Opinions on where I stand

greenspun.com : LUSENET : Repossession : One Thread

I purchased with my first wife a property in late 1988. She worked for a bank and recieved a Mortgage subsidy. I have a letter from the BS stating that they have no record of asking for or recieving proof of this subsidy at time of Mortgage inception but feel that they must have considered it as our incomes did not meet their lending criteria. After a messy divorce (partially induced by the financial stress that this mortgage placed on us) we agreed to sell the property. I notified the BS of my new address. My ex wife continued living in the house during the marketing process and then decided that she wanted the house herself. I attended the local BS branch and signed a Transfer Subject to mortgage in early 1991 and never heard another word on the subject. In April of 1992 I emigrated in order to start a new life with my new wife. I returned to the UK in 1998 with my wife and three young children. In the middle of 2001 I recieved a letter from a collection agence saying that I owed over 27,000 on this mortgage. A mortgage that I thought was now in my ex-wifes name. The BS has supplied me with copies of correspondence and various info (Not the Deeds - they told me to get this from the land registry as they do not have them, Not the MIG, Not the Valuations and the Have said that they have No Money Order Judgement.) All of the correspodence has been addressed to the mortgaged property (except one or two pieces dated after I had emigrated) including a letter staing that the Transfer subject to Mortgage was unsucessful, hence my not being aware that I was still obligated. Also the Notice of sales was addressed to the reposessed property. Surely this cannot be right as this is the property that they sold on the day that the letter was dated, had been in their posession for 6 months and the property where they had the letterbox secured with screws. Six years from date of sale is up on the 27.1.2001 which is why they are really pushing for a completed Financial Analysis with threats of court action. Also does anyone remember what the interest rates were in the early '90s. They were charging this account 15.4%. Any words of wisdom would be welcome.

-- Tim Heath (tim@computerlogistix.freeserve.co.uk), January 07, 2001


Sounds like you are in a good position for two reasons:

1. they are already showing signs of having lost some of their paperwork and it is difficult for them to fight a borrower who disputes the detail of their claim if their files are incomplete. I'm talking about the alleged mortgage subsidy here.

2. They are showing signs of unwillingness to hand over the mortgage deed. When they say you should get it from the Land Registry they are talking about the *title deed*. This is a different thing to the mortgage deed. The mortgage deed is part of the contract that you and the lender set up when you signed for the mortgage. They will not want to hand it over to you for reasons that are dealt with very fully in the Repossession section of this site. You should insist - politely, always politely - that you cannot help them until they have supplied you with the mortgage deed and all other documents that set out the terms and conditions of the mortgage and its attached financial instruments (MIG policy and MIG marketing literature, etc).

They will refuse and continue to threaten you. You should respond to each refusal with a polite request that they supply those documents.

Just keep this up. I'll leave you to read the rest of the site and see why this is so.

By the way, please name the lender and their lawyer in response to this post. Other people may be considering taking out a mortgage with them and should be given the opportunity to make more informed decisions.

Hope this helps,


-- Lee (repossession@bigfoot.com), January 08, 2001.

Thanks for your comments Lee. They are reassuring. The lender in this case is Halifax.

-- Tim Heath (tim@computerLogistix.freeserve.co.uk), January 09, 2001.

Yes, it is very important not to confuse (and allow the lender to confuse) the title deed with the mortgage deed.

Everyone should be asking for the mortgage deed (& conditions), and not the title deed. Don't let the lender try to throw you off the scent.

If your repossession was over six years ago, and there is no Money Judgement, then the lender's claim is presumably resting on the terms of the mortgage deed, and so it will need to be produced any court proceedings. Therefore you are entitled to see it during the 'negotiation' stage (ie, you say: show me I'm liable and I'll consider a reasonable settlement), according to Civil Procedure Rules. The lender would certainly have to produce it during 'discovery' (ie the period after it issues a writ).

By the way, the six years (if it is a simple not a specialty debt) doesn't necessarily start from the date of sale. It may well start from the repo date, and there are opinions that it starts from the default which leads to the repo. (See one of this site's Newsletters from last summer, which quotes a counsel's (barrister's) opinion.) So you could, according to some apparently informed opinion, be well over the six year limit.

Unfortunately, the application of the six year limit to mortgage shortfall recovery has yet to be tested in the Court of Appeal. (Interesting that the lenders haven't proved their interpretation of the Limitations Act, with all their resources, isn't it?)

Like Lee says, see Repossession for the reasons why this matters.

To be honest, most readers of this site with shortfall problems will get a lot of mileage out of simply asking the lender to justify the price it sold the repossessed property for, and querying the way in which it was valued and marketed.

-- Eleanor Scott (eleanor.scott@btinternet.com), January 12, 2001.

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