Repossession Hearing - Secured Loan With Friend

[Worriedhomeowner2015]

I am really hoping that someone can help as I am struggling to find advice due to the fact that my situation is slightly different.

 

I will try and keep it brief. An individual that I used to work for who I considered a friend loaned me a large amount of money to assist with purchasing my house. What I didn't realise at the time and call me foolish if you like was that this individual was hoping that by assisting me that I would enter into a relationship with him (he is married I might add)

 

Anyway because that did not happen he turned against me and requested that the loan become secured, I completely understood that he wanted security and a year after he loaned me the money his solicitor issued a loan agreement for me to sign. I signed the agreement. The agreement doesn't state repayment terms or a monthly amount to pay just the interest rate of 4 % per annum. We had always agreed that he would wait until I was in a position to remortgage the property and I would release equity and repay him.

 

Fast forward to December 2014 and I received a letter from his solicitor demanding that I repay the amount owed in full within 5 days in line with the agreement. There is not a chance that I could repay immediately. A week later I received a letter stating that the individual would purchase the property and keep me on as a tenant. Given his resentment towards me having him as my landlord would be a nightmare and I can only think that he feels it is away to maintain contact and control.

 

I admit that in hindsight I should not have borrowed the money but I have 2 children and the thought of losing our home is making me ill. I really would like to know what powers the Judge has, the loan is not regulated, the individual will definitely turn up with some hot shot solicitor and I cannot afford to have legal representation. Any advice would be appreciated.

Edited January 10, 2015 by citizenB
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[caro]

Do you have a copy of the loan agreemen that you could post without any identifying information?

 

Do you have a mortgage as well or just this loan against the property?

 

Is there any equity?

[Worriedhomeowner2015]

The agreement is 18 pages long, can you help me by letting me know how to upload it?

 

I have a mortgage with HSBC which is up to date,no missed payments.

 

I have equity of approximately £50,000 that's the figure after deducting the outstanding mortgage with HSBC and the individual

[Worriedhomeowner2015]

DATED 2013

 

 

 

 

(1)

 

- and -

 

(2)

 

 

 

 

 

LEGAL MORTGAGE OVER

 

 

 

 

 

 

THIS DEED dated is made between the following parties :

(1) of ("the Borrower"); and

(2) ("the Lender").

Background:

A. The Lender has agreed to provide the Borrower with loan facilities on a secured basis

B. The Borrower owns the Property

C. This Deed provides security which the Borrower has agreed to give the Lender for the loan facilities

Now it is agreed as follows:

 

1. Definitions And Interpretation

 

1.1 Definitions

The following definitions apply in this Deed.

Business Day a day (other than a Saturday or Sunday) on which commercial banks are open for general business in London and deposits are dealt with in the London Interbank Market;

Charged Property all the assets, property and undertaking for the time being subject to any Security created by this Deed (and references to the Charged Property shall include references to any part of it);

Costs all costs, charges, expenses, taxes and liabilities of any kind, including (without limitation) costs and damages in connection with litigation, professional fees, disbursements and any VAT charged on Costs which the Lender may charge or incur;

Event of Default has the meaning given in clause hereof

Interest Rate 3.5% above the London Interbank Offer Rate subject to a minimum rate of 4%

LPA 1925 the Law of Property Act 1925;

Property the freehold property owned by the Borrower described in Schedule 1;

 

Secured Liabilities The sum of £140,371.97 and all present and future monies, obligations and liabilities owed by the Borrower to the Lender, whether actual or contingent and whether owed jointly or severally, as principal or surety and/or in any other capacity, under or in connection with this Deed together with all interest thereon calculated at the Interest Rate (including, without limitation, default interest) accruing in respect of such monies or liabilities;

Security any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest securing any obligation of any person, or any other agreement or arrangement having a similar effect;

 

Security Period the period starting on the date of this Deed and ending on the earlier of (a) the date on which the Lender is satisfied that all the Secured Liabilities have been unconditionally and irrevocably paid and discharged in full and no further Secured Liabilities are capable of being outstanding and (b) the 2014;

VAT value added tax.

 

 

1.2 Interpretation

In this Deed:

1.2.1 reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force for the time being, taking account of any amendment or re-enactment or extension and includes any former statute, statutory provision or subordinate legislation which it amends or re-enacts;

1.2.2 unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;

1.2.3 unless the context otherwise requires, words in the singular include the plural and in the plural include the singular;

1.2.4 a reference to a clause or Schedule is to a clause of, or Schedule to, this Deed and references to paragraphs are to paragraphs of the relevant Schedule, unless the context otherwise requires;

1.2.5 a reference to this Deed (or any provision of it) or any other document shall be construed as a reference to this Deed, that provision or that document as it is in force for the time being and as amended in accordance with its terms or with the agreement of the relevant parties;

1.2.6 a reference to a person shall include a reference to an individual, firm, company, partnership, corporation, unincorporated body of persons, or any state or any agency of any person;

1.2.7 a reference to an amendment includes a novation, re-enactment, supplement or variation (and amended shall be construed accordingly);

1.2.8 a reference to assets includes present and future properties, undertakings, revenues, rights and benefits of every description;

1.2.9 a reference to an authorisation includes an approval, authorisation, consent, exemption, filing, licence, notarisation, registration and resolution;

1.2.10 a reference to a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

1.2.11 a reference to the Borrower or the Lender shall include its successors, permitted transferees and permitted assigns;

1.2.12 a reference to determines or determined means, unless the contrary is indicated, a determination made at the discretion of the person making it; and

1.2.13 clause, Schedule and paragraph headings shall not affect the interpretation of this Deed.

1.3 Nature of security over real property

A reference in this Deed to a charge or mortgage of or over the Property includes:

1.3.1 all buildings and fixtures and fittings (including trade and tenant's fixtures and fittings) and fixed plant and machinery which are situated on or form part of the Property at any time;

1.3.2 the proceeds of sale of any part of the Property and any other monies paid or payable in respect of or in connection with the Property; and

1.3.3 all rights under any licence, agreement for sale or agreement for lease in respect of the Property.

1.4 Third-party rights

Except as expressly provided elsewhere in this Deed, a person who is not a party to this Deed (other than a permitted successor or assign) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed.

1.5 Perpetuity period

If the rule against perpetuities applies to any trust created by this Deed, the perpetuity period shall be 125 years (as specified by section 5(1) of the Perpetuities and Accumulations Act 2009).

1.6 Schedules

The Schedules form part of this Deed and shall have effect as if set out in full in the body of this Deed. Any reference to this Deed includes the Schedules.

 

 

2. Covenant To Pay

The Borrower shall, on demand, pay to the Lender and discharge the Secured Liabilities when they become due.

 

 

3. Grant Of Security

3.1 Legal mortgage and fixed charges

As a continuing security for the payment and discharge of the Secured Liabilities, the Borrower with full title guarantee charges to the Lender by way of first legal mortgage, the Property;

 

 

4. Perfection Of Security

4.1 Registration of legal mortgage at the Land Registry

The Borrower consents to an application being made by the Lender to the Land Registrar for the following restriction in Form P to be registered against its title to the Property:

"No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by the proprietor for the time being of the charge dated [ ] in favour of referred to in the charges register."

 

 

5. Liability Of The Borrower

5.1 Liability not discharged

The Borrower's liability under this Deed in respect of any of the Secured Liabilities shall not be discharged, prejudiced or affected by:

5.1.1 any security, guarantee, indemnity, remedy or other right held by, or available to, the Lender that is or becomes wholly or partially illegal, void or unenforceable on any ground;

5.1.2 the Lender renewing, determining, varying or increasing any facility or other transaction in any manner or concurring in, accepting or varying any compromise, arrangement or settlement, or omitting to claim or enforce payment from any other person; or

5.1.3 any other act or omission, which but for this clause 5.1 might have discharged, or otherwise prejudiced or affected, the liability of the Borrower.

5.2 Immediate recourse

The Borrower waives any right it may have to require the Lender to enforce any security or other right, or claim any payment from, or otherwise proceed against, any other person before enforcing this Deed against the Borrower.

 

 

6. Representations And Warranties

6.1 Times for making representations and warranties

The Borrower makes the representations and warranties set out in this clause 6 to the Lender on the date of this Deed and the representations and warranties contained in the following sub-clauses of this clause 6 are deemed to be repeated on each day of the Security Period with reference to the facts and circumstances existing at the time of repetition.

6.2 Ownership of Charged Property

The Borrower is the legal and beneficial owner of the Charged Property and has good and marketable title to the Property.

6.3 No Security

The Charged Property is free from any Security other than a charge dated 5 March 2013 in favour of HSBC Bank plc

6.4 No adverse claims

The Borrower has not received, or acknowledged notice of, any adverse claim by any person in respect of the Charged Property or any interest in it.

6.5 No adverse covenants

There are no covenants, agreements, reservations, conditions, interests, rights or other matters whatever that materially and adversely affect the Charged Property.

6.6 No breach of laws

There is no breach of any law or regulation that materially and adversely affects the Charged Property.

6.7 No interference in enjoyment

No facility necessary for the enjoyment and use of the Charged Property is subject to terms entitling any person to terminate or curtail its use.

6.8 No overriding interests

Nothing has arisen, has been created or is subsisting that would be an overriding interest in the Property.

6.9 Avoidance of security

No Security expressed to be created under this Deed is liable to be avoided, or otherwise set aside, on the liquidation or administration of the Borrower or otherwise.

6.10 Enforceable security

This Deed constitutes and will constitute the legal, valid, binding and enforceable obligations of the Borrower and is and will continue to be effective security over all and every part of the Charged Property in accordance with its terms.

 

 

7. Powers Of The Lender

7.1 Power to remedy

7.1.1 The Lender shall be entitled (but shall not be obliged) to remedy, at any time, a breach by the Borrower of any of its obligations contained in this Deed.

7.1.2 The Borrower irrevocably authorises the Lender and its agents to do all such things as are necessary or desirable for that purpose.

7.1.3 Any monies expended by the Lender in remedying a breach by the Borrower of its obligations contained in this Deed, shall be reimbursed by the Borrower to the Lender on a full indemnity basis and shall carry interest in accordance with clause 11.1.

7.1.4 In remedying any breach in accordance with this clause 7.1, the Lender, its agents and their respective officers, agents and employees shall be entitled to enter onto the Property and to take any action as the Lender may reasonably consider necessary or desirable including, without limitation, carrying out any repairs, other works or development.

7.2 Exercise of rights

The rights of the Lender under clause 7.1 are without prejudice to any other rights of the Lender under this Deed. The exercise of any rights of the Lender under this Deed shall not make the Lender liable to account as a mortgagee in possession.

7.3 Lender has Receiver's powers

To the extent permitted by law, any right, power or discretion conferred by this Deed on a receiver may, after the security constituted by this Deed has become enforceable, be exercised by the Lender in relation to any of the Charged Property whether or not it has taken possession of any Charged Property and without first appointing a receiver or notwithstanding the appointment of a receiver.

7.4 Indulgence

The Lender may, at its discretion, grant time or other indulgence or make any other arrangement, variation or release with any person not being a party to this Deed (whether or not such person is jointly liable with the Borrower) in respect of any of the Secured Liabilities or of any other security for them without prejudice either to this Deed or to the liability of the Borrower for the Secured Liabilities.

 

 

8. When Security Becomes Enforceable

8.1 Security becomes enforceable on Event of Default

The security constituted by this Deed shall be immediately enforceable if an Event of Default occurs.

8.2 There shall be an Event of Default if :

8.2.1 the Borrower fails to pay within 5 Business Days after the due date any sum payable by her under this Legal Charge

8.2.2 the Borrower commits any breach of the terms hereof

8.2.3 any representation or warranty made or deemed to be made is or proves to be untrue

8.2.4 an encumbrancer takes possession or a receiver or administrative receiver or manager is appointed of the whole or a substantial part of the undertaking assets rights or revenue of the Borrower or a distress or other process is levied or enforced upon any of the assets rights or revenue of the Borrower

8.2.5 if the Borrower is or is adjudicated or found to be bankrupt or insolvent or is unable or unwilling to pay her debts as they fall due or proposes or enters into nay voluntary arrangement for the benefit of her creditors generally or proceedings are commenced in relation to the Borrower under any law regulation or procedure relating to the reconstruction or adjustment of debts

8.3 Discretion

After the security constituted by this Deed has become enforceable, the Lender may, in its absolute discretion, enforce all or any part of that security at the times, in the manner and on the terms it thinks fit, and take possession of and hold or dispose of all or any part of the Charged Property.

 

 

9. Enforcement Of Security

9.1 Enforcement powers

9.1.1 The power of sale and other powers conferred by section 101 of the LPA 1925 (as varied or extended by this Deed) shall, as between the Lender and a purchaser from the Lender, arise on and be exercisable at any time after the execution of this Deed, but the Lender shall not exercise such power of sale or other powers until the security constituted by this Deed has become enforceable under clause 8.1.

9.1.2 Section 103 of the LPA 1925 (restricting the power of sale) does not apply to the security constituted by this Deed.

9.2 Extension of statutory powers of leasing

The statutory powers of leasing and accepting surrenders conferred on mortgagees under the LPA 1925 and/or by any other statute are extended so as to authorise the Lender and any receiver, at any time after the security constituted by this Deed has become enforceable, whether in its own name or in that of the Borrower, to:

9.2.1 grant any lease or agreement for lease;

9.2.2 accept surrenders of leases; or

9.2.3 grant any option of the whole or any part of the Property with whatever rights relating to other parts of it,

whether or not at a premium and containing such covenants on the part of the Borrower and on such terms and conditions (including the payment of money to a lessee or tenant on a surrender) as the Lender or receiver thinks fit, without the need to comply with any of the restrictions imposed by sections 99 and 100 of the LPA 1925.

9.3 Prior Security

At any time after the security constituted by this Deed has become enforceable, or after any powers conferred by any Security having priority to this Deed shall have become exercisable, the Lender may:

9.3.1 redeem such or any other prior Security;

9.3.2 procure the transfer of that Security to itself; and

9.3.3 settle any account of the holder of any prior Security.

The settlement of any such account shall be, in the absence of any manifest error, conclusive and binding on the Borrower. All monies paid by the Lender to an encumbrancer in settlement of such an account shall be, as from its payment by the Lender, due from the Borrower to the Lender on current account and shall bear interest at the default rate of interest specified in the Facility Agreement and be secured as part of the Secured Liabilities.

9.4 Protection of third parties

No purchaser, mortgagee or other person dealing with the Lender shall be concerned to enquire:

9.4.1 whether any of the Secured Liabilities have become due or payable, or remain unpaid or undischarged;

9.4.2 whether any power the Lender is purporting to exercise has become exercisable or is properly exercisable; or

9.4.3 how any money paid to the Lender is to be applied.

9.5 Privileges

The Lender is entitled to all the rights, powers, privileges and immunities conferred by the LPA 1925 on mortgagees and receivers.

9.6 No liability as mortgagee in possession

The Lender shall be not be liable to account as mortgagee in possession in respect of all or any of the Charged Property, nor shall he be liable for any loss on realisation of, or for any neglect or default of any nature in connection with, all or any of the Charged Property for which a mortgagee in possession might be liable as such.

9.7 Relinquishing possession

If the Lender enters into or takes possession of the Charged Property, it or he may at any time relinquish possession.

9.8 Conclusive discharge to purchasers

The receipt of the Lender shall be a conclusive discharge to a purchaser and, in making any sale or other disposal of any of the Charged Property or in making any acquisition in the exercise of his respective powers, the Lender may do so for such consideration, in such manner and on such terms as it or he thinks fit.

 

 

10. Application Of Proceeds

10.1 Order of application of proceeds

All monies received by the Lender under this Deed after the security constituted by this Deed has become enforceable (other than sums received under any Insurance Policy), shall (subject to the claims of any person having prior rights and by way of variation of the LPA 1925) be applied in the following order of priority:

10.1.1 in or towards payment of or provision for all costs, charges and expenses incurred by or on behalf of the Lender under or in connection with this Deed;

10.1.2 in or towards payment of or provision for the Secured Liabilities in such order and manner as the Lender determines; and

10.1.3 in payment of the surplus (if any) to the Borrower or other person entitled to it.

10.2 Appropriation

The Lender shall not be bound (whether by virtue of section 109(8) of the LPA 1925, which is varied accordingly, or otherwise) to pay or appropriate any receipt or payment first towards interest rather than principal or otherwise in any particular order between any of the Secured Liabilities.

 

 

11. Costs And Indemnity

11.1 Costs

The Borrower shall pay to, or reimburse, the Lender on demand, on a full indemnity basis, all Costs incurred by the Lender in connection with:

11.1.1 this Deed or the Charged Property;

11.1.2 taking, holding, protecting, perfecting, preserving or enforcing (or attempting to do so) any of the Lender's, rights under this Deed; or

11.1.3 taking proceedings for, or recovering, any of the Secured Liabilities,

together with interest on those Costs, which shall accrue and be payable (without the need for any demand for payment being made) from the date on which the relevant Cost arose until full discharge of that Cost (whether before or after judgment, liquidation, winding up or administration of the Borrower) at the Interest Rate

11.2 Indemnity

The Borrower shall indemnify the Lender on a full indemnity basis in respect of all Costs incurred or suffered by any of them in or as a result of:

11.2.1 the exercise or purported exercise of any of the rights, powers, authorities or discretions vested in them under this Deed or by law in respect of the Charged Property;

11.2.2 taking, holding, protecting, perfecting, preserving or enforcing (or attempting to do so) the security constituted by this Deed; or

11.2.3 any default or delay by the Borrower in performing any of its obligations under this Deed.

 

 

12. Further Assurance

12.1 The Borrower shall, at its own expense, take whatever action the Lender may reasonably require for:

12.1.1 creating, perfecting or protecting the security intended to be created by this Deed;

12.1.2 facilitating the realisation of any of the Charged Property; or

12.1.3 facilitating the exercise of any right, power, authority or discretion exercisable by the Lender in respect of any of the Charged Property,

12.2 including, without limitation, if the Lender thinks it expedient, the execution of any transfer, conveyance, assignment or assurance of all or any of the assets forming part of, or intended to form part of, the Charged Property (whether to the Lender or to its nominee) and the giving of any notice, order or direction and the making of any registration.

 

 

13. Power Of Attorney

13.1 Appointment of attorneys

By way of security, the Borrower irrevocably appoints the Lender to be the attorney of the Borrower and, in its name, on its behalf and as its act and deed, to execute any documents and do any acts and things that:

13.1.1 the Borrower is required to execute and do under this Deed; or

13.1.2 any attorney deems proper or desirable in exercising any of the rights, powers, authorities and discretions conferred by this Deed or by law on the Lender

13.2 Ratification of acts of attorneys

The Borrower ratifies and confirms, and agrees to ratify and confirm, anything which any of its attorneys may do in the proper and lawful exercise, or purported exercise, of all or any of the rights, powers, authorities and discretions referred to in clause 13.1.

 

 

14. Release

Subject to clause 1616.3, on the expiry of the Security Period (but not otherwise), the Lender shall, at the request and cost of the Borrower, take whatever action is necessary to release the Charged Property from the security constituted by this Deed.

 

 

15. Assignment And Transfer

15.1 Assignment by Lender

15.1.1 At any time, without the consent of the Borrower, the Lender may assign or transfer the whole or any part of the Lender's rights and/or obligations under this Deed to any person.

15.1.2 The Lender may disclose to any actual or proposed assignee or transferee such information about the Borrower, the Charged Property and this Deed as the Lender considers appropriate.

15.2 Assignment by Borrower

The Borrower may not assign any of its rights, or transfer any of its obligations, under this Deed or enter into any transaction that would result in any of those rights or obligations passing to another person.

 

 

16. Further Provisions

16.1 Independent security

This Deed shall be in addition to, and independent of, every other security or guarantee which the Lender may hold for any of the Secured Liabilities at any time. No prior security held by the Lender over the whole or any part of the Charged Property shall merge in the security created by this Deed.

16.2 Continuing security

This Deed shall remain in full force and effect as a continuing security for the Secured Liabilities, despite any settlement of account, or intermediate payment, or other matter or thing, unless and until the Lender discharges this Deed in writing.

16.3 Discharge conditional

Any release, discharge or settlement between the Borrower and the Lender shall be deemed conditional on no payment or security received by the Lender in respect of the Secured Liabilities being avoided, reduced or ordered to be refunded under any law relating to insolvency, bankruptcy, winding up, administration, receivership or otherwise. Despite any such release, discharge or settlement:

16.3.1 the Lender or its nominee may retain this Deed and the security created by or under it, including all certificates and documents relating to the whole or any part of the Charged Property, for such period as the Lender deems necessary to provide the Lender with security against any such avoidance, reduction or order for refund; and

16.3.2 the Lender may recover the value or amount of such security or payment from the Borrower subsequently as if such release, discharge or settlement had not occurred.

16.4 Certificates

A certificate or determination by the Lender as to any amount for the time being due to it from the Borrower shall be, in the absence of any manifest error, conclusive evidence of the amount due.

16.5 Rights cumulative

The rights and powers of the Lender conferred by this Deed are cumulative, may be exercised as often as the Lender considers appropriate, and are in addition to its rights and powers under the general law.

16.6 Amendments

Any amendment of this Deed shall be in writing and signed by, or on behalf of, each party.

16.7 Variations and waivers

Any waiver or variation of any right by the Lender (whether arising under this Deed or under the general law) shall only be effective if it is in writing and signed by the Lender and applies only in the circumstances for which it was given, and shall not prevent the Lender from subsequently relying on the relevant provision.

16.8 Further exercise of rights

No act or course of conduct or negotiation by or on behalf of the Lender shall, in any way, preclude the Lender from exercising any right or power under this Deed or constitute a suspension or variation of any such right or power.

16.9 Delay

No delay or failure to exercise any right under this Deed shall operate as a waiver of that right or constitute an election to affirm this Deed. No election to affirm this Deed shall be effective unless it is in writing.

16.10 Single or partial exercise

No single or partial exercise of any right under this Deed shall prevent any other or further exercise of that or any other right.

16.11 Consolidation

The restriction on the right of consolidation contained in section 93 of the LPA 1925 shall not apply to this Deed.

16.12 Partial invalidity

The invalidity, unenforceability or illegality of any provision (or part of a provision) of this Deed under the laws of any jurisdiction shall not affect the validity, enforceability or legality of the other provisions. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with any modifications necessary to give effect to the commercial intention of the parties.

 

 

17. Notices

17.1 Service

Each notice or other communication required to be given under, or in connection with, this Deed shall be:

17.1.1 in writing, delivered personally or sent by prepaid first-class letter or fax; and

17.1.2 sent:

(a) to the Borrower at:

 

(b) to the Lender at:

or to such other address or fax number as is notified in writing by one party to the other from time to time.

17.2 Receipt by Borrower

Any notice or other communication that the Lender gives shall be deemed to have been received:

17.2.1 if sent by fax, when received in legible form;

17.2.2 if given by hand, at the time of actual delivery; and

17.2.3 if posted, on the second Business Day after the day it was sent by prepaid first-class post.

A notice or other communication given as described in clause 1717.2.1 or clause 17.2.2 on a day that is not a Business Day, or after normal business hours, in the place it is received, shall be deemed to have been received on the next Business Day.

17.3 Receipt by Lender

Any notice or other communication given to the Lender shall be deemed to have been received only on actual receipt.

 

 

18. Governing Law And Jurisdiction

18.1 Governing law

This Deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

18.2 Jurisdiction

The parties to this Deed irrevocably agree that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Deed or its subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of the Lender to take proceedings against the Borrower in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

18.3 Other service

The Borrower irrevocably consents to any process in any proceedings under clause 18.2 being served on it in accordance with the provisions of this Deed relating to service of notices. Nothing contained in this Deed shall affect the right to serve process in any other manner permitted by law.

This document has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.

 

Schedule 1

Property

The freehold property registered at the Land Registry under title number

Executed as a Deed by

in the presence of:

 

Witness Details

 

Signature:

 

Name: (block capitals)

 

Address:

 

 

 

Occupation:

 

 

 

 

 

Executed as a Deed by

in the presence of:

 

Witness Details

 

Signature:

 

Name: (block capitals)

 

Address:

 

 

 

Occupation:

Edited January 10, 2015 by citizenB
spaces to make reading easier

[Worriedhomeowner2015]

Sorry it's so long. I am pretty sure he has covered every angle he's a bit of a know it all and likes control. I accept that this is all my fault.

[Conniff]

This seems to be a standard agreement but with some amendments. I see nothing in there that says the agreement can be terminated at any time by the lender or that the lender can ask for full realisation.

The only clause in this one sided agreement with some unfair terms is 'enforcement on default' but you say you have never defaulted.

 

 

Has he said what will happen after the five days if not paid ?

 

 

Five days wouldn't hold up as 'fair notice' anyway.

 

 

You also say this was a loan from a friend. Was the loan in his name or a business name as there are mentions of VAT but if this is a personal loan from a friend, then VAT does not enter into it.

 

 

Is there any other interest on the house ie from a bank/building society ?

[Worriedhomeowner2015]

His solicitor wrote to me advising me to settle the balance in full within 5 days because I failed to do so they have commence possession proceedings which refer to clause 8.2.1 of the deed, the failure to pay within 5 days. I assume because I didn't repay within 5 days I have defaulted.

 

I am struggling to find advice as all other posts relate to mortgages or secured loans with banks.

 

I am due in court next month and am petrified.

[Worriedhomeowner2015]

He lent me the money as an individual although he did transfer the monies from his company account which is a limited company. The only other charge is my mortgage with HSBC.

[Conniff]

Please don't be worried at all about court. It's not the sort of court you see on tv, it is very informal and you sit around a little table in a room. There are no wigs and cloaks etc.

 

 

One thing is very very important, you 'must' attend the court so you can talk to the judge and tell him the real story.

 

 

I can't see how you have defaulted as I see nothing that says he can requirement full payment on demand.

 

 

Perhaps someone else can take a read through and see if I have missed something.

[Worriedhomeowner2015]

Thank you for replying.

 

Below is the clause that the particulars of the claim refer to:

 

8.2.1 the Borrower fails to pay within 5 Business Days after the due date any sum payable by her under this Legal Charge

 

I would really like to know whether or not my case will be handled differently as the lender is an individual. Is there any hope at all that the judge will suspend possession?

[Ell-enn]

There is a clause which says the borrower defaults if they do not pay on the due date but I can't see a due date ?

 

However it also states that the borrower should pay within 5 days of the lenders demand for payment.

[Conniff]

I read that but you say you are not in default. Have you been late with payments, does that clause, (even though there is no due date), have any standing ?

[Old Cogger]

would unfair contracts come into play, as the length of time seems hideous for a CCA contract?????????????

[caro]

I notice that the agreement says this is the first charge? Do you agree that's right or is it HSBC?

 

Also I notice this clause which may explain why this has happened.:-

 

Security Period the period starting on the date of this Deed and ending on the earlier of (a) the date on which the Lender is satisfied that all the Secured Liabilities have been unconditionally and irrevocably paid and discharged in full and no further Secured Liabilities are capable of being outstanding and (b) the 2014;

[Conniff]

HSBC would have first claim

The Charged Property is free from any Security other than a charge dated 5 March 2013 in favour of HSBC Bank plc

So HSBC must have got there first or it wouldn't be mentioned.

 

 

Is there a typo here: " Secured Liabilities are capable of being outstanding and (b) the 2014;" as it doesn't actually make any sense and I don't think you can just put a year and them claim it ends on the first day of that year.

If that is what they mean, then it could be argued that it can end on the last day of the year.

[Worriedhomeowner2015]

There is not a due date for payments stated on the agreement, not even a frequency for payments that I am aware of.

 

There are no late payments my only default is that I didn't repay the full amount within 5 days.

[Worriedhomeowner2015]

Yes. HSBC have the first charge.

[Conniff]

Have you received a request/demand with a date five days earlier requesting/demanding full payment ?

[Worriedhomeowner2015]

Yes I received a letter from his solicitor before Christmas demanding payment within 5 days I advised them that I could not possibly pay that amount.

[Conniff]

I see nothing in the so called deed that allows an immediate demand for full payment.

 

 

I think we might just be pushing the boundaries of harassment here.

[caro]

Yes. HSBC have the first charge.

 

The lender would need permission from HSBC to get possession I believe.

[Worriedhomeowner2015]

There is the below clause:

8.2.1 the Borrower fails to pay within 5 Business Days after the due date any sum payable by her under this Legal Charge

[Conniff]

What due date, there is no due date in the deed ?

[Conniff]

The lender would need permission from HSBC to get possession I believe.

 

 

And unless there is severe defaults and very little hope of making payments in the future judges are very reluctant to make an order, in fact I've never seen one.

 

 

I see no cause or justification to demand full payment.

[caro]

Clearly the loan will need repaying at some point, and with a so-called friend like this, the sooner the better.

 

Are you in a position to negotiate affordable repayments over a period of time?