest would clearly conflict with his interest in his own company's success.

We often come across the scenario of a group structure in which the same director serves on the board of several subsidiaries. The safest approach here is to assume that such directors are in breach of section 175 unless they have obtained authorisation. Although the companies are, in a sense, all being operated in the interests of the ultimate parent, there may nevertheless be situations in which their interests in relation to a particular matter are not identical. This will be the case where, for example, one group company makes a loan to another group company. The fact that such conflicts may arise is sufficient to bring the situation within the scope of section 175.

Compliance with section 172

Section 172 requires a director to act in such a way as to promote the success of the company, and in so doing to have regard, among other matters, to six specified factors, including the long-term consequences of the act and the interests of the company's employees.

Where directors are taking decisions of substance at board meetings, the best approach to demonstrating compliance with the duty is as follows:

 

• for large companies (including listed companies and large private companies), compliance should be recorded both in the board papers prepared before the meeting and in the minutes. The board papers should include a full discussion of the act in light of the six factors specified in section 172. It will normally be sufficient for the minutes to include a resolution that entry by the company into the transaction (and the necessary documents) would promote its success; they should refer expressly to the six mandatory factors only to the extent that any of them are particularly relevant on the facts
  
• small companies will not normally prepare board papers, and it will be sufficient for them to follow the approach to the minutes set out in the bullet point above.
  

Where decisions taken at a board meeting do not concern matters of substance - for example, where they deal with simple administrative matters - there is often no need to record compliance. After all, compliance is not recorded in relation to most day-to-day decisions taken by individual directors, and such decisions are no less subject to the statutory duty than decisions taken at board meetings. The mere fact that a decision is taken by the board does not, in itself, mean that it is sufficiently important that the duty has to be dealt with expressly. The question to consider is: might the directors ever need to justify their decision to the shareholders? If the answer is "no", there is no need to record compliance. If the answer is "yes" (as it will be where the decision concerns a matter of any substance), or if there is any doubt as to the answer, compliance should be recorded.

[patrickq1]

United Kingdom

January 20 2010

In a blow to administrators that will surely impact on the timings of any administration, most particularly those involving a large property portfolio, HHJ Purle, sitting in the High Court, has handed down a decision that will have ramifications potentially as serious as those of Re Trident Fashions for administrators in considering how long to remain in office, or indeed whether to accept an appointment at all.    

In the (regrettably somewhat hurried) decision of Goldacre (Offices) Limited v Nortel Networks UK Limited (in Administration) [2009]EWHC 3389 (Ch), the Court has held that an administrator was liable to pay in advance a full quarter's rent contractually due under a commercial lease as an expense of the administration pursuant to Insolvency Rule 2.67, notwithstanding that the administrators were only occupying a small part of the premises, the majority of which were sublet or unoccupied. Further, the Court held that the administrators would remain so liable for so long as the administrators retained the use of any part of the premises, no matter how small. The even more worrying inference from the decision is that, wherever a company in administration trades from a let premises, the administrators will be liable to meet as an expense of the administration all liabilities arising under the lease during that period, unless they have managed to negotiate a concession with the landlord.

Landlords will be given a significant fillip by this decision, as the case could be seen as reversing a recent judicial trend in favour of administrators over the proprietary rights of landlords and will no doubt strengthen a landlord's position in their negotiations with the administrators of an insolvent tenant.

The Facts

The tenant company occupied premises in Harlow pursuant to two long leases entered in to by the company prior to its insolvency. The administrators were using part of the premises for the purposes of the administration and rent had been paid for the September quarter, albeit late. Parts of the premises were sublet and the landlord had taken the step of serving s. 6 Law of Distress Amendment Act 1908 notices on those subtenants, to require them to pay the sub-rents direct to the landlord.

The question before the Court was to what extent the relatively minor use that the administrators were making of the premises rendered them liable to pay future rents contractually due under the leases.

The Decision

The Court decided that the administrators were liable to meet the full quarter's rent in advance as an expense of the administration in accordance with the terms of the lease and would remain so until they completely vacated the premises. Although the rents ranked as an expense of the administration, this did not necessarily entitle the landlord to receive payment as and when the rents fell due in all cases but in this particular case, since there were sufficient funds in the administration, the Court held that it was appropriate for the administrators to discharge this expense on an ongoing basis as it fell due.

HHJ Purle was influenced in his reasoning by the 2007 High Court decision in Exeter City Council v Bairstow (more commonly referred to as the Re Trident Fashions decision), which held that business rates ought properly to be met either as an expense of the administration pursuant to either IR2.67(1)(a), being an expense properly incurred by the administrator in performing his functions in the administration, or as a necessary disbursement incurred by the administrators in the course of the administration, pursuant to IR2.67(1)(f). In either case, these expenses rank ahead of the administrators' own remuneration.

HHJ Purle was also influenced by what is commonly referred to as the "salvage principle" or the "Lundy Granite principle", which established that liquidators are liable to pay rent as a liquidation expense where the liquidators make use of, or retain possession of, leasehold properties for the benefit of the liquidation.

The important distinction to note from HHJ Purle's reasoning is that the Court was not, in establishing that principle, saying that rent in and of itself is an expense, since it is properly a contractual liability that the company incurred at the time it entered into the lease for the whole of the lease term. What the principle establishes is that, where a liquidator is using the premises for the purposes of the liquidation, it is just and equitable to treat that rent liability as if it were an expense of the winding up and accord it the same priority.

HHJ Purle then considered the wording of IR4.218 (liquidation expenses) and IR2.67 (administration expenses) and concluded that there was no practical distinction between the two and therefore the Lundy Granite principle was equally applicable to administrations as it was to liquidations.

HHJ Purle, relying on the recent decision in Lehman Brothers International (Europe) Limited [2009] also concluded that, for the purposes of IR2.67(f) a "necessary" disbursement would include any payment to a party that ought to be made in fairness (in circumstances where a counterparty's rights had been prejudiced by the administration) and that it was not necessary for that counterparty to have threatened legal action to render a payment "necessary" . As such, in the case of a landlord, it was not required that a landlord should first have sought permission to commence forfeiture or distraint proceedings to render a rent payment a "necessary" disbursement for the purposes of IR 2.67.

The administrators sought to argue that 1) there is a public policy argument that holding rent as an expense undermines the rescue culture intended by the legislation and 2) that, although administrators could not expect to have the use of premises for free, the payments ought to be tailored to the use actually made by the administrators.

HHJ Purle rejected both of these arguments, reasoning that 1) the Lundy Granite principle arose in circumstances where liquidators were commonly trading businesses and so in that regard, modern administrations were coming to resemble liquidations and the Court had clearly felt, in establishing that principle, that it did not run contrary to achieving the purposes of the liquidation; and 2) that, following the reasoning in Powdrill v Watson [1995], where a liquidator was deemed to have adopted a contract, he was liable for all liabilities arising under that contract.

These are two very worrying conclusions for Administrators.

The first ignores the fact that liquidators have the ability to disclaim onerous property, whereas an Administrator does not, and runs contrary to the reasoning in the well known decision of Re Atlantic Computer Systems plc [1992], where the Court of Appeal concluded that an administration is more akin to a receivership than a liquidation.

The second conclusion is even more worrying, since the corollary of this must be that if rent is payable as an expense and the Administrator is deemed to have "adopted" the lease contract, then this would potentially render the administrators liable for any and all claims arising under the lease during the period of their occupation as an expense of the administration. This conclusion is supported by HHJ Purle's approval of the decision in Re Levi & Co Ltd [1919], where a liquidator was held liable to meet a dilapidations claim as a liquidation expense (a decision also previously approved in Powdrill v Watson).

A landlord's remedies under the lease are, in essence, only a contractual remedy flowing from a pre-insolvency contract. Why should a landlord be preferred ahead of other unsecured contractual creditors, whose claims rank only as an unsecured claim against the company?

There is judicial conflict between the flexible, discretionary approach to expenses adopted in Re Atlantic Computer Systems Plc and the more prescriptive approach adopted by the House of Lords in Re Toshuku Finance UK Plc [2002]. The conflict centres around whether, and to what degree, the question of what constitutes an "expense" for the purposes of an administration is a matter of judicial discretion. In this decision, HHJ Purle (it is submitted quite properly) prefers the prescriptive approach adopted by the House of Lords in Re Toshuku Finance and followed in Re Trident Fashions, that the Court has no discretion in deciding what should, or should not, be an expense. The question of what constitutes an "expense" or a "necessary disbursement" of the administration is a question only of judicial interpretation of the proper construction of the wording of para 99 and Insolvency Rule 2.67. It is not for the Courts to second guess the legislators on this point and to determine on a case by case basis whether it is appropriate that a particular liability should rank as an expense in any particular case.

Looking specifically at the position of a landlord, following this reasoning the Court's discretion is not as to whether the rent ranks as an expense in any particular case. This is a question that is determined under IR 2.67 as a matter of construction. The Court's real discretion lies in whether it should permit the landlord to exercise a particular remedy to recover that expense immediately (e.g. permit forfeiture, or distraint or to commence proceedings), or whether the landlord should have to wait to receive payment in due course, along with all other creditors. In determining this, the correct approach is still to apply the "balancing act" test laid down in Re Atlantic Computer Systems Plc.

The conclusion from this is that HHJ Purle has determined that in circumstances where an Administrator makes use of any part of a leasehold premises during the course of the administration, all lease liabilities accruing during that period, including (but not limited to) rent, are in all cases deemed to rank as an expense or necessary disbursement of the administration on a proper construction of IR 2.67, in the same way that liability for rates was determined to be an expense or necessary disbursement of the administration in Re Trident Fashions.

The latter decision necessitated urgent legislative clarification to alleviate the burden on administrators. We can only presume that, if Parliament did not intend that such lease liabilities should receive such priority in all cases, then this too will require urgent clarification, to prevent landlords from effectively receiving preferential status for what had previously been presumed to be only an unsecured claim against the company in administration.

HHJ Purle did consider the impact of the recent Court of Appeal decision in Innovate Logistics Ltd v Sunberry Properties Ltd [2009]. HHJ Purle distinguishes this important pro-Administrator decision by concluding that the main point under appeal was the question of when is it appropriate to lift the statutory moratorium to allow a landlord to exercise its proprietary remedies, rather than the status of the rent due under the lease.

In the Innovate case, LJ Mummery said [at para 59] the landlord "does not have an absolute legal entitlement to be paid contractual rent and interest as an administration expense. On this point the court has a wide discretion exercisable according to the circumstances of the case." Administrators have relied on this decision to considerable effect in negotiations with landlords, to reduce the insolvent tenant’s rent liability.

HHJ Purle however concluded that he was not bound to follow this flexible approach, on the basis that the parties in the Innovate case had both accepted that the landlord was not automatically entitled to be paid the rents reserved in the lease on a contractual basis during the period of occupation by the company in administration. On the basis that the Court of Appeal had not been asked to adjudicate on this point, HHJ Purle was not bound to accept the same position.

Further, HHJ Purle concluded that, if the effect of the Innovate decision was to oblige him to exercise a discretion to determine how much rent it would be fair for the administrators to pay in this case, then he would exercise that discretion to conclude that, on the facts before him, it was fair for the administrators to pay the whole of the rents falling due on the December quarter date. This was based on evidence from the landlord's surveyor that, for so long as the company in administration occupied any part of the premises, there was no realistic possibility of maximising the return from the remainder of the premises, as it would adversely impact on the ability to re-let or develop the premises. On this basis, HHJ Purle did not consider it appropriate to order that the administrators should only pay an apportioned rent for that part of the premises the company was actually using.

Further, in interpreting the Innovate decision, HHJ Purle, relying on the House of Lords decision in Re Toshuku Finance reasoned that, although the Court may have a discretion as to whether or not to allow a landlord to commence forfeiture proceedings or exercise distraint, it has no discretion to declare something to be or not to be a liquidation expense or, by extension, an administration expense under IR2.67.

There is a crumb of comfort for administrators. HHJ Purle recognised that the fact that rent is an administration expense does not then automatically oblige the administrators to pay it when it falls due under the lease. It is a matter for the administrators whether they pay such expenses as they go along, depending on the assets available and other commercial factors. Following the above reasoning, it is then a matter for the court to determine whether it would be appropriate for a landlord to be allowed to take enforcement action if the administrator is not meeting rent payments when they fall due, still applying the Re Atlantic Computers Systems plc balancing act test in reaching such a decision.

HHJ Purle concluded by saying that, for so long as the administrators occupied any part of the premises, the whole of the rents falling due under that lease will continue to be payable as an administration expense quarterly in advance, until such time as the administrators vacate those premises entirely. At the point the administrators vacate, the rent will cease to be payable as an expense. HHJ Purle makes no comment on whether the administrators would be entitled to any rebate for an advance payment in such circumstances but following the above reasoning, one presumes this would not be his intent.

Practical implications for administrators

The decision has a potentially very significant impact for administrators on their pre-appointment planning, particularly on the timing and duration of administrations. The potentially open-ended exposure to liability under existing leases as an expense will make cash-flow and trading forecasts less accurate and prediction of potential recoveries less certain. Administrators should also take advice early on (ideally pre-appointment) on the terms of any leases that are in place, to help better understand their potential exposure on appointment.

 

1. Timing of appointment
   

In terms of timings, administrators may wish to consider the following:

 

• • Following the logic of the decision, if an administrator takes up office after a quarter day (or other rental trigger date in the lease), the rent liability has already accrued and therefore should rank only as an unsecured claim against the company in administration. The liability to meet rent as an expense will not accrue until the next rental trigger date in the lease. If rent is payable quarterly in advance and an administrator is only in occupation for two months, then they ought, in line with Nortel, to be able to argue that their liability is only to pay rent as an expense for the two months that they actually occupy the premises.
  
• If, as is commonly the case at the moment, a landlord has granted an informal concession to a tenant that rent can be paid monthly rather than quarterly, an administrator cannot count on benefitting from the same arrangement on taking up office and the landlord may insist upon it full contractual entitlements as an expense of the administration.
  
• If the administrators grant a licence to occupy to a Buyer of the business, they will need to give careful consideration as to whether that licence period will straddle a rental trigger date. If so, there will need to be provision made for the whole of that rent period to be paid. Ideally, this is a cost that would be passed on to the Buyer but this is ultimately a point for commercial negotiation.
  
• Before accepting appointment, the administrators should look to identify which premises will be required for the purposes of the administration and wherever possible seek to have the company clear out of any surplus premises prior to appointment, to minimise exposure to liability in respect of those premises.
  
• In appropriate circumstances, the administrators should consider applying to the Court to exercise its powers to vary the order of priorities of expenses, pursuant to IR 2.67(3), to limit or postpone the landlord’s entitlement to rent.
  
• The period between filing a notice of intention to appoint and making the appointment is an ideal opportunity to try and reach a commercial settlement with a landlord as to the extent of liabilities that will be met post-appointment. Proposed administrators of a distressed company may not, from a tactical point of view, want to have to negotiate with landlords before being appointed without the protection of the moratorium, as the risk of the landlord taking unilateral action to frustrate the process is just too great. Equally though, if they enter into office and no agreement has been reached, landlords will seek to rely on this decision as entitling them to receive their full contractual entitlements under the lease as an expense and if this is not agreed to, actions by the landlords for a declaration to this effect and/or an order lifting the protection of the moratorium are ever more likely. This greatly weakens the administrator's negotiating position once in office.
  

It remains the case that how much rent an administrator will pay for temporary occupation remains primarily a point for commercial negotiation between the landlord and the administrators. This decision will, however, lead some landlords to conclude that they are entitled to demand a full quarter's rent in advance and this case potentially represents a shift in power away from administrators and towards landlords in such negotiations. If this is true, then in circumstances where the rental liability is significant, it will be critical for administrators that they reach a legally binding agreement with landlords as to how rent will be dealt with before taking up office, or at least ensure that the rent has been paid in advance before they take up office. This marks a move back to the way this issue used to be dealt with in old-style administrative receiverships, which gives the landlord a bigger seat at the negotiating table and arguably goes against the benefits that were conferred by the provisions in para 44 Sch B1 that extended the statutory moratorium to prevent a landlord from exercising its powers of forfeiture or distraint in an administration.

Pre-packs/business sales

In a pre-pack situation, where the Buyer of the business is allowed into occupation under licence, the Buyer will doubtless have been asked to indemnify the administrators against all lease liabilities for the duration of the licence. If that licence period straddles a rental trigger date under the lease, the administrators will need to provide for the rent due for that whole rental period, not just the licence period.

Administrators will now need to be far more proactive in ensuring payments due under the licence are made and made upfront if possible, preferably via the administrators. They will also need to monitor more closely the actions of the licensee whilst in occupation, to identify any potential liabilities incurred that may now be considered to rank as an expense of the administration.

As a separate point, following on from the recent success in using CVAs to assist distressed retail businesses, this decision will surely act as an added incentive for businesses with large property portfolios to more seriously consider a CVA instead of an administration as the best way to restructure their business.

What does “retain or use any part of the premises” actually mean?

A serious question mark will now also hang over when an administrator can be truly said to have vacated a premises. Usually, when an administrator decides the premises are no longer required for the purposes of the administration, they will simply write to the landlord and advise them of this, without taking any particular steps to clear the premises of detritus or to reinstate the premises. Any claims flowing from loss incurred by the landlord in remedying these breaches of the lease would normally be considered to rank only as an unsecured claim. Now, though, if the administrators are to be deemed to have adopted the lease, there is an argument that such costs rank as an expense of the administration.

Also, and potentially of greater significance, if any of the company's items remain on the premises, can the company be said to have truly "vacated", so as to bring to an end the administrator's liability for rent as an expense? An administrator may now face the unpalatable fact that they can no longer simply abandon an unwanted premises but will have to incur costs to physically clear (and possibly reinstate) those premises fully, to avoid incurring ongoing rent liability as an expense of the administration. It is unclear what the effect of third party goods being left on site would be.

On this point there is, perhaps a parallel to be drawn with the position on rates. Following the Trident Fashions decision, statute has since provided an exception to liability for rates in respect of unoccupied premises. Section 65(5) Local Government (Finance) Act 1988 provides that a hereditament that is not in use will be treated as unoccupied if it is only being used for the storage of plant, machinery or equipment used when the premises were last in use or which are intended for use on the premises. Could a similar exception be argued in the case of rent liability? Without the benefit of similar legislation to this effect, an administrator may struggle to successfully argue that a company has truly ceased to use the premises when any company assets remain stored there.

In the face of such arguments from a hostile landlord, this decision has seriously weakened the administrators' position. Administrators will now have to be very careful before deciding to trade a business for any length of time that funds will be available to meet all lease liabilities, not just on a pro rata basis but on a contractual basis, as set out in the lease.

There is a further, more general, issue with placing such an interpretation on IR 2.67. It would flow from this that, were an administrator to make use of anything supplied to the company under contract, by using that item, the administrator would then potentially be responsible to meet all contractual liabilities arising during that period as an expense or necessary disbursement of the administration. The Lundy Granite principle relates to lease liabilities but it is not difficult to see the argument that this should be extended to any obligation or liability incurred whilst an administrator retains any property (of whatever nature) for the purposes of the administration.

The need to move Companies into liquidation and to disclaim such leases as soon as possible is now ever more pressing. Administrators will now face the same difficult trading decisions regarding rent liability that flowed from the decision in Re Trident Fashions concerning rates. Urgent legislative intervention is required to clarify the position if the rescue culture promoted by the Enterprise Act is not to be jeopardised. If it is truly considered that an administration now more closely resembles a liquidation than a receivership, then it must be thought only proper that administrators should be given the same power to disclaim onerous property that a liquidator enjoys

[patrickq1]

1. How to revoke a power of attorney

1.1. General power of attorney

2. Lasting power of attorney (LPA)

3. Enduring power of attorney

 

 

How to revoke a power of attorney

If a person (referred to as the ‘donor’) appoints another person or persons (the 'attorney(s)') to act on their behalf under a power of attorney (POA), their authority to act continues until the power of attorney is revoked. All powers of attorney are revoked by the bankruptcy, death or loss of capacity of a sole attorney. The revocation of the different powers of attorney is described below.

For more information on the attorney and donor’s capacity and the different types of power of attorney, refer to our ‘Power of attorney’ section

 

General power of attorney

The death, incapacity or bankruptcy of the donor or sole attorney will revoke the validity of any general POA. For more information on capacity, see our ‘Power of attorney’ section. General POAs can be revoked by the donor at any time with a deed of revocation. The attorney must also be notified; otherwise the deed of revocation will not be sufficient.

 

Lasting power of attorney (LPA)

The donor can revoke an LPA by notifying the attorney and the Public Guardian whilst having capacity to act (for more information on capacity, see our ‘Power of attorney’ section).A property and affairs LPA is automatically revoked if the donor or attorney becomes bankrupt.

The attorney can revoke an LPA by disclaiming their appointment with a specific form which must be notified to the donor.

 

Enduring power of attorney

An enduring power of attorney can be revoked by the donor at any time before it has been registered with the Court of Protection (see our ‘Enduring power of attorney’ section). The procedure is the same as for a general POA.

If the enduring POA has been registered, the donor must apply to the Court of Protection for confirmation of revocation. The court can also revoke an enduring POA in certain circumstances.

[diddled]

Patrick

 

Do you know what the law is re irrevocable security powers of attorney and the subsequent mental incapacity of the donor. I've been trying to find a definitive answer on this for the last couple of years.

[patrickq1]

i will look but this recent case is sound and deals with a simmallar

United Kingdom

August 13 2010

A will made two months before the death of an elderly woman has been set aside by the High Court after it heard evidence that by 2006, when the new will was made, she was ‘seriously losing her grip’.

The new will left the woman’s entire estate of nearly £400,000 to a traveling hairdresser, who had been her friend for more than 30 years and had set her hair weekly.

The earlier will had been a ‘mirror will’ of one made by the woman’s sister, who predeceased her in 1995. The sisters, who were childless, had lived together for many years and evidence was given that their wills, which were executed in 1991, had been very seriously considered and constituted. They were, in effect, a promise to eachother not to change them in the event that the other sister died first.

Under the sisters’ wills, on the first death the assets of the deceased passed to the other sister and on the second death they were to be distributed amongst the family.

The 2006 will was contested by the family with the result that it was set aside and the friend ordered to give the inheritance back to the family.

An appeal is thought to be highly likely.

[patrickq1]

http://docs.google.com/viewer?a=v&q=cache:GpviwBTMRC4J:www.parliament.uk/commons/lib/research/rp2004/rp04-073.pdf+irrevocable+security+powers+of+attorney+and+the+subsequent+mental+incapacity&hl=en&pid=bl&srcid=ADGEESgyV3aRtUE26lBAmH0NBg_lBfkcaXA-K6S2BA_N-J_NWoJdHGDSWifZ1RqC4uUmKaKE5v_S80iXozYMiNFz0wwM4NnW4Z8D8NM-cKzhnJUClZ6NhGHiTgQUuTKdVG4NxGfIrKAs&sig=AHIEtbTWH3q9GTkNJ06We5mrxFb_RsRyMA

[patrickq1]

An enduring power of attorney can continue in force after the donor becomes

mentally incapable. The regulations covering this form of power are contained

in the Enduring Powers of Attorney Act 1985. This Act came into force on 10

March 1986 and a valid enduring power can only be granted after that date. The

Act is to be repealed in April 2007 when new lasting powers of attorney will

replace enduring powers. Whilst it will not be possible to create new enduring

powers from April 2007, existing powers can continue to operate beyond that

date (for further details see Lasting Powers of Attorney).

A binding enduring power must follow the form specified in the regulations. A

standard form can be purchased from any stationer who supplies legal forms or

from a solicitor. It is now also possible to obtain attorney forms from a number

of internet websites. Alternatively the donor or his or her solicitor could draft a

form based on the regulations.

It is also possible to create enduring powers which are valid whilst the donor is

still mentally capable of managing his or her affairs or to restrict them, subject to

registration requirements, to apply only following mental incapacity. A donor

must also be aged 18 or over to create a valid enduring power.

The Court of Protection

The Court of Protection (The Court) is an office of the Supreme Court of

Judicature and has jurisdiction in England and Wales. The Court’s role is to look

after the interests of individuals who suffer from a mental disorder. This includes

dealing with enduring powers of attorney in the following areas:

• The registration of powers

• Consideration of applications for the Court to approve or authorize a service

or action or activity, which is outside the normal powers of an attorney

• The revocation of powers by a donor.

The Court’s officials are the Master, who is a judge, and Officers of the Court

and supporting staff.

The Public Guardianship Office is the Court’s administrative arm and provides

financial protection services for those not able to manage their own financial

affairs due to mental incapacity.

General Authority

An enduring power with a general authority allows the attorney ‘to do on behalf

of the donor anything which the donor can lawfully do by an attorney’ (see also

Restrictions on Gifting). The authority can relate to all or a specified part of the

donor’s property and affairs. Alternatively, it may simply allow the attorney to

do specified tasks. It is also possible to impose conditions and restrictions to any

general authority.

Examples of acts that could be undertaken with a general authority are:

• Operating the donor’s bank account (including making withdrawals and

signing cheques).

• Buying and selling shares on the donor’s behalf.

• Purchasing and selling property on the donor’s behalf.

There are certain tasks that an attorney is prohibited from carrying out (see

Powers that Cannot be Delegated).

Registration of an Enduring Power

An attorney is required to register an enduring power when he has reason to

believe that the donor is, or is becoming, mentally incapable (see Who can create

a Power of Attorney – Mental Capacity for a definition of mental capacity).

 

There is a set registration process that must be adhered to:

Step One - The attorney or all attorneys, if more than one, must serve notice, to

the donor and at least three of his closest relatives, of his intention to register the

power. Form EP1 has to be used for this purpose.

N.B. During the period between the start of the donor’s mental incapacity and

registration, an attorney’s powers are restricted. His authority to deal with the donor’s

assets and affairs is limited to maintaining the donor or preventing loss to the donor’s

estate.

Step Two - An application for registration of the power (form EP2) must be sent

to the Public Guardianship Office (PGO) within 10 days of serving the final

EP1 notice. This must be accompanied by the original enduring power of

attorney and a registration fee (£120 in January 2005). There is no necessity to

provide any medical evidence unless it a requirement of the power of attorney

itself.

Step Three - If there are no problems then a registration date will be set, which

will be 35 days from the date of serving the final EP1 notice.

Step Four – Anyone who was entitled to an EP1 notice has the right to raise an

objection to the registration of the power. A person may only object if they have

reason to believe one or more of the following applies:

• it is not valid - for example, where the donor did not have the mental

capacity to make a valid EPA

• it no longer applies - this can be the case where the donor has revoked the

power

• the attorney has applied for registration too soon - i.e. the donor is still

mentally capable of handling his own affairs

• the attorney has either committed fraud or put unnecessary pressure on the

donor to make the power of attorney

• the attorney is unsuitable as an attorney (having regard to all the

circumstances and in particular the attorney’s relationship or connection with

the donor).

Supporting documentation should accompany any objection. This could include

medical evidence and letters or statements from objectors or other relevant

parties.

The attorney would be sent a copy of any objection. The PGO will respect the

donor’s wishes to appoint a specific attorney and may reject any objection that it

considers inappropriate.

The PGO may correspond with all parties in an attempt to resolve any issues

but if they cannot reach a clear decision then they can pass it on to the Court of

Protection who will consider arranging an informal hearing. A hearing gives the

attorney and the objectors an opportunity to put their views in person (although

they will often be represented by a solicitor or barrister). The Court will then

decide whether to allow registration or to refuse it.

The Court has the ability to appoint its own receiver, to manage an individual’s

financial affairs powers, if it has rejected the registration of a power and believes that

the donor is not mentally capable of handling his own affairs. It does not have the

option of appointing an alternative attorney.

The Court of Protection has the power to appoint a receiver to manage the

affairs of a person considered to be of unsound mind, under the Mental Health

Act 1983. Where a receiver has been appointed, the Public Trustee has the right

to refuse a subsequent application to register an enduring power of attorney.

Step Five – The original power of attorney will be returned to the attorney with

an official Court of Protection stamp when registration has been agreed.

[diddled]

Patrick

In the absense of an Enduring Power of Attorney Bank chose to rely on irrevocable security powers contained within the mortgage deed.

[patrickq1]

Search lawindexpro for case law on this statute.

This document is for private study purposes only. It is likely not to reflect the law as it stands today. It may be incomplete, and some provisions are likely to have been repealed or amended, and new ones inserted.

 

An Act to make new provision in relation to powers of attorney and the delegation by trustees of their trusts, powers and discretions

Execution of powers of attorney.

1:--

(1) An instrument creating a power of attorney shall be [F1 executed as a deed by] the donor of the power.
(2) . . (3) This section is without prejudice to any requirement in, or having effect under, any other Act as to the witnessing of instruments creating powers of attorney and does not affect the rules relating to the execution of instruments by bodies corporate.

Proof of instruments creating powers of attorney.

3:--

(1) The contents of an instrument creating a power of attorney may be proved by means of a copy which:


(a) is a reproduction of the original made with a photographic or other device for reproducing documents in facsimile; and
(b)contains the following certificate or certificates signed by the donor of the power or by a solicitor duly certificated notary public or stockbroker, that is to say:


(i) a certificate at the end to the effect that the copy is a true and complete copy of the original; and (ii) if the original consists of two or more pages, a certificate at the end of each page of the copy to the effect that it is a true and complete copy of the corresponding page of the original.


(2) Where a copy of an instrument creating a power of attorney has been made which complies with subsection (1) of this section, the contents of the instrument may also be proved by means of a copy of that copy if the further copy itself complies with that subsection, taking references in it to the original as references to the copy from which the further copy is made.

(3) In this section 'duly certificated notary public' has the same meaning as it has in the Solicitors Act 1974 by virtue of section 87(1) of that Act and] 'stockbroker' means a member of any stock exchange within the meaning of the Stock Transfer Act 1963 or the Stock Transfer Act (Northern Ireland) 1963.

(4) This section is without prejudice to section 4 of the Evidence and Powers of Attorney Act 1940 (proof of deposited instruments by office copy) and to any other method of proof authorised by law. (5) For the avoidance of doubt, in relation to an instrument made in Scotland the references to a power of attorney in this section and in section 4 of the Evidence and Powers of Attorney Act 1940 include references to a factory and commission.

Powers of attorney given as security.

4:-

(1) Where a power of attorney is expressed to be irrevocable and is given to secure—


(a) a proprietary interest of the donee of the power; or (b) the performance of an obligation owed to the donee,


then, so long as the donee has that interest or the obligation remains undischarged, the power shall not be revoked


(i) by the donor without the consent of the donee; or (ii) by the death, incapacity or bankruptcy of the donor or, if the donor is a body corporate, by its winding up or dissolution.


(2) A power of attorney given to secure a proprietary interest may be given to the person entitled to the interest and persons deriving title under him to that interest, and those persons shall be duly constituted donees of the power for all purposes of the power but without prejudice to any right to appoint substitutes given by the power. (3) This section applies to powers of attorney whenever created.

Protection of donee and third persons where power of attorney is revoked.

5:-

(1) A donee of a power of attorney who acts in pursuance of the power at a time when it has been revoked shall not, by reason of the revocation, incur any liability (either to the donor or to any other person) if at that time he did not know that the power had been revoked.
(2) Where a power of attorney has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them shall, in favour of that person, be as valid as if the power had then been in existence.
(3) Where the power is expressed in the instrument creating it to be irrevocable and to be given by way of security then, unless the person dealing with the donee knows that it was not in fact given by way of security, he shall be entitled to assume that the power is incapable of revocation except by the donor acting with the consent of the donee and shall accordingly be treated for the purposes of subsection (2) of this section as having knowledge of the revocation only if he knows that it has been revoked in that manner.
(4) Where the interest of a purchaser depends on whether a transaction between the donee of a power of attorney and another person was valid by virtue of subsection (2) of this section, it shall be conclusively presumed in favour of the purchaser that that person did not at the material time know of the revocation of the power if:


(a) the transaction between that person and the donee was completed within twelve months of the date on which the power came into operation; or (b) that person makes a statutory declaration, before or within three months after the completion of the purchase, that he did not at the material time know of the revocation of the power.


(5) Without prejudice to subsection (3) of this section, for the purposes of this section knowledge of the revocation of a power of attorney includes knowledge of the occurrence of any event (such as the death of the donor) which has the effect of revoking the power.

(6) In this section 'purchaser' and 'purchase' have the meanings specified in section 205(1) of the Law of Property Act 1925. (7) This section applies whenever the power of attorney was created but only to acts and transactions after the commencement of this Act.

Additional protection for transferees under stock exchange transactions.

6:--

(1) Without prejudice to section 5 of this Act, where—


(a) the donee of a power of attorney executes, as transferor, an instrument transferring registered securities; and (b) the instrument is executed for the purposes of a stock exchange transaction,


it shall be conclusively presumed in favour of the transferee that the power had not been revoked at the date of the instrument if a statutory declaration to that effect is made by the donee of the power on or within three months after that date. (2) In this section 'registered securities' and 'stock exchange transaction' have the same meanings as in the Stock Transfer Act 1963.

Execution of instruments etc. by donee of power of attorney.

7:--

(1) If the donee of a power of attorney is an individual, he may, if he thinks fit:


(a) execute any instrument with his own signature, and (b)d o any other thing in his own name,


by the authority of the donor of the power; and any document executed or thing done in that manner shall be as effective as if executed or done by the donee with the signature or, as the case may be, in the name, of the donor of the power.

(2) For the avoidance of doubt it is hereby declared that an instrument to which subsection (3) .of section 74 of the Law of Property Act 1925 applies may be executed either as provided in that subsection or as provided in this section.

(3) This section is without prejudice to any statutory direction requiring an instrument to be executed in the name of an estate owner within the meaning of the said Act of 1925. (4) This section applies whenever the power of attorney was created.

Repeal of s. 129 of Law of Property Act 1925.

8: Section 129 of the Law of Property Act 1925 (which contains provisions, now unnecesary, in respect of powers of attorney granted by married women) shall cease to have effect.

Effect of general power of attorney in specified form.

10:-

(1) Subject to subsection (2) of this section, a general power of attorney in the form set out in Schedule 1 to this Act, or in a form to the like effect but expressed to be made under this Act, shall operate to confer:


(a) on the donee of the power; or (b) if there is more than one donee, on the donees acting jointly or acting jointly or severally, as the case may be,


authority to do on behalf of the donor anything which he can lawfully do by an attorney. (2) Subject to section 1 of the Trustee Delegation Act 1999, this section]does not apply to functions which the donor has as a trustee or personal representative or as a tenant for life or statutory owner within the meaning of the Settled Land Act 1925.

[chillinlong]

Hi All,

 

The forums has all changed and taking a little while to get adjusted to it now.

 

Best one I heard today. MX are now not handing properties back even if they are in surplus due to not qualifying MX criteria! My colleuage is really bewildered and cannot understand as to why would they want to keep it in recievership and it is not in arrears.

 

So many questions that I need to figure out is can they hold the properties in recievership if they are not in arrears? The best thing about it they claim that it is because of the recievers great management why there has been no arrears and now gone into surplus but I have been the one managing and repairing etc and doing all the running around and then allowing WS to collect so it looks like I am cop operating with them but they have turned that one around and now they say it is only doing well because of WS actions.

 

They are absolutely taking the micheal and know exactly what they are doing and what they plan to do but tend to take us all for a ride. They keep lying and lying all the time and then pull the plug on you at last minute.

 

Everyone, dont believe a word MX or WS say that they are working with you to get your properties back, they are more trying to cover their own backs in making it look like they are workin with you and then screw it up for you.

 

Cant believe this now and contemplating the next steps after all monies and time spent on trying to resolve.

[tarquin999]

Hi chillinlong. I feel for you.

 

Something must have happened at MX within the last month. Not sure what. I have a large portfolio with MX and, despite my arrears with them *decreasing* each month (almost back below one month now), I received a communication from my account manager saying "I would highlight that Bradford and Bingley are currently very focussed on your portfolio and due to the current low interest rate environment will not allow the arrears situation to worsen without taking receivership or repossession action if required."

They must have received new instructions from their gods?

I would urge that you quickly try again to get your properties back from them, as it seems they are getting tougher. At least they have a precedent of handing properties back - Chelsea don't even give you the chance to get your property back - all of mine are up for auction next week only 6 weeks from Receivership - even though the tenants have always paid on time (my arrears with all my mortgages arose due to bad paying tenants and the associated eviction costs - more than £3k in many cases).

Best wishes.

[chillinlong]

Thanks Tarquin,

 

This was the original plan, however looks like they are getting harder and harder to get back when they can rely on the LPA law to get them out of it.

 

Oh well, back to the drawing board.

 

Thanks again

[tarquin999]

This cavalier attitude of lenders and Receivers beggers belief. They must become regulated and held fully accountable to an authority (e.g. FSA).

 

What does MX stand to gain from you? What does Chelsea stand to gain from me? It sounds like MX are ready to dispose of the property, and Chelsea do that automatically on day one. Ridiculous.

 

If the Receiver sells the property, they will realistically only achieve 50-60% of the property's value at auction. They will then pursue us for the shortfall for 12 years. They're not going to get much of their money back, and we're going to be stuffed too.

 

I believe that if a landlord in Receivership has shown able and willing to recover their position following their "slap" (Receivership... it truly is a "slap", which hurts horribly), then the law should require that the lender offer an affordable "get out of Receivership" payment plan... a "Fresh Start", with no second chances.

 

Of course, if the Buy-To-Let Arrears rules were universally formulated and regulated, I doubt Receivership would be warranted in the majority of cases.

[staurtd]

Hi,

 

Just had been long read of this thread. A little interesting reading.

 

I have 9 properties with WS from MEX. I have 3 with Touchstone from BM Solutions. BM Solutions have actual given 6 properties back to me after they kept them empty for months.

 

I have also had Touchstone sell 4 others and sell creating shortfalls of over 200,000.

 

I am very interested in any action that can be taken as i feel that the actions taken could not have been taken in my best interests by the LPA Touchstone.

[diddled]

I would be interested to know if any MEX victims have challenged MEX and demanded to know what statutory or contractual provisions MEX are relying on to continue receivership over properties that are no longer in arrears.

[patrickq1]

If the Receiver sells the property, they will realistically only achieve 50-60% of the property's value at

auction

. They will then pursue us for the shortfall for 12 years. They're not going to get much of their money back, and we're going to be stuffed too.

the receiver gets paid regardless and usually you will find they run their own auction house thus getting paid for managing paid from the mortgage co and payment by way of commission sales of properties,

the regulation as at this moment in time does not exist, i have found that you need to make a CPR 31.16 REQUEST UNDER 31.16 this way you can ask for the FULL ADIOT TRAIL OF ALL CORRESPONDANCE ALL DOCUMENTS AND MICROFICHE DATA ALSO TO INCLUDE FULL SCREEN PRIN OUTS so if the POA is defective and no doubt that it is then their is a case to answer, chelsea are grossly interfering with the receivers and the landlords as is MX so its time for you all to start this class action...i will send chilli the name of a company who will work pro bono and go for it what on earth have you got to lose, if you do not want to start an action i beleif the best thing you can do is hand over all the keys and declare yourself a bankrupt and that will only be for about 2 years max....

patrickq1