I have now asked Bristol and West 3 times to provide me with a copy of the MIG - they always refuse - their latest response being "I reiterate my comments regarding the Indemnity Insurance, the policy was between the Bristol & West and the insurers and therefore you are not a party to the policy and not entitled to see it."

Also, they sent me the terms and conditions (dated 1986) relating to the mortgage taken out in 1988 - how do I find from these terms if this is simple or specialty debt? I don't see any sections that mention shortfall? I don't have access or funds to contact a UK lawyer so wonder if there is anywhere on the web I can review copis of deeds that have the necessary wording to denote simple or specialty so I know what to look for amongst all the legal jargon. Thanks

-- jen p (jlzmail@adelphia.net), May 14, 2002

Answers

Jen,

Regarding the necessary wording on your title deeds. I have recently received a very interesting article from Lee written by a barrister (Philip Rossdale). My interpretation of it(but I'm no legal expert) is the following:

1)that since 1783 up until 26th September 1989 (or prior to 1995?)the deposit of title deeds or subsequent land certificate,by a debtor with his creditor creates an equitable security;whether accompanied by the debtor's writing or not. This I take to mean that it is classed as a Specialty? Perhaps someone else can confirm it means this. 2) On the 27th September 1989 when the Law of Property (Miscellaneous Provisions) Act came into force many solicitors thought such a deposit still created an equitable security. However, after a Court of Appeal decision "United Bank of Kuwait v Sahib 1996" it was held that the deposit of a land certificate or title deeds as security without a writing signed by both parties complying with s2 of the 1989 Act may enable such individuals to say that the security is invalid and that in the case of a an insolvent estate,there would only be an unsecured debt. Which I take to mean that it isn't a Specialty! But I'm no expert, any comments? I have passed the article on to Sue Edwards at NACAB and asked her a number of questions on this , and for her evaluation of it.If I hear anything more I'll post it here. If you want to see the details of the case you can find it on "www.macdonald.butterworths.co.uk". If you want a copy of the article by Philip Rossdale ask me.

Mark.

-- M Amos (idgroms@hotmail.com), May 14, 2002.

Unfortunately Mark, Section 2 of the 1989 Act will not help jen p in this case - it only applies to mortgages dated after 27/09/1989.

As for the simple/speciality question - it may be worthwhile trying to get copies of any further/later editions of the clauses/terms & conditions.

The reason being to see if there are any interesting additions and alterations which seem to add the provision that any money owing on the mortgage, is, or will be treated as a speciality debt. If they have been altered, then as far as I can see, the probable reasons for any alterations could be:- "The previous clauses are open to misinterpretation" "They have been changed to close possible legal loopholes" "They have been changes because of a court case/case law"

Hope this helps Stephen

-- (stephen.pooley@ntlworld.com), May 14, 2002.

Chris,

I did realise that this wouldn't help Jen,I'm in the same boat,my deed was from Feb 89, but there does seem to be some confusion with some people saying( I believe) that prior to 1989 "it is by no means certain that all older mortgage deeds contain the required phrase or clause that would turn a shortfall debt into a specialty debt". All I was trying to do was to say that Mr Rossdale's article doesn't seem to infer this, " the deposit of title deeds by a debtor with his creditor creates an equitable security whether accompanied by the debtor's writing or not" (Megarry & Wade). What is this magical required phrase or clause? Can we take deeds prior to 89 as all being Specialty or are their still loopholes? I imagine only a lawyer can only really tell, by looking at the deed.

Mark.

Jen can you confirm when your building society first contacted you.

-- M Amos (idgroms@hotmail.com), May 15, 2002.

The first contact I had with them was in March 2002. However, I realise now that a call I received in January, from "Fleet" couriers - in Teddington (who I called and denied all knowledge) saying they had a package to deliver to me was obviously someone the BS used to get my address. I got a red flag after I spoke with this alleged courier as everyone knows I've been in the states for 10 years and I was a little concerned to be getting a package especially as the Anthrax deal was going on at that time in our area. The "courier company" had only a few minutes earlier called my dad's house to find my address. Obviously I cannot prove this although it's pretty obvious, but why did the building society never bother to call or contact me in the 8 years prior?? I think that's what's bugged me the most - they've always been able to get in touch with me if they wanted - so why wait so long!!!

-- jen p (jlzmail@adelphia.net), May 15, 2002.

Jen,

These are extracts taken from the Council of Mortgage Lenders web site: "www.cml.org.uk/servlet/dycon/zt-cml/cml/live/en/cml/pub_info_dept", I think it would be a good idea to see if your lender is on the list. Read everything on the web page though, as there are exclusions.

In addition, from 11 February 2000, lenders who are members of the Council of Mortgage Lenders have agreed voluntarily that they will begin all recovery action for the shortfall within the first six years following the sale of a property in possession. Anyone whose property was taken into possession and sold more than six years ago, and who has not been contacted by their lender about recovering any outstanding debt will not now be asked to pay the shortfall. The Association of British Insurers supports this approach on behalf of the mortgage indemnity insurers.

All lenders which subscribe to the Code have now agreed to adhere to it whether they are a CML member or not. You can check whether a lender subscribes to the Mortgage Code by phoning The Mortgage Code Compliance Board on 01785 218200.

I'd be grateful if you would let me know if they are on the list.

Mark.

-- M Amos (idgroms@hotmail.com), May 15, 2002.